District Court extends Child Care Act 1991 Care Order and sets review date for parental rehabilitation.

[2017] IEDC 02

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

RC

FIRST NAMED RESPONDENT

-AND-

CF

SECOND NAMED RESPONDENT

IN THE MATTER OF THE CHILD, Child C

CHILD CARE ACT 1991 – SECTION 18 (1)

CARE ORDER

[Note: This version of the original decision delivered is PREPARED for THE PURPOSE OF Publication. Any changes from to the original

are intended only to be as to form and not as to substance, AND ARE for the purpose of reducing the possibility of identification of

the children.]

1. I heard evidence in this application to extend a Care Order made under section 18 (2) of the Child Care Act by a presiding District

Court judge. The case is about a Child who shall be referred to in this decision as “Child C” as nothing must be reported concerning

this case which would serve to identify the child or the parents who are the subject of these proceedings.

2. The child’s parents are the first and second named Respondent and only the second named Respondent has participated in the

current proceedings.

3. The first named Respondent was the only parent present in court and represented in the original proceeding for a Care Order which

were determined by the Court in 2015. However, at the hearing of the case brought by the Child and Family Agency to extend the

Care Order which came before me there was no appearance by or on behalf of the mother. Both parents were in court for the delivery

of the judgement.

4. The child’s separate interests in the proceedings were highlighted by the Guardian ad Litem, who was also represented by his

solicitor.

5. I am satisfied that service of the proceedings on each of the parents was duly affected and I am satisfied that the Dublin

Metropolitan District has jurisdiction to hear this application.

BACKGROUND

6. There is a lengthy history to this matter which was outlined in the course of the Summary of Facts contained in the written

decision of the Presiding District Court Judge in 2015.

7. The Care Order made in respect of Child C was for a period slightly in excess of 18 months to enable the mother to address the

issues in order to “get her act together and stabilize her life so that she could regain custody of Child C.”

8. To address the proportionality of the duration of the Order while balancing the rights of the parents and Child C, the Court provided

for a full review several months from the date of that Order. It was provided that in the event that the mother did not take significant

steps on the path outlined in the decision of the Presiding District Court Judge at the Review stage the Applicants should apply for an

extension of the period of the Care Order at that time. The rationale was that this would provide the mother with a real goal in terms

of turning her life around.

9. There was no appearance by the father in the context of the hearing before the Presiding District Court Judge delivered in 2015.

However, the father appeared in court before me seeking that the Court give him a period to address his issues and asking that the

Court not make an Order in respect of Child C until she attains the age of eighteen years at this time.

10. The father’s position was stated to be that he has now separated from the mother and has gained traction on his addiction

issues. His evidence was that he is now clear of all substances having detoxed in a relatives home over the Christmas holiday period.

He stated that his relationship with the mother ended before the Christmas holidays and he returned to his parents’ home. He

regretted his lack of engagement with the Social Work Department and his failure to make arrangements to attend access with his

child for the last eighteen months. In essence, he seeks time to put his life in order now and demonstrates his capacity to be a

parent to his child.

11. The mother did not appear and was not represented in these proceedings.

12. The Child and Family Agency has applied for a Care Order in respect of Child C until she is eighteen years and this application is

supported by the Guardian ad Litem. The Guardian’s evidence was that if the parents or either of them had been working in

partnership with the Child and Family Agency and evidenced a capacity to change their lifestyle and engage consistently in attending

access with their child he might have supported the making of a shorter order, however, neither parent had in fact taken any such

steps.

13. Child C has been living with her foster carers since she was an infant. Her experience of neglect in the care of her parents had

considerable impact on her when she was placed in foster care and her demeanour and affect have improved greatly since the date of

placement. She is now meeting all her milestones and is doing well and has access to her maternal grandmother, but not with either of

her parents. She has formed a close attachment to her foster carers.

14. I have heard the evidence of:

• the Allocated Social Worker;

• the father;

• the Guardian ad Litem.

THE LEGAL POSITION

15. The relevant law to be applied is well established. In summary:

(A) The burden of proof lies on the Child and Family Agency and the standard of proof is the on the balance of

probabilities;

(B) The threshold to be established by the Child and Family Agency is set out in section 18 (1) of the 1991 Act;

(C) The Court must determine whether the threshold has been reached in the case having regard to the evidence

adduced and having regard to the rights of the parents whether under the Constitution or otherwise and also the

Constitutional rights of children set out in Article 42A and under the 1991 Act;

16. Even where the threshold for State Intervention has been reached the Court must consider the issue of the proportionality of the

Order granted.

17. Having heard the evidence set out in this case and the legal submissions of the parties, I conclude on the evidence adduced by

the Child and Family Agency that on the balance of probabilities that Child C’s health, development and welfare is likely to be

avoidably impaired or neglected into the future unless the Court makes an order under this section. I find on the evidence that it is

necessary to make the Care Order under section 18 (1) (b) and (c) of the Act of 1991 as amended until the child reaches eighteen

years. My reasons for making this order for this duration are as follows;

(i) The Order of the Presiding District Court Judge was made for eighteen months to allow the mother to put her life

in order. There was nothing in that Order directed towards the father. However, he was aware of the making of the

Order and was equally aware that he could also use that period to effect changes to his own lifestyle and

relationship with the mother which would enable either or both of them to parent the child;

(ii) The father was not certain during his cross examination whether he was still on drugs in 2016. The father’s

evidence was not clear on this point;

(iii) Neither parent has engaged in any purposeful way over the last eighteen months to develop a relationship with

the Social Worker in this case or with the child through access.

18. Accordingly, at this time the Court must acknowledge the rights of the child to have her welfare assured though the making of an

Order which will provide her with certainty and security by default. Should the father or mother or either or both of them gain traction

on their addiction issues and sustain a drug free lifestyle for a sustained period and engage consistently in access and develop a

relationship with the child to assure her of their ability and capacity to parent her it is open to them to apply to this court to

discharge the Care Order at that time.

19. Unfortunately, neither parent is in a position to do so at this time. Accordingly the duration of the Order should be until she

reaches eighteen years. I am satisfied this decision is proportionate on the evidence adduced and having regard to the following:

(i) the right of the child to have security in her placement;

(ii) the right of the child to have a relationship with her parents and to be able to recognise them;

(iii) the right of either parent to engage with the Child and Family Agency and seek their support and assistance in

all manner necessary to enable them build a relationship with Child C through consistent and sustained access;

(iv) the right of either parent to demonstrate their capacity to act as Child C’s parents.

20. Therefore, I believe that having regard to section 24 of the 1991 Act I must make the Order until Child C is eighteen years.

21. I approve the Care Plan and note the Guardian ad Litem’s approval also.

22. Having heard the evidence set out above, I direct that access between the parents be in accordance with section 37 of the 1991

Act. The parameters of section 37 of the 1991 Act must be respected and should respect the rights of all concerned, parents and the

child to preserve their family relationship. Access should take place in manner which secures the short and long term benefits of

access by the parents with Child C.

23. I excuse the Guardian ad Litem with costs to be paid by the Child and Family Agency and taxed in default of agreement.

SECTION 47 DIRECTIONS

A. I direct that this case is reviewed by this court in 12 months to assess the progress made by each parent in terms of

addressing their addiction and attending at access with Child C. In the event that either of the parents or both of the

parents are able to achieve this, then they can bring an application to discharge the order at that stage.

B. The Child and Family Agency is directed to provide each parent with all supports necessary to assist each of them

participating meaningfully in access visits with Child C having regard to the plan based on the child’s best interests. It

must be respectful of the rights of the parents.

C. I direct that the Child and Family Agency provide the parents with all necessary remedial and therapeutic services. I

also direct that the that the Child and Family Agency provide Child C with all necessary remedial and therapeutic services

as identified in Guardian ad Litem Report and the Social Worker’s Report and that the Care Plan be updated in this

context.

D. Under section 47 of the 1991 Act, I direct that the case is to be re-entered before the Court by the Child and Family

Agency (on notice to the Guardian ad Litem) in the event that:

(i) If the case becomes unallocated to social worker for a period of four weeks;

(ii) If the case becomes unallocated to a fostering link worker for each of the child’s foster parents for a period of

four weeks;

(iii) If the Child and Family Agency (for any reason) failure to adhere to the statutory Care Planning regulations;

(iv) Should the child’s current foster placements break down or should the Child and Family Agency seek to change

the child’s current foster placements.

E. The case is to be re-entered before the Court by the Child and Family Agency (on notice to the Guardian ad Litem) for

the purposes of After Care Review on the nearest court date to her sixteenth birthday should she remain in the care of

the Child and Family Agency at that time.

F. The Guardian ad Litem is to be re-appointed six weeks before the date of re-entry.

G. If the Guardian ad Litem in this case is no longer available at that time then the Child and Family Agency is to bring an

application to the Court pursuant to section 23 of the 1991 Act for the purposes of having a Guardian ad Litem

appointed.

24. In terms of reporting this case nothing is to be reported or broadcast which would lead members of the public to

identify the child or any of the parties involved in the Child Care proceedings. This is the legal position since the Courts

and Civil Law (Miscellaneous Provisions) Act 2013 became law.

25. The Child and Family Agency should write to the mother who has now left the Court precincts before the conclusion

of the case of her of her right to appeal this Order within 14 days of this Order.

Rosemary Horgan

District Court Judge