Foster carers' application for directions and hearsay admission dismissed due to lack of necessity and procedural withdrawal.

[2017] IEDC 03

AN CHUIRT DUICHE THE DISTRICT COURT

D&C

APPLICANT

-AND-

TUSLA, THE CHILD AND FAMILY AGENCY

RESPONDENT

IN THE MATTER OF SECTIONS 47 AND 27 OF THE CHILD CARE ACT, 1991 AND SECTION 23 OF THE CHILDREN ACT, 1997

[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. This is an application brought by foster carers under section 47 and section 27 of the Child Care Act, 1991 [hereinafter referred to

as the 1991 Act]. The Application under section 47 of the 1991 Act sought the Court’s directions on matters affecting the welfare of

the child in their care under a Care Order. The Application under section 27 of the 1991 Act requested the Court to procure a Report

from such person as the court might nominate on questions affecting the welfare of the child. The foster carers sought to base both

applications on the 'hearsay' statements of a child, and so they also brought an application to admit the hearsay statements that

they asserted the child had made, as provided for in section 23 (1) (b) of the Children Act, 1997. The said statements were set out in

Appendix 1 and 2 to the Notice of Application.

2. It is important to note that the foster carers of the child were relatives of the child and had been approved as her 'kinship carers'

pursuant to section 36 (1)(d) of the Child Care Act, 1991.

Background

3. The child’s mother gave birth to the child while she was a minor and living with her family who are now the kinship carers of her

child. The father of the child was living in temporary accommodation at that time. There were difficulties, and her family were

concerned for the mother's safety and that of her unborn child and so made a referral to the Child and Family Agency (hereafter the

Agency) seeking assistance.

4. The mother consented to place the child in 'voluntary care' with her family and she and her child lived in that household in

accordance with a Child Protection Plan which had been agreed upon between the mother, her family and the Agency).

5. The Agency arranged for a formal independent 'Risk Assessment' which was undertaken when the mother was expecting her child.

This assessment concluded that, at that time, she had communication, perceptual and other difficulties which acted as impediments

to her being solely responsibility for the care of a very young child. The Assessment concluded that she needed support in order to be

able to safely parent the child. Following the birth of the child, The Agency sought and was granted an Emergency Care Order on the

basis of evidence appropriately adduced before the Court.

6. An Interim Care Order followed the Emergency Care Order which was extended from time to time pending the full hearing of Care

Order proceedings. It must also be stated that in the intervening period there were ups and downs for the child, her parents and the

foster carers.

7. The Court appointed a Guardian Ad Litem for the child. This was and remains a complex case, but an enduring theme throughout

(set out in both the allocated social worker and Guardian Ad Litem reports) was the complicated relationship difficulties between the

mother and her family, and their enduring concerns and apprehensions around their daughter’s commitment to and relationship with

the child’s father.

8. In 2013 an Interim Care Order was granted with the consent of the child's parents for a one year period with the goal of enabling

the mother to reside at home with the kinship foster carers and her daughter. The father was to have regular unsupervised access

with the child during the period. Therapeutic supports were to be provided to the mother during that period also. The Guardian Ad

Litem supported this plan considering it to be sufficiently robust, considerate and respectful to the complexities presented in the

case.

9. The father became a legal Guardian of the child by Court Order and her birth certificate details were amended to reflect the change

of the child's surname to his father's surname. A significant set-back occurred in the developing relationship of trust between the

foster carers and the parents. During a visit made by the parents to a relative of the father in prison events occurred which resulted

in the father being charged with a criminal offence. The father then disengaged with social work professionals.

10. The mother, who was herself in the care of the Agency, then left home. Informal access arrangements including overnight access

took place. However there were concerns that practical parenting tasks on a routine and consistent basis were left to the foster

carers and not always undertaken by the mother while the child remained in the primary care of the foster carers.

11. The Interim Care Order was again extended after the period of a year. It was agreed that the mother and father of the child

should be re-assessed by the psychologist, who undertook the first risk assessment, to determine whether sufficient advances had

been made in their respective parenting capacity in 2014. The Interim Care proceedings were then extended from time to time as

various advances and setbacks occurred. The hearing of the Care Proceedings pursuant to the section 18 Care Order was fixed for a

date in 2015.

12. The fractured relationship between the kinship foster carer and the parents of the child remained a matter of considerable

concern to the Social Work Department and the Guardian Ad Litem. However, it was never proposed that the child should be moved

to an alternative, 'stranger' foster placement. The section 36 fostering assessment of both foster carers remained outstanding for a

considerable period of time until the Agency approved both foster carers as appropriate long term carers for the child.

13. The Care Order decision was delivered by the Court in 2015. Evidence was presented by two social workers, a social care leader,

the psychologist who undertook a clinical assessment of the mother, and an attachment assessment of the child with the foster

mother, each of the parents and the Guardian Ad Litem.

14. The Presiding District Court judge made findings of facts on the evidence adduced and concluded that while the mother did not

have the skills required to provide ‘good enough’ parenting for her child, with sufficient supports, supervision and direction, she could

develop these skills. The core issues identified at the hearing was that while the threshold criteria of section 18 was met, the

proportionate duration of the Order should not be until the child reached 18 years old, but should be for a shorter period and expire in

2017. The Directions highlighted the steps or plan for the parents to follow in order to achieve reunification over a two-year period.

This incorporated therapeutic supports for young and maturing parents, and also recommended a process of Mediation to restore the

fractured relationship between the Applicants (who are the kinship foster carers) and the mother and father of the child. There were

other sundry directions made by the Presiding District Court judge, however they are not pertinent to the application before the

Court.

15. The case again came before the Court by way of Review as part of the Care Order. This Review represented the therapeutic

monitoring of progress made by the parents in meeting the goals set by the Court. The Guardian Ad Litem remained appointed until

2016, and the Court was informed at that time of very positive changes occurring over the preceding period in terms of the

engagement of each of the parents. The Guardian Ad Litem was discharged at that time given that his role was dormant, but

provision was made for his automatic reappointment in advance of the re-entry date of the proceedings.

16. In 2017 the Court was informed that the Agency did not intend to make an application to extend the Care Order under section 18

(2) of the 1991 Act on its expiration as they had concluded that it was not necessary. Their intention was to facilitate family

reunification of the child with her parents.

17. The Guardian Ad Litem provided two reports to court following his reappointment. Both Reports outline his engagement with the

child on two separate occasions, his engagement with social workers, his observations of the file records, and his sight of the

parental capacity assessment. He also conveyed to the Court the views of the child as expressed to him at that time.

18. He formed the view that the child was capable of expressing her wishes and feelings and did so, which were outlined in his Report.

The Guardian Ad Litem also outlined why he was concerned about how the adults in the child’s life regarded, perceived or interpreted

her expressed views. His concerns included the non-existent communication between the foster carers and the child’s father. He

described this situation as “toxic” and concluded that the child was caught up in this toxicity. He also expressed concern about the

breakdown in the relationship between the foster carers and the allocated social worker. He referred to the many allegations made by

the foster carers regarding domestic violence, assault and damage to house windows, which were investigated, but not

substantiated.

19. It would seem that while the relationship between the social work department and the parents has become co-operative and

positive, there has been a corresponding deterioration in the relationship between the foster carers and the social work department.

He urged caution when hearing the expressed wishes of the child as being “considered directly reliable” in light of the statements of

other professionals who observed a happy and contented child when with her parents in their home. He expressed his concern that

the child would be disrupted when reunification took place in light of the toxic relationship between the father and the foster parents

which he considered to have intensified over a certain period. His formal recommendation to the Court was that the parties should

engage in Family Mediation, coupled with a robust reunification plan of the child with her parents. This recommendation was based on

the , the level of complexity in the case. He also recommended that conciliatory work be undertaken between the Social Work

Department and the foster carers.

20. In his second Report, the Guardian remained of the view that 'a family meeting' was important to assess how the transition plan

for the child to move to the primary care of her parents would be managed and what supports would be offered in light of the

animosity and suspicion between the foster carers and the child’s father. The Guardian expressed concern about how all of this would

impact on the child. In his Report he indicated that the child would be expected to have a relationship with her parents, her former

foster carers and extended family regardless of any court order the Court might make. He was particularly concerned about the risk

that the child could be “unduly impacted over time and this may inadvertently lead to emotional and developmental difficulties in the

future, which must be avoided at all costs”.

21. A professionals' meeting took place on foot of the Guardian Ad Litem’s expressed concerns. The meeting concluded that certain

actions would be undertaken and one of those was the convening a Family Welfare Conference. That Conference did not take place

as scheduled, or on the rescheduled date as the foster carers and extended family were unwilling to participate in the conference.

The foster carer stated in her evidence that she had not been invited to a Family Welfare Conference by social workers. The Agency

Report to court stated that the Agency were informed by the Family Welfare Conference organisers, that the foster carers did not

wish to engage in a Family Conference when they contacted them to arrange a suitable date for the Conference. In any event the

Conference was not organised and did not take place and this is very unfortunate.

22. The matters currently before the Court, are an applications under section 47 of the 1991 Act, section 27 of the 1991 Act seeking

the Court's direction on matters affecting the welfare of the child in care and asked that a further professional report be procured

regarding the welfare and best interests of the child. Both applications stand or fall on whether and to what extent the Court should

admit various 'hearsay' statements of the child as the child's evidence pursuant to section 23 of the Children Act, 1997. The child was

7 years old at the time of these proceedings.

Section 47 Child Care Act 1991

23. This section provides that “where a child is the care of [a health board], the District Court may, of its own motion or on the

application of any person, give such directions and make such order on any question affecting the welfare of a child as it thinks

proper and may vary or discharge any such direction or order.”

24. As foster carers, the Applicants, therefore have the necessary locus standi under the section to bring the Application before the

Court.

Section 27 Child Care Act 1991

25. This section provides that the Court may of its own motion, or on the application of any party to the proceedings, by order give

such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of

the child. The Applicant is not “a party to the proceedings” as such as she is the foster carer and so this option is only open to the

Court, should it choose to commission a Report on its own motion or on the application of any party to the proceedings.

26. The application under both sections is grounded on the Affidavit of the kinship foster carer which stated that the motivating

concern for the Application was the decision of the Agency not to apply to extend the Care Order but to reunify the child with her

parents.

27. The foster carers brought the child on a holiday in contravention of the wishes of the child’s parents and the Agency and in the

course of the holiday certain things were reported to have been said by the child to them which caused them alarm.

28. The grounding affidavit outlined the nature of the conversations and statements which had caused them concern and asked the

Agency to investigate this set of allegations. The affidavit also exhibited a letter from a GP containing the statement that the child

reported to the doctor that her father “had shouted into her ear from close range…”

29. Counsel for the Applicants indicated that the substance of their application could not be fully grounded without the Court first

determining whether the hearsay statements of the child, as contained in Appendix 1 and 2 of the Notice of Application to admit

hearsay Statements, were admitted in evidence.

Section 23 Children Act 1997: Hearsay Statements

30. It is generally acknowledged that the most effective way of testing a witness’s evidence is through cross- examination [Cullen v

Clarke [1963] IR 368 at 378]. Where witnesses are competent, compellable and available it may not be necessary or appropriate to

receive hearsay evidence.

31. The child in this case was approximately 7 years old at the time of the proceedings. No one suggested to the Court that it was in

the best interests of this child to come to court and give evidence, or to give evidence through television link with or without the

presence of an intermediary. While the child was not incompetent to give evidence by reason of her age, all agree that it would not

be in the interest of her welfare to have to do so. There was agreement in broad terms that the ground for admitting any of the

hearsay statements is based on section 23 (1) (b) and this fact is not contested.

32. Section 23 of the Children Act, 1997 creates a statutory procedure to allow the hearsay evidence of the children to be admissible

as a statutory exception to the hearsay rule. The procedure set out in Part III of the Act must be followed before the hearsay

statements of a child are deemed admissible as evidence in civil proceedings concerning the welfare of the child. Section 19 provides

that a “statement” means any representation of fact or opinion however made.

33. The sundry hearsay statements of the child set out in the Notice served by the Applicants and set out in Appendix 1 and 2 could

not be admitted, if in the opinion of the Court, it would not be “in the interests of justice” to admit the statements or statements

[Section 23 (2) (a)]. In considering the interests of justice requirement, the Court must have regard to all the circumstances,

including any risk that the admission of such statements will result in unfairness to any of the parties to the proceedings [Section 23

(2)(b)]. The Applicants were not parties to the proceedings, however they were section 36 approved foster carers and regarded by

the child as key figures in her life.

34. Even where the Court admits a hearsay statement or part of a statement the Court must carefully weight the evidential value of

the statement [Section 24(1)]. The Court must regard all the circumstances from which any inference can reasonably be drawn as to

its accuracy or other wise. Section 24(2) sets out particular matters to be weighed in the balance, but the Court must have regard to

the all the circumstances, as set out in section 24(2). This provides that regard may be had, in particular, as to whether—

a. the original statement was made contemporaneously with the occurrence or existence of the matters stated,

b. the evidence involves multiple hearsay,

c. any person involved has any motive to conceal or misrepresent matters,

d. the original statement was an edited account or was made in collaboration with another for a particular purpose, and

e. the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper

evaluation of its weight.

35. Where hearsay evidence is admitted following such analysis section 25 allows evidence regarding credibility of the child to be

admitted, notwithstanding the fact that the child is not, strictly speaking, a witness. It also allows evidence tending to prove that

the child, whether before or after supplying the information, made (whether orally or not) a statement which is inconsistent with it.

[Section 25 (c)]

36. The hearsay statements of children are admissible therefore if the circumstances set out in the Children Act, 1997 apply by way

of an exception to the rule against hearsay provided the circumstances meet the requirements of the 1997 Act and the interests of

justice. The need to adduce hearsay evidence must be established as was made clear in the case of Eastern Health Board v MK

[1999] 2 IR 99 where Denham J pointed out that:

“...The rule against the use of hearsay evidence was developed by judges through common law. It is a rule developed to

protect fair trial process. In general, assertions made by persons who are not called as witnesses are inadmissible to

prove the truth of the matters stated therein....The fact that new exceptions have been made in recent times by the

legislature to extend the list of exceptions to the rule does not per se exclude the jurisdiction of the Courts.”

37. Notice of the Statements were provided in accordance with section 23 (3) of the 1997 Act and the particulars were set out in

Appendix 1 and 2 of the statements which were stated to have been made by the child.

38. Appendix 2 had two sets of statements: Statement A and Statement B. Statement A were set out in the first paragraph as bullet

points 1-8 and Statement B were set out in the second paragraph as bullet points 1-4.

39. Section 24(2) provides specific instances that must be considered by the Court when assessing the weight to be attached to any

statements deemed admissible, including whether the original statement was made contemporaneously with the occurrence or

existence of the matters stated, whether there is a single or multiple levels of hearsay involved, whether any person involved has any

motive to conceal or misrepresent matters, whether the original statement was an edited account or was made in collaboration with

another for a particular purpose, and the circumstances in which the evidence sought to be adduced as hearsay statements are such

as to suggest an attempt to prevent proper evaluation of its weight.

40. The requirement to have regard to the interests of justice as outlined in section 23(2) (a) and (b) relate to reliability and the

overarching responsibility of ensuring that the Court must have regard to all the circumstances, including any risk that the admission

will result in unfairness to any of the parties to the proceedings.

41. This requirement will normally be satisfied where hearsay statements are made in circumstances which provide sufficient

guarantees of its trustworthiness. In particular, all the circumstances must counteract the traditional evidentiary dangers associated

with hearsay. The criterion of “the interests of justice” would appear to be concerned with threshold reliability before any statements

are admitted as the child’s evidence. The ultimate reliability of any statements deemed admissible and the weight to be attached to

them or any of them, if any of them are admitted, must still be determined by the Court.

42. Admissibility is not assured even where statements are identified appropriately and set out in a Notice of Application pursuant to

section 23 (3) where such statements or part of such statements might result in an unacceptable risk of unfairness.

43. In this case I heard evidence from:

a. the Applicant, foster carer;

b. the allocated social worker;

c. the mother of the child;

d. the father of the child.

44. Each witness was made available for cross-examination and at the conclusion of the evidence. Submissions were made by each of

the parties to the proceedings. I do not propose to rehearse the evidence which each witness gave as it is available on the Digital

Audio Recording of the proceedings

Analysis

45. The statements which were stated to have been made by the child set out in the first part of paragraph 1 of Appendix 1 when

the child posed the question “if you smack a belly and there is a baby in it....” were viewed by the foster carer as referring to the

child's mother. There is a risk that everything that followed from the conversation between adult and child after that was coloured by

this assumption. The evidence of the foster carer was that the child's statements were made on a particular date and the record was

made several days later. The Court was informed that the second part of Appendix 1 was not now relied upon, but it must be noted

that the letter exhibited from the GP in the grounding affidavit of the Applicant did not support the statement contained in the

Appendix 1 and related to a different alleged event.

46. The first sentence of paragraph 3 of Appendix 1 was stated to relate to the child’s statement that she felt she needed to move

to her parents home to protect her mother and her siblings from her father. These statements were stated to have been made by the

child to the foster carers and the contents of the conversations were subsequently included by them in text messages to the

allocated social worker. The second sentence appeared to relate to a different time period. The last three lines of this paragraph were

conceded not to be a statement made by the child.

47. In respect of Appendix 2 only some events set out were mentioned by the foster carer, when she gave evidence but broadly

similar events were assessed by the allocated social worker and mentioned also in the Guardian Ad Litem Reports. Appendix 2,

Statements A were recorded by text message to the allocated social worker

48. I have determined that with some exceptions statements made by the Child to her foster carers and set out at Appendix 1 and 2

should be admitted because the procedural requirements of section 23(3) were met, and cross examination ensured that the interests

of justice were served by the Court in carefully adhering to the statutory analysis at section 24 (2) (a) to (e) of the 1997 Act.

49. I also determined however that there was a serious risk of unfairness to the parents and the child were the Court to admit

statements made by the child in response to a leading question posed by her foster carer as set out in the first paragraph of Appendix

1. There was also the risk that the way in which subsequent statements were made in response to an innocent but leading question

could taint all the other statements contained in that first paragraph of Appendix 1. Accordingly I did not admit those statements as

the evidence of the child. The statements could be regarded as the evidence of the foster carer however. Even had I deemed those

statements to be admissible and stand as the evidence of the child, I could not accord them any weight having considered the issues

at section 24 (2). The foster carer in evidence was very clear that she knows the child best as she has parented her for a

considerable period of time. She firmly believed that the decision of the Agency not to apply to extend the Care Order, so that the

child could remain in her home where she had stability, was the wrong decision. I determined that that this position was what

motivated her application to the court. It was understandable that she believed that by bringing the case to Court she was doing her

best to ensure that the best interests of the child would be brought into focus. It was difficult for her, as the child's foster carer, to

accept that professionals, unrelated to the day to day care of the child, had concluded that the child’s welfare and best interests lay

in removing her from their home and returning her to her parents at this time and she simply did not accept that this decision was the

right one.

50. The process of cross examination of witnesses regarding all statements admitted generally ensures the fair procedure rights of all

parties and the interests of justice have been sufficiently served. Accordingly, I admit the statements contained in the third part of

Appendix 1 and the portions of the statements set out at point 1, 2, 6, 7 and 8 of Appendix 2, Statements A and points 1 and 2 of

Appendix 2, Statement B as the evidence of the child.

51. Having determined that such statements are admissible it was then necessary to assess the weight, if any, to be accorded to

those statement and all the circumstances surrounding the context in which the statements were made. It was also necessary to

assess whether they were accurately and objectively reported and consider whether the child was manipulated, coerced or pressured

into making such statements and the matters set out in section 24 (2) (a)-(e) of the 1997 Act, as set out above.

52. The allocated social worker in her reports and in her evidence to the Court expressed the belief that the child was conflicted and

torn between pleasing both sets of adults whom she loves dearly. This professional view is also shared in the Reports of the Guardian

Ad Litem. While the child has had extensive access with her parents including overnight access, she has made conflicting statements

about what her own wishes are, but she has made positive statements to Agency professionals about her relationship with her

parents and her wish to live with her parents. However, the Guardian Ad Litem’s reports note that the child has consistently stated to

him that she wishes to remain with her foster carers. The Guardian also acknowledged that the child's demeanour, as reported to him

by others, seemed to indicate that she is happy when in the care of her parents. His Report to the Court stated that in his

professional view the child was conflicted and despite the consistency in statements made to him by the child regarding where she

wants to live and that she does not want to have ‘sleepovers’ she also stated that her foster carer does not like her father. The

Guardian concluded that the child was caught up in a toxic situation created by adult animosities. The allocated social worker's

evidence was that the child has made statements to her about wanting to live with her parents which conflict with statements she

has made to her foster carer and the Guardian Ad Litem about where she would like to live. I accept her evidence in this regard. The

Guardian Ad Litem also stated in his last Report to court that “Undoubtedly there are influences, negative and positive, from parents

and carers that may be impacting on the child’s ability to determine her wishes with some accuracy.” In that regard the Guardian

was cautious and expressed the view that "the child’s expressed wishes and feelings ought not to be considered directly reliable,

instead the focus of concern rests with the adults in her life and how this has the potential to further impact on any plan for

reunification or not” .

53. Regarding the admissible hearsay statements of the child it was clear that the original statements were not recorded

contemporaneously. There was also a degree of “multiple hearsay” in so far as the statements made by the child were repeated to

several other persons by the child on the holiday and subsequent to the holiday. While foster carers, certainly had a vested interest

in the statements being admitted into evidence, I accepted that they were genuine in their concerns for the welfare of the child, and

there was no motive to conceal or misrepresent facts by the foster carer. It was clear in the foster carer's evidence and cross

examination that she was of the firm view that the best interests of the child were for her to remain in her care. She also expressed

very firm views about the child’s father, his relationship with the mother and their children. It was clear that sundry statements, as

set out in the Notice, represented an overall account of original statements made and interpreted by her. There was a lot of dialogue

with others on holiday and subsequent to the holiday. I did not believe that the circumstances in which the evidence is adduced as

hearsay was suggestive of an attempt to prevent the proper evaluation of its weight by the Court. However, in all the circumstances

I could not accord the statements substantial weight as I had little certainty as to their accuracy and the circumstances in which

they emerged.

54. In the case of N & Anor -v- Health Service Executive & ors [2006] IESC 60 Murray C.J pointed out that every effort and

arrangement should be made, under professional supervision, to ease the transition of the infant [in that case] from the custody of

the respondents [with whom she had lived for a very substantial period] to those of her married parents. The interests of the child

dictated that the legal issue of her custody required to be dealt with as soon as possible. Mr. Justice Adrian Hardiman stated that the

Constitution does not prefer the rights of parents over those of children; “The preference the Constitution gives is this: it prefers

parents to third parties, official or private, priest or social worker, as the enablers and guardians of the child's rights”.

55. In this case the parents are not married, but are a committed couple and the parents of the child, the subject matter of the

proceedings. The Presiding District Court judge made a Care Order under section 18 of the 1991 Act and the Agency concluded that

the foster carers were appropriate persons to be her carers under that Order. The duration of the Order was limited to 2 years. Much

has changed in the period according to the allocated social worker .The parents wish to parent their child jointly and are capable of

doing so in the view of the Agency. I am satisfied on the evidence adduced that the foster carers do not accept this professional

decision and although they have co-operated with overnight access arrangements they have not found it within themselves to

accept the decision of the Agency and co-operate in the transition plan for a change in custodial arrangements. I am also satisfied

that the child has been dragged into a toxic situation which is essentially a tug of love between the foster carers and the parents. I

accept the evidence of the allocated social worker that she received a call from the child and could clearly hear the foster carer in

the background. These actions have tended to destabilise the required relationship between the foster carers and the Agency. I am

satisfied on the evidence of the foster carer that her views of the child’s father are very negative. This has not been lessened by the

fact that the parallel plan of reunification proposed by the Guardian Ad Litem has not advanced a jot since it was proposed. The

Guardian Ad Litem was not available to give evidence at the hearing of this application and had not spoken to the child regarding her

direct wishes and feelings since 2016. However, the Guardian provided Reports to court which gave his assessment of the current

situation. I am satisfied on the basis of this Report that it would not be appropriate to embroil the child in a further professional

enquiry which forced her to take sides in the disputed positions of the adults in her life. The allocated social worker’s evidence

regarding her direct engagement with the child over numerous visits and finally at a home visit and a subsequent visit in a neutral

environment is that the child has expressed a clear wish to return to her parent’s home and stated that her foster carer told her that

it would be 'ok' to live with her parents. The child indicated that the social worker should tell the Judge that she wanted to live with

her Mammy and Daddy, but is sad and misses her foster carer when she is there sometimes. The child indicated that she loves her

Mammy and Daddy and also loves her foster carers. The views of the child are not, determinative of the core matters at issue in this

case but they must be listened to and given due regard. I accept the evidence of the allocated social worker regarding her sundry

engagements with the child and the child's desire to retain the love and esteem of all the adults in her life.

56. The Agency decided that the child should be returned to her parents and that there were no grounds to justify them applying to

court to extend the operation of the Care Order. They are the only parties who may bring Care Proceedings and have statutory duties

and obligations as set out in the Child Care Acts.

57. The Agency decision in this case simply was not accepted by the foster carers and they did not co-operate in any process which

would make such a transition of care possible. They were clear in their view that the decisions the Agency made to transition the

primary care of the child to her parents jeopardised the wellbeing and safety of the child. For their part the parents have matured

over the last number of years and have accepted many of their actions at an earlier stage were not mature or in the best interests of

the child. They raised no concerns about the physical care offered by the foster carers to the child. They denied that their

relationship was marred by domestic violence or abuse and they wanted to offer a stable family environment to the child. This position

was fully accepted by the Agency.

58. Counsel for the Applicants suggested that following the section 23 evaluation regarding the admissibility or otherwise of the child's

hearsay evidence that the Court should proceed to hear further evidence from the other foster carer to determine the section 47

Application.

59. In respect of the section 27 application I determined at this juncture that it was not considered necessary or proportionate, on

my own motion, to procure a report from another professional on any question affecting the welfare of the child. No application to do

so was brought by the legal representatives of the Agency or by the legal representatives of the parents. The foster carers could

have adduced independent professional evidence and although they exhibited a report from their GP this Report did not corroborate

the matters set out in the second part of Appendix 1 but instead stated that “her father, had shouted into her ear from close

range….” The GP also expressed concerns about the child’s emotional state and further noted that there was a lot going on in her life

which was affecting her emotional state.

60. After a short recess, the Court was informed by counsel for the foster carers, that they had decided not to proceed with section

47 application listed for determination.

Rosemary Horgan

Judge of the District Court

February 2017