District Court dismisses Care Order application as parents meet welfare threshold and child remains in foster care.

[2017] IEHC 25

THE DISTRICT COURT

AN CHUIRT DUICHE

DUBLIN METROPOLITAN DISTRICT

BETWEEN:

CHILD & FAMILY AGENCY

Applicant

-and-

E.R. AND J. G.

Respondents

And

Guardian ad Litem Dr L. O’R

1. This is an Application for a Care Order pursuant to section 18(1) (b) and (c) of the Child Care Act 1991. This Section provides for

the making of a Care Order committing a child to the care of the Child and Family Agency for as long as the child remains a child or for

such shorter period as a court may determine. The Court must be satisfied that the child’s health, development or welfare has been or

is being avoidably impaired or neglected or the child’s health, development or welfare is likely to be avoidably impaired or neglected

and that the child requires care or protection which he/she is unlikely to receive unless the court makes an order under this section.

The burden of proof lies with the Child and Family Agency. The Standard of proof is on the balance of probabilities.

2. The Court proceeds on the basis of evidence, submissions and all agreed admitted documents and having fully considered all the

evidence and admitted documents and submissions including assertions filed to the court as to the facts to be found submitted in this

case by the Child and Family Agency and all and any contrary responses from both Respondent parents filed in this case and

considered by the Court.

3. The Court also has the benefit of the evidence of a Guardian ad litem to the subject child appointed pursuant to section 26 of the

Child Care Act 1991. This section provides for a Guardian ad litem to be appointed for the child if the Court is satisfied that it is in the

interests of the child and in the interests of justice to do so in specified proceedings under the Child Care Act 1991 when the child to

whom the proceedings relate is not a party to the proceedings. The role of the Guardian ad litem so appointed has been the subject

of High Court obiter dicta comment by Ms Justice Baker in the case of A O’D v. Judge Constantine G.O Leary and CC The Child

and Family Agency and Val Kerr Guardian ad litem [2015 no. 420 JR] [2016] IEHC 555, where the High Court, inter alia, at

paragraph 57 opined

“… I consider that the function of the guardian appointed under section 26 is to represent the child in the litigation and

to promote the interests of the child and the interests of Justice”

And at paragraph 105 stated

“I consider that the Oireachtas intended the appointment of a guardian to be a means by which a child could engage in

the litigation…a child who is represented by a guardian ad litem is to be treated as having full procedural rights to

engage in the proceedings.”

4. These proceedings and Decisions of this court on the Facts found in any case must be made in accordance with the law which is

to be found in and embodied in the Constitution, the Acts of the Oireachtas, The European Convention on Human Rights and Children’s

Rights and the interpretations laid down by Courts on fair procedures and the legal principles to be applied in reaching decisions on

the facts of each particular case.

5. Without prejudice to the generality of Law applicable and binding on this Court to be applied to the facts as found by the Court in

making this determination I think it is important to quote the Constitutional imperatives set out in Article 42A The 31ST Amendment of

the Constitution (Children) Act 2012 which apply to the Court in its determinations:

“The State recognises and affirms the natural and imprescripitible rights of all children and shall, as far as practicable,

by its laws protect and vindicate those rights in exceptional cases, where the parents , regardless of their marital

status, fail in their duty towards their children to such an extent that the safety or welfare of any of their children is

likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided

by law , endeavour to supply the place of the parents but always with due regard for the natural and imprescriptable

rights of the child.”

6. Section 24 of the Child Care Act 1991 imposes a duty on this court to regard the welfare of the child as the first and paramount

consideration and in so far as practicable give due consideration having regard to his age and understanding to the wishes of the child

but having due regard to the rights and duties of the parents.

7. Section 3 of the Child Care Act 1991 inter alia imposes a mandatory obligation on the Child and Family Agency in performance of

their functions to have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.

The rights of family are constitutionally protected by Articles 41 and 42 of the Constitution;

8. There is also before the Court for determination an application pursuant to section 37 of the Child Care Act, 1991, on behalf of the

respondent father seeking the Court to make a formal Order in the terms sought as regards access to occur between the infant child

and the respondent father.

9. This case proceeded over five days. All parties were legally represented including the Guardian ad litem. Evidence was adduced

viva voce from the following witnesses and all parties were afforded full rights to examine, cross examine and re-examine. No issue as

to any allegation of breach of fair procedures was raised by any of the parties at the Hearing of this case;

(i) M.D., Social Worker allocated and working on the case October 2012 to May/June 2015.

(ii) D.H., Access worker who facilitates and has facilitated access between child and Respondent father

(iii) Dr. P.Q., Clinical Psychologist who conduced an assessment of the Respondent father on terms of reference that were

agreed.

(iv) S. D., Social worker on case August 2015 to May 2016.

(v) E. O’R., Social Worker from October 2016 to current time working on case.

(vi) evidence was heard from E. R., Mother

(vii) J. G., father and

(viii) the Guardian ad litem appointed to the child.

It is the practice and understanding of this court that The DAR recorder (presumed to be functional) was running for the entirety of

the proceedings.

10. The child the subject of the proceedings is “Child K” born on the 6th June 2013 and is the daughter of E. R. and J.G. The child

was described to the court as a delightful, engaging, and highly intelligent.

11. At the outset the parties indicated their positions on the Application pursuant to section 18 as follows:

a) CFA Seeking a care order until the child reaches 18 years old on basis that the threshold for state intervention is

established in this case under sections 18 (1)(b) and (c) of the Act and an order until the child’s 18th Birthday is

necessary and proportionate in the child’s welfare to be made .

b) Mother agreeing with the position of the Child and Family Agency to a full care order under sections 18 (1) (b) and(c)

until child reaches 18 years, provided the child is placed with her current foster carers with whom she first resided on a

voluntary care basis when approx 6 weeks old, the child being now 4 years and some months old. The consent of the

mother is stated to be on condition that the child is placed in her current placement and is not moved.

c) Father agrees that he is not in a position to care for child at this time but plans and wants to resume care of the child,

and put in place what he needs to do to ensure that he is in a position to resume care of the child. The father estimates

and asks this court to make a care order for 2 years and an access order in the meantime that will facilitate the ongoing

work on the relationship between father and daughter. The father sees as the main items of work to be done namely his

housing and his financial situation to be at a level that he can care full time for his daughter.

d) The Guardian ad litem who paints a picture of a very bright engaging child with strong opinions is advising the court to

make an Order to the child’s 18th Birthday with a review in 12 months time to review the child and the parent’s

circumstances. The Guardian believes this represents the wishes and welfare of this child at this time.

12. This Court does not propose to restate the evidence furnished to this Court, but to summarise findings that this Court is making

on the facts as evidenced throughout the proceedings. Any reference to any particular evidence is not to be construed and or

interpreted as the Court not having considered all the evidence in this matter, the court having considered all matters presented and

the subject of the hearing herein.

13. FINDINGS OF FACT

a) Child K is the child of E.R. and J.G.

b) E.R. and J.G. had a volatile, unstable, on/off relationship which was unpredictable for a period of approximately 3 years

before the child was born. There is no evidence before the Court that a committed, stable relationship existed with the

parents living while consistently together throughout the relationship. In fact the contrary is the case, with the parties

disputing only the times when they did or did not live together, and the times of when and if there were allegations of

domestic violence and controlling and unstable behaviours. The nature of the relationship as unstable and abusive and as

being “on-off” I find as a fact, and on an overview of the evidence of the parents I believe this is accepted as a fact by

both of them. J.G. was not present at the birth of the child. He presented at a different maternity hospital (where the

child was not delivered) asking about the child three days after her birth, and had to be removed for his perceived

aggressive and violent demeanour from that hospital.

c) E.R. applied for and was granted a Safety Order under the Domestic Violence Act for a period of two years on the 3rd

day of July 2013. The relationship was characterised by allegation, counter allegation, violence, aggression, instability and

uncertainty. It was not a stable relationship. E.R. unfortunately has to endure the severe difficulties and impediments to

achieve good enough parenting, inherent and consequent upon her mental health difficulties, which include episodes of

debilitating depression and anxiety, erratic behaviours and suffering from stress and episodes of suicidal ideation and self

harm. In addition E.R. has had periods of substance misuse in relation to drugs and alcohol.

d) I am satisfied that Ms R is now getting treatment for her mental heath issues which regrettably for her are currently an

ever present , real feature of her life now and anticipated to continue into the future requiring full time management. I am

satisfied that Ms R has dealt with her substance abuse issues and I accept her evidence that the last occasion of drug

misuse was with Mr G in 2016/17.

e) I accept E.R.’s position that she is not in a position to care for her daughter, that her daughter is happy where she is.

I note that there is a strong and very loving bond between E.R. and Child K, that the Child K needs and wants to see her

mother on access and that, to her credit, E.R. has established an excellent working relationship with the current foster

carers and is grateful and relieved that Child K is well cared for and loved in her foster placement. E.R. is not always

feeling medically fit to have access but when access occurs I accept as a fact the view of the professionals that a very

natural and loving bond is evident between the child and her mother. E.R. does not believe that the child’s best interests

would be served by the child being cared for by J.G.

f) I am satisfied that except for periods when this child was in care, which were extensive and date back from when the

child was approximately 6 weeks old, that E.R. was the primary carer for the child.

14. In short on the facts presented to me which are not in dispute on a time count alone this child has spent more time in the care

and home of her foster carers who have been the same couple throughout than in the care and/or company of E.R. and/or J.G.

15. As regards J.G. I find as a fact that J.G. has the presentations and characteristics of the diagnosis stated by Dr. P.Q.

a) Dr. P.Q. was commissioned to conduct A Parenting Capacity Assessment of J.G. The terms of reference and specific

matters to be addressed by the Doctor were agreed by J.G. who had the benefit of legal advice. Mr G participated in this

Assessment.

b) Dr. P.Q. diagnosed J.G. as presenting with Paranoid Personality Disorder and possibly emotionally unstable personality

disorder (impulsive type). J.G. has been controlling, violent, threatening and aggressive in his domestic life with E.R. and in

his dealings with professionals of the Child and Family Agency. J.G. has made the most serious threats against personnel

of the Child and Family Agency. He has also complained of being overlooked and not considered by the Agency when the

child was the subject of several and recurring admissions to voluntary care during her very early years. He contends that

he was ignored in breach of his rights, and that of his daughter, until he was appointed a legal Guardian to the child in

October 2015. I do not accept that this is the case. I find that J.G. at that time did not present to the Agency in a

manner that afforded them a real opportunity to engage with him. By virtue of his own behaviour around E.R. and the

Child and Family Agency he rendered the situation such that he did not afford and/or engage with the Child and Family

Agency in a manner that enabled them to assess the role he had/could of had in his daughter’s life at that time.

c) I accept the opinion of Dr. P.Q. in regard to the presentation of J.G. and I accept the diagnosis and recommendations

made by Dr. P.Q. Dr. P.Q found J.G. was very highly motivated to care for his daughter and is trying very hard. The time

of Dr. P.Q.’s assessment and report was circa from the time of initial referral to him on the 14th July 2016 up to the date

of his report 19th day of January 2017. Dr P.Q. recommended counselling and supports for J.G. to include mindfulness,

interpersonal effectiveness, and emotional regulation and anger management therapies. I note that the diagnosis of Dr.

P.Q. is not accepted by J.G. In his evidence J.G. was clear that he does not accept the diagnosis but is taking steps for

counselling referral in general counselling terms.

d) I accept that J.G. has improved of late in his communication and demeanour with CFA Personnel but this is only of late

and it is to be noted that when this court refused an Interim Care Order in February 2016 J.G. did not cooperate with the

CFA and I accept the position of E.R. that it was J.G. who was instrumental in leading, deciding and dictating this course

of action. Furthermore, J.G. admitted a serious drug misuse history, but which he says is no longer an issue for the past

4/5 years. However in spite of requests, which I find were made clearly to J.G., to participate in urinalysis to clarify the

matter, he has refused to do this. The first recorded request for such urinalysis, which I find was clear and was made to

J.G., was at the pre-birth conference that took place on the 22nd February 2013. I do accept the evidence of E.R. that

E.R. and J.G. engaged in an episode of drug misuse in 2016/17. I am not satisfied that J.G. has been entirely accurate

therefore in the assertion to the court vis a vis drug misuse.

e) I accept and find as a fact that J.G. loves his daughter. I find that he has never been the primary carer of the child. I

find he was in the nature of a father with access and visitation to a child whose primary carer was not him. I do not

believe that a secure established bond exists at this time on the basis of the evidence presented to me in this case. I find

that the relationship of father and daughter and its nurturing is a work in progress and is a delicate matter that will

require sustained, real and consistent time, effort, support and investment from the Child and Family Agency to ensure

that J.G. is facilitated and supported in his relationship with his daughter. I note that J.G. has largely demonstrated his

ability to be the best version of himself when having access with his daughter save for some issues surrounding his

difficulties on the nomenclature, and name the child chooses for the foster father . I am satisfied that J.G. adores his

daughter, is very proud of her and loves her dearly.

16. I accept the opinions of the Social workers advanced to this court are well founded on the facts I find.

17. I accept the professional view and opinion of the Guardian as regards the child’s wishes and welfare are founded on the actual

reality and facts for this child in the individual circumstances of her life.

a) The Guardian ad litem describes the child as articulating her wishes through her behaviours. She is a kind, strong willed

and articulate little girl. She knows exactly what she wants and does not want, and is now beginning to express that very

clearly. She can stand her ground and be very comfortable in expressing her wishes.

b) As regards access the child is very relaxed and happy with her mother and subject to the mother being able for

access, access on a regular basis between mother and daughter is in accordance with the wishes and needs of the child.

c) As regards access with the father, the Guardian ad litem has observed the child being happy to see her father and the

father being age appropriate and gentle in his interactions with her and the father is accepting the child’s wishes if and

when she does not want to attend and/or wishes to leave the access early. The Guardian ad litem expressed the view

that the child can be hesitant about attending access with the father and in the Guardians view there is a concern that if

a short term Care order was made and this became known to the child that this could cause the child to be insecure in

her placement and could lead to the child refusing to engage in access with her father. This last scenario, in the Guardian

s view would most definitely be contrary to her welfare and best interests.

d) J.G. is very committed to access and has a good working relationship with the current access worker D.H. J.G. wishes

to continue building on his relationship with his daughter with a view to being considered for family reunification and taking

on the role of full time parent to his daughter. Any action or court order that could at any level inhibit the development of

the relationship between J.G. and his daughter would therefore be detrimental to the future J.G. is aiming for at this time,

and could adversely affect the relationship between the child and her father.

e) The Guardian presented to the court that the child’s secure attachment is with her current foster carers and that the

child’s behaviour in and around early 2016 when the child was returned to the foster carers after an unsuccessful attempt

at family reunification demonstrates the child’s view in this regard .

f) The child was particularly clingy and upset for a period after returning to her foster carers. Furthermore the Guardian

has observed the child to be eager to return to her foster carers as her home after access visits.

18. I must be guided by the wishes and welfare of this child when balancing the rights of her parents and the rights of the child to her

family rights, based on the particular and individual life experience of this child. The reality of this child’s life experience to date and

current attachments cannot be ignored. I can only make an order proportionate to the necessity for state intervention sufficient to

secure this child’s welfare within the context of the current statutory frame work for a child and applying to a child in care.

19. Having balanced all the rights in the matter and applying the law to the actual facts of this case I am satisfied to make an order

under section 18 (1) (b) and (c) for the duration of the child s minority but with Specific Section 47 Directions tailored to the specific

circumstances and needs of this child and her parents and with a specific Access order under Section 37 as regards the father and

mothers access. There will be a court review in 12 months time on the 26th day of November 2018 with Guardian ad litem

reappointed without further court order with the Purpose of this court review being to ascertain the progress of parents and in

particular whether, and to what degree if any, either parent can present to resume full time parenting of the child/ and/ or present for

shared parenting in the child’s life and to be updated on the child’s wishes and welfare at that time. This order is contingent on the

child being in her current placement. In the event that any change in placement is contemplated, re-entry must occur and both/

either parent will be given an opportunity to seek a Section 22 hearing date from the court in the event that either/both parents

indicate their view and request that such a hearing is necessary in the child’s best interests at that time, if applicable.

20. DIRECTIONS UNDER SECTION 47

a) Section 37 Access Order in the terms of the statutory provision and to include in particular the access to be child led

with an access plan in liaison with the child and the development of an age appropriate access calendar. The objective

must be access at a minimum in favour of the Respondent mother to occur one week each month and with Respondent

father three out of four weeks each month.

b) Access to be reviewed formally by the Agency on a regular and consistent basis initially at the end of each month.

c) Access opportunities to be afforded to the father whose access should continue to be facilitated until any further

court order to include father and daughter having time to explore their common interests in horses/ baking and any other

common interests they may share.

d) Access to include opportunities for the child to meet with siblings and /or extended family on both mother and fathers

sides.

e) Access opportunities to be explored that could incorporate opportunities for the relationship between the foster carers

and the parents to develop.

f) Access opportunities to include consideration of use of skype/facetime in accordance with the child’s welfare.

g) Access to include additional time and increased time in accordance with the child’s welfare and wishes in a manner

consistent with maintaining the bond between mother and daughter and building on the relationship between father and

daughter.

h) Access under section 37 and application of respondent father will be listed before the court on the 16th day of April

2018, with the Guardian ad litem reappointed without further court order 6 weeks in advance of this court date.

i) CFA to support Mr G and Ms R in having a positive working and good relationship with the Foster carers.

j) Matter to be re-entered in court by the Child and Family Agency and

k) Guardian ad litem to be reappointed in the event any of the following occurs:

i. If child /case is without an allocated social worker/fostering link social worker for a period in excess of 4 weeks;

ii. If statutory child in care reviews do not occur in accordance with the statutory time table to include

consideration at each statutory child in care review of family reunification and the wishes of the child;

iii. If any notification either oral and /or in writing comes to the attention of the Agency that the current placement

may not be sustained;

iv. If current placement is not long term matched end of March 2018

l) CFA to support Mr G in sourcing a Parenting Programme.

m) CFA to support Ms R in sourcing services to meet her needs

n) CFA to support Mr G in securing counselling/therapies suited to his needs.

o) CFA to keep both parents updated on the child’s health development and educational welfare.

p) CFA to explore opportunities for both parents if in accordance with child’s welfare to be part of significant life events

for the child e.g. the school play.

q) CFA to monitor and review on an annual basis or as is needed all health and in particular any therapy needs that may

arise for the child and source same for the child.

r) Court listing for after care plan on the 15th day in May 2030 and Guardian ad litem reappointed without further court

order 6 weeks in advance

s) CFA to make application pursuant to section 26 in event re-entry is needed as a result of any Order/ Direction herein

and current Guardian is no longer practising and /or available.

t) I have noted the costs applications made by and on behalf of the Respondent parents and I am adjourning same to the

16th day of April 2018 for the parties to exchange the legal basis for same, with the Child and Family Agency and for the

Agency to respond, and such exchanges are to be filed with the court in advance of the adjourned date on the 16th day

of April 2018.

u) The Guardian ad litem will be discharged in the current proceedings 3 weeks from now and is tasked in consultation

with both Parents and the Agency to inform the child in an appropriate child welfare manner of the Courts decision.

Marie Quirke

23rd November 2017