Care Order application dismissed; parents' cognitive impairments and lack of support deemed insufficient grounds for removal.

[2017] IEDC 04

AN CHUIRT DUICHE THE DISTRICT COURT

TUSLA CHILD AND FAMILY AGENCY

APPLICANT

AND

CH

FIRST NAMED RESPONDENT

AND

SC

SECOND NAMED RESPONDENT

IN THE MATTER OF, A CHILD [Child A]

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. This is an application for a Care Order under s. 18 of the Child Care Act, 1991 (herein after referred to as ‘the 1991 Act’) in respect

of a Child who shall be referred to in this decision as Child “A” because 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 unmarried, but reside together and have two other younger children [who will be called Child “B” and Child

“C”] who remain in their care.

3. The mother and father were present in court throughout the proceedings and each of them was represented in the proceedings by

separate legal teams. Each parent also had the benefit of support advocates to better enable them, as vulnerable litigants to engage

meaningfully in a very difficult court process concerning an application for a Care Order pursuant to s. 18 of the 1991 Act regarding

the long term care of their teenage child.

4. Child “A’s” separate interests in the proceedings were highlighted by the Guardian Ad Litem, who was legally represented in these

proceedings.

5. I am satisfied that the Dublin Metropolitan District has jurisdiction to hear this application.

Background

6. I will first briefly state the general facts that led to the matter being brought before the Court in 2012/2013. The children were

subject to three Child Protection Case Conferences. Each parent had a significant cognitive impairment and it was felt by the Agency

that this impacted upon their ability to parent their children.

7. A Supervision Order was applied for and granted for a period of six months, with the consent of the parents, in respect of all the

children in the family in 2012. The child protection issues identified at that time included the use of physical chastisement by the

mother, behavioural difficulties presented by Child “B” at his crèche, and punctuality issues in bringing Child “A” to school. The parents

were co-operative and anxious to do a parenting course to help them to parent their children. A Welfare Conference resulted in a

supported arrangement being put in place to provide necessary supports for the parents and their children. This arrangement involved

the extended family and also provided other parenting supports to scaffold the family unit under the overarching guidance of the

Social Work Department. Both Child “A” and Child “B” had periods in respite care provided by the extended family. This position

continued and various options were discussed with the parents, including the potential voluntary care of Child “A” in a foster care

placement. In 2016 further allegations of physical abuse escalated the level of risk assessed by the Agency. A Safety Plan was

devised to reduce the level of risk which resulted in one child remaining out of the home for four nights in a shared care arrangement.

The parents were acknowledged to be co-operative and engaging with the Social Work Department and other agencies. The parents

themselves were able to identify the underlying difficulties in the family unit which caused the stressful situation in the household to

escalate. Court Proceedings which had been initiated in 2016 for all three children, but were withdrawn by the Agency as both

parents agreed to Voluntary Care in respect of Child “A” at that time for a six month period. The degree of consent, if any, to that

arrangement was challenged in the current proceedings.

8. Several months later, the parents withdrew their consent to a voluntary care arrangement and the Applicant issued an application

for an Interim Care Order. This application was also withdrawn because both parents again indicated their agreement to extend the

voluntary arrangement for a further 6 months. However, the parents withdrew their consent and accordingly the Applicant applied to

court seeking an Interim Care Order which was fully opposed by each parent. The parents were, at that time, represented by the

same legal representatives as in this Care Order hearing.

9. Following a full hearing an Interim Care Order was made. The Presiding Judge also appointed a Guardian Ad Litem in accordance

with s. 26 of the Act and made Directions under s. 47 of the Act which enabled each parent to have an advocate present in court to

assist them in the Court process. Application was also made at that time by the Agency under s. 47 of the Act for a Direction, which

would have the net effect of a change of school for Child “A” located close to the foster carers residence and this application was

refused.

Care Order Application

10. The Agency requested the Court to make Findings of Fact as set out in the document entitled “Summary of Application for

Hearing pursuant to s. 18 of the Child Care Act 1991”. This document sets out the grounds underlying the Agency’s case and the

witnesses intended to be called at the hearing to establish the threshold criteria of s.18 (1) of the 1991 Act.

11. The Court was informed that the Report of Clinical Psychologist B as set out in the Booklet of Reports (which relates to Child “A”

[the child who is the only the who is the subject matter of these proceedings]) was to be admitted into evidence without formal

proof, but in all other respects the Agency was put on full proof of any other fact intended to be adduced.

Agency Position

12. The Agency applied for a Care Order in respect of Child “A” until she reaches her age of majority at eighteen years of age, and

this application was supported by the Guardian Ad Litem. The Agency maintained that the child suffered non- wilful neglect and ill-

treatment in the home and that her health development and welfare was likely to be avoidably impaired or neglected and that she

required care or protection that she was unlikely to receive from her parents unless the Court made a Care Order ensuring that she

remained in care.

13. It was clear that the overarching concern of the Agency was that the parents, even with the assistance of their wider family and

targeted community and social work supports, simply could not meet Child “A’s” needs. To a lesser extent the Agency had historical

concerns regarding substance misuse by each parent and periods of inconsistent parenting, however, no evidence was advanced in

regard to substance abuse and the Agency appeared to be satisfied that this was no longer a primary concern in this regard, and also

acknowledged the strides the parents had made in this regard. It was contended that inconsistent parenting resulted in behavioural

difficulties displayed by Child “A” and Child “B”.

14. The Agency maintained that each of the parents operates with compromised cognitive and executive functioning, which limited

their respective understanding and adaptive coping skills. The parent’s ability to translate information and advice into practice in the

home was limited due to their concrete or “black and white” thinking. Stressful situations had resulted in “hitting” in the past when

boundaries and limits set by the parents were challenged by a child. Triggering behaviours by Child “A” caused the other children to

act up in the home with their parents. The functioning of Child “A” was in the borderline range of functioning and the combination of

all these factors required the making of a Care Order to protect the individual interests of Child “A”.

15. The Agency maintained that Child “A” by reason of her own compromised cognitive functioning had greater needs than a child

without those issues. Their conclusion was that the parents could not, despite their willingness and best efforts meet these needs.

Furthermore, the Agency position was that her unmet needs required an Order to be made until she would reach the age of eighteen

years, as the issue of functioning of each parent and of Child “A” was a lifelong enduring condition.

Parents Position

16. The legal representatives of each parent did not file a Statement of Opposition to the Care Order Case Summary/ ‘Finding of Fact’

document. However, each parent indicated through their respective legal advisors their total opposition to the Order sought by the

Agency. They wished to have Child “A” returned to their full time care. While they saw Child “A” every day at lunchtime when she was

at school, and every weekend they could not understand why it was necessary for her to live in foster care. They were unhappy with

the shared care arrangements currently pertaining and wished her to be fully returned to their care.

17. It was also indicated that each parent would maintain through their evidence that while they had signed the voluntary reception

into care documentation this was without a full understanding of its import. They did not have the benefit of reflective time, or legal

advice before they signed the agreement. They also now felt that they had been coerced into signing the consent form for one child

to avoid losing all of their children to State care. This was a particular fear for the father as he was in Residential State Care as a

child and it was not a good experience for him. They also expected that Child “A” would be automatically returned to them after the

expiration of the voluntary agreement period.

18. It was also submitted that the supports made available to the parents both together and individually were inadequate or

insufficiently tailored to their level of understanding and were provided by child care workers who had no training in disability issues.

Guardian Ad Litem’s Position

19. The Guardian Ad Litem supported the making of a Care Order for Child “A” until she reached the age of eighteen years. The

Guardian also conveyed Child “A’s” views and wishes to the Court. The Guardian’s view was that Child “A’s” parents love Child “A” and

she loves them too. The key issue in the Guardian’s view was their capacity to provide care for her given their presenting needs and

Child “A’s” needs.

20. It was her professional opinion that Child “A” needed the stability of a Care Order in order to secure her development. The Pink

Family book which was prepared by Child “A” for the Court was furnished to the Court. In this book her foster family and her own

family are prominently displayed. The things she wrote about, which upset her, included waiting for the Court to make a decision and

she was worried about that decision and what it would hold for her. She wrote that living with her foster carers make her feel safe

and she wanted help to tell her parents that. However, her family were also very important to her and she did not want to move

school, where she has a friend. The Guardian was also of the view that seeing her parents every day was a large part of her

motivation to remain in the same school, although the Guardian could see some merit in a move of school. However, it was clear that

Child “A” does not qualify for admission to a “special school” although she has been sanctioned to receive Speech and Language

sessions which have commenced. Child “A” also asked to speak to the Judge who would make the decision about her long term care

and this meeting occurred in the early morning before a court hearing. Child “A” is a warm child who was proud of the work she put

into preparing the Pink book. She was clear that she wished to remain in foster care and did not want to change school, and she

loved her parents and siblings.

Evidence

21. Over a two day period I heard evidence from:

(a) Family Welfare Worker A with a community based project for children and their families [hereinafter referred to as a

“Family Centre”];

(b) Child and Family Worker B with qualifications in Social Care and this qualification included training in the skills

necessary to work with persons with special needs, vulnerabilities and disability;

(c) Clinical Psychologist who undertook a parenting capacity assessment in respect of both respondent parents;

(d) Social Worker allocated to this case since 2014;

(e) Respondent father;

(f) Respondent mother;

(g) Maternal uncle of child;

(h) Guardian Ad Litem.

The Legal Position

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

a. The burden of proof lies on the Agency, and the standard of proof is on the balance of probabilities.

b. The threshold to be established by the Agency is set out in s. 18 (1) of the 1991 Act.

c. The Court must determine whether the threshold has been reached in every case having regard to the evidence

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

child. Once a finding has been made that the child is in need of care and protection by reason of any of the

circumstances set out in s. 18(1) (a), (b) or (c) the Court has to consider whether a Care Order is necessary to protect

the child from risk of the harm(s) identified and evidentially established in the case.

d. If the threshold is not made out by the Agency then the child must be returned to the person who had charge of the

child prior to the Agency’s intervention. In this case, that person is her parents. But if the threshold is met then the Court

must make the least intrusive and proportionate Order that adequately addresses the concerns evidentially established.

23. Having heard the evidence set out above, having considered the Findings of Fact submitted by the Agency and the submissions of

each of the parties and having taken into account the views, interests and wishes of Child “A” (indirectly expressed to the Court

through the Guardian Ad Litem) I concluded that on the evidence adduced by the Agency that Child “A’s” health, development and

welfare is likely to be avoidably impaired or neglected into the future unless the Court makes a Care Order and I am satisfied that a

Supervision Order would not address the risk evidenced in this case. I am further satisfied that the Care Order should be granted on

the grounds set out in s. 18 (1) (c) of the 1991 Act being satisfied that Child “A” is unlikely to receive adequate care or protection

unless the Court makes a Care Order. The necessary duration of the Care Order is until Child “A” reaches the age of eighteen years.

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

Support Services Provided By Agency

25. Both parents worked with a variety of services since 2012; although it was suggested that the family was known to the Agency

since 2003 there was no evidence adduced regarding the early years from the birth of Child “A” until 2012. The first two witnesses to

give evidence were from the Family Centre which became involved with Child “A” four years ago. Evidence was also given regarding

their work with Child “B”, however, this child is not the subject matter of these proceedings and so I will only refer this child

tangentially in this decision. The referral to the Family Centre came from Barnardos family support service.

26. The referral reasons were set out in the Reports from the Service. The overview of the work with the family is outlined in this

report, and it is fair to say that this work was intensive and individualized. There was no question of parental unwillingness to attend,

although the respondent father was a more frequent attendee. Each of the parents was acknowledged to be both engaging and co-

operative and some progress was made.

27. Both witnesses spoke about difficulties presenting for the mother to attune to Child “A’s” needs because of her volatile

relationship with the child, and both also spoke about the stress existing from time to time between the parents themselves. They

also emphasized the difficulties for the parents when putting into practice the parenting techniques delivered during the sessions.

28. The first witness from the service was questioned closely about her qualifications and experience and whether the techniques

employed by her when working with the parents were at an appropriate level for these parents. She was questioned about her

competence to provide cognitive behavioural therapy type interventions. She was clear that she did not provide cognitive behavioural

therapy as she was not qualified to do so; however, she did endeavour to outline practical ways for the parents to respond to

challenging parenting situations. She checked back with the parents regarding their understanding when she explained things and she

broke tasks down into more easily understood parts to better ensure understanding. This work continued for four years but with

marginal success. It was also put to the first witness that absent specific training in the area of parents with intellectual disability

that the service offered to these parents could not have been sufficiently attuned to the individual needs, however this was not

accepted by her as the Family Centre treats parents primarily as parents with difficulties of many kinds and the goal was to support

the parents to care for their children.

29. The second witness had training and qualifications which included working with parents with intellectual disability. She was asked

to work with Child “A” due to her behavioural issues, and later asked to work with Child “B”. She employed play therapy/filial therapy

as the means to complete the work. She was aware of the level of functioning of the father and mother. She had more engagement

with the father, whom she believed tried very hard at an emotional level but found it difficult to set boundaries consistently for the

children. The respondent father confided his deep concerns and worst fears to her about the family dynamic, his relationship with the

mother and his concerns that Child “A” might be better off in care.

30. She worked with the father to “keep his head” in stressful situations, to take deep breaths etc; she visited the home and it was

her experience that the respondent father struggled to put into practice the skills he learned about in the Family Centre. It was her

professional view that the family dynamic when Child “A” “kicked off” was very concerning and impacted on Child “B” and the father

was powerless to de-escalate the situation. It was also impacting in his stress and he was attending a mental health group set up by

the Family Centre for parents under stress when parenting. He also attended a tailored parenting programme three times per week

with her, which used pictures rather than words to convey concepts. She constantly checked back to measure his level of

understanding however after one year it became clear to her that he could not transfer the skills he learned in the Centre to

parenting situations in the home.

31. It was put to the witness that the techniques used were insufficiently explained to the parents. However, this was not accepted

by her and she gave practical examples of situations when techniques were adapted, one example was the rewards and sanction

(money jar) parenting techniques (the Warrick Dyre method). When this method was employed, it became apparent that the parents

could not really grasp the concept as it was too complex. The money reward/sanction system was then changed to a simpler “star

chart” system as a way of rewarding good behaviour.

32. It was also put to the witness that the father considered it a grave breach of trust that private therapy sessions where he

confided his worst fears were being used to describe parenting deficits in Reports and in evidence in court. The witness explained that

she was bound by the Children first obligation to speak to these issues and she did so with regret as her experience of the father was

that he really tried to be the best parent he could be.

Findings Of The Parent Capacity Assessment

33. A Clinical Psychologist was retained to conduct an independent parental capacity assessment of each parent. The Clinical

Psychologist worked in the area of clinical psychology for 20 years in both disability and mental health services in the community, in

hospitals and forensic secure units. She did not rely on the previous findings of earlier Psychologist retained in the case during

2012/2013. Her Report to court was contained in the Booklet of Reports and provided an independent evaluation of each parent’s

cognitive capacity, based on the psychometric testing and clinical assessments she conduced.

34. It must be acknowledged that this is an extremely sensitive issue for each of the parents. The respondent father has a Mild

Intellectual Disability in the first percentile making him very vulnerable. He is kind and thoughtful father who acknowledged past

difficulties in parenting Child “A” though he never hit her. He had a difficult childhood and came into residential care, where he said he

was abused. His experiences of being parented were poor to say the least and for this reason he lacked an internal model of parenting

even though he wanted to be the very best parent to his children. The respondent mother also has a Mild Intellectual Disability which

is also rated at the 1st percentile and so she is equally vulnerable. She regretted hitting Child “A” in the past. Each parent was prone

to “concrete or black and white thinking” in her professional opinion. Each parent has done precisely what was asked of them. The

Clinical Psychologist A acknowledged that the father indicated to her that he was clean from heroin for several years now, and the

mother has significantly curtailed her use of methadone and her goal is to be methadone free completely. Neither parent was aware

that Child “A” also had special needs until relatively recently; they felt that with this knowledge they could manage her behaviour and

cater for her particular needs if she was returned to her care. It was her professional conclusion that in the particular circumstance of

this case neither parents had sufficient capacity to cater for Child “A’s” needs nor could they fully understand her needs and

vulnerabilities. She recommended that the respondent mother should have access to a counsellor or psychologist who would help her

with emotional regulation and anger management through the technique of mindfulness, although this would only benefit her if she

wished to participate. In the case of the respondent father she noted that he was predisposed to ‘low mood’ and psychotherapy

would be difficult for him due to his life’s experiences. If he was willing, she recommended a tailored program of cognitive behavioural

therapy or ‘mindfulness’. In the case of each parent she recommended that all interventions should be tailored specifically to their

needs and targeted in such a way as to maximize their skills and increase their confidence. A systemic/family therapy approach

pitched to their level of understanding could assist the parents in acquiring better listening and communication skills. She also

recommended a full psychological assessment of the needs within the household.

35. It was put to the Clinical Psychologist that the therapeutic work carried out at the Family Centre was inadequate as it was not

provided by case workers with specific training in intellectual disability. However, she disagreed with this and pointed out that the

work with these parents appeared to respect them as parents who had many other issues they needed help with as well as

responding to them as parents with a learning difficulty. In her view the work undertaken appeared to have been tailored to their level

of understanding. Tasks were broken down and they used role play as well as pictures instead of text. In her view these parents need

individualized, one to one interaction or very small group work. It was her view that parents with intellectual difficulties can become

lost in group work. She described the necessary engagement as “limboing”, in other words, taking the explanation to a lower and

lower level, repeatedly in order to ensure that the action described is in fact understood. She explained that sometimes parents are

unable to grasp a concept and sometimes even if they grasped the concept, they might not be able to replicate a technique

described to them in the home environment. The goal was to impart sufficient skills to ensure “good enough” parenting. In this case

the cognitive testing results of the parents fell within the same range of ability. Each parent found it difficult to generalize and did not

understand complexity. The parents found it difficult to apply their learning in the home environment despite supports and training

from services. Child “A” herself has special needs which in her view were not met by the parents in the home. The Clinical

Psychologist also spoke to Child “A” who indicated to her that she would handcuff herself to the foster carer’s cooker if told by the

Court that she had to go home. Child A in her view had low self esteem, no friends in school and did not like her body. Whilst these

may be the concerns of many teenage children she has developed practical skills in foster care which she did not develop at home.

Her experience at home was of arguments, physical abuse and unintentional neglect.

Psychology Report Of Child

36. The Psychology Report of the Clinical Child Psychologist was admitted into evidence without formal proof. The Clinical Psychologist

found that Child “A’s” cognitive functioning to be in the main in the borderline range of ability at the 3rd percentile. Her working

memory appeared to be in the average range of ability, and her perceptual reasoning in the extremely low range. Her adaptive ability

was estimated as broadly in line with her overall ability but with particular weakness in her social and practical skills. She requires

speech and language therapy. She requires support to develop her adaptive skills, through regular participation in chores, taking

responsibility for her personal belongings, and her daily care activities and she to develop skills in the preparation of food and self-

care. She needs to be supported in her decision making.

Social Work Assessment

37. The Social Worker was allocated to the case in 2014 and gave evidence of her work with each of the parents. The problems

identified included the challenging and difficult behaviours of the two children and the ability of the parents to meet the challenge. To

identify what might work for both the children and the parents she sought a respite placement for the middle child, and structured

respite for Child “A” in order to de-escalate the tensions in the home. It became clear that when Child “A” was at home the family

dynamic became unworkable. She observed Child “A’s” behaviours which ranged from upset, to angry and lashing out. She employed a

high level of social work intervention to help the family, in addition to the Family Centre, and extended family support. She organised

the Youth Advocate Program (YAP) to provide intensive support for Child “A”. A Family Welfare Conference established that there

were no further additional supports which the wider family could offer. The possibility of voluntary care was discussed during 2015 but

rejected by the parents. The home situation deteriorated at the end of 2015 and beginning of 2016 and Child “B” disclosed physical

abuse by his mother and that he was afraid to go home. A Safety Plan was developed whereby he stayed out of home for four nights.

Both parents at that time felt that Child “A” was the trigger for the family arguments. The Agency commenced proceedings seeking an

Interim Care Order for all three children in 2016, however, they withdrew the proceedings when the parents agreed that Child “A”

would be received into voluntary care. The goal of the Agency was to enable the parents to have a chance to parent the younger

children while assessing Child “A’s” behaviour outside the home. However, from the parents perspective it would seem from their

evidence, and the cross examination of various witnesses by their legal representatives, that they were given the impression that if

they did not agree they would loose all of their children to State care. Therefore, their “consent” to voluntary care of Child “A” was

not a true consent.

38. When Child “A” was received into care initially her access with her parents and siblings was supervised. Child “A” continued to

challenge her parents during access. Over time she learned to be more respectful and access became unsupervised, and evolved to

include overnight access. However, in the Social Worker’s professional view the calmer situation was unlikely to be maintained if Child

“A” returned home on a full time basis. In her professional opinion Child “A” requires additional parenting support and guidance which is

beyond the scope of her parents to provide. She requires consistent structure and routine in order for her to reach her full potential.

Her evidence was that Child “A’s” emotional well being, development and welfare would suffer were she to return home and that the

progress made during the period she has been in foster care would be lost. The Social Worker was of the opinion that she has a

positive working relationship with each of the parents and they are always honest and open and do what is asked of them; however

they could not meet Child “A’s” level of need.

39. On cross examination it was put to her that these vulnerable parents were not sufficiently supported. The Social Worker did not

accept this as the family had, in her view, intensive supports from the Family Scope Community Service, Barnardos, the Family

Centre, and the Social Work Department. They also had support from their wider family. There were core group meetings and family

welfare conferences held in this case to do everything possible to keep the family together. She denied that the parents had been

blackmailed into signing the voluntary care agreement. The Social Worker conceded that a family crisis is stressful for any parents and

there is always the concern that the parent may feel overwhelmed. However, the Agency was statutorily obliged to be concerned

about the safety and welfare of three children and their safety and welfare and they had a duty to take all necessary steps to

safeguard them. Every short term measure and avenue had been explored and exhausted in this case. Their concerns for the children

were escalating and the parents acknowledged this to her. Child “A’s” challenging behaviour and name calling of them coupled with

Child “B’s” sexualized behaviour and encopresis were, in her professional opinion, symptomatic of underlying family dysfunction which

the parents acknowledged that they could not manage appropriately. The idea of voluntary care was discussed in 2015 and the

parents met prospective foster carers for Child “A” and respite care was arranged. In 2016 when Child “B” disclosed that he was being

hit and smacked and was too scared to go home the Safety Plan with the family was devised and Child “A” went to her maternal

grandmother and it was in this context that the care proceedings were initiated. It was put to the Social Worker in cross examination

that the parents felt pressurized to signing the voluntary care agreement. Specifically, it was put to her that the parents were under

the impression that if they did not agree that the Agency would get a Care Order in respect of all their children. This proposition was

not accepted by the Social Worker. It was also put to the Social Worker that the parents did not voluntarily agree to the process of

a child protection case conference or understand its outcome or the care plan which emerged from the process. It was put to the

Social Worker that insufficient safeguards were put in place for vulnerable parents and that they now perceived they had been forced

into a process they did not fully understand or agree to. The Social Worker did not accept that this was the case and indicated that

she informed the parents that it was her assessment that Child “A” needed an additional period in care. She discussed this

professional opinion with the parents in 2016. She had a good relationship with the parents, and she was satisfied that they

understood the reason for her professional concerns. There were access difficulties on a home visit. She also urged the parents to

take legal advice and made it clear that the Social Work Department intended to apply for an Interim Care Order for Child “A”. She

offered to assist the parents to attend a Law Centre so they could apply for legal aid. This offer was declined. The parents separately

contacted the Social Worker asking her to cancel the Court application as they would agree to an extension of the voluntary care

agreement for a further six months. An oral agreement was reached for a further period of six months in care with shared care with

the goal of transitioning Child “A” back home on a full time basis. The parents were again advised to seek legal advices about this

agreement but they declined to so. The respondent mother indicated that she was no longer happy to reach a voluntary agreement

and would prefer the matter to be decided by the Court. The Interim Care Order was heard and granted. It was her professional

opinion that the parents came to a very difficult decision voluntarily when Child “A” was initially received into care. They also

understood clearly that if there were problems after this initial six month period and that they had the choice to either agree to a

second period in voluntary care or that the issue could be decided by the Court if they did not accept her professional assessment.

While they initially agreed they then changed their mind and the matter was determined by the Court in 2016.

Parents And Family Position

40. Each of the parents gave evidence as to their understanding of the circumstances around the voluntary care agreement and the

services put in place for them in the care of their children. The respondent father expressed his view that the Social Work Department

gave him no practical help. He acknowledged that the Family Scope service was provided but pointed out that this was a school

service to help them getting the children to school on time, but that this was not a service provided by the Social Work Department.

He was also upset that the Family Centre betrayed his trust in telling the Social Workers about confidential things that he confided in

them about his own life and the family situation. He agreed that he told them that maybe Child “A” would be better off in care but he

was under stress when he said that. He agreed that he signed the form for voluntary care after a discussion but he was not really in

agreement with it. He was frightened that he would loose all his children to care. After the six months they thought that Child “A”

would come home and he felt they were being pressured into a further period. His recollection was that he was called in to sit around

a table and given the impression was that if he did not sign there and then that there was a risk of Child “A” losing her placement. He

was also told that the Social Workers would go to court and get a court Order. There was no one there for him at this meeting. He

was worried about Child “A” in care and worried that she was allowed to taste alcohol at a social occasion. He as also upset that the

social occasion abroad was mentioned to Child “A” before her parents were asked to agree that she could go to it. He was unhappy

with the Clinical Psychologist’s Report and evidence because she told him he did well in the tests. He did everything he was asked to

do by the Social Workers, and he missed Child “A” and wanted her to be at home with the family. He agreed that Child “A’s” behaviour

was more manageable since she went into care. He acknowledged that she is home at lunchtime during term time and that she has

overnights at the weekend on many weekends. He did not want Child “A” changing school as she told them she was happy in the

school and he was happy to do what she wanted. As she does not qualify for a “special school” he sees no advantage for her

changing school. While she may want to stay in foster care he would love her to be home with the rest of the family.

41. The respondent mother’s evidence was that she was not a great attendee at the Family Centre, as she attended courses

elsewhere. She did a parenting course and counselling and the skills she learned she applied in the home. She understood that Child

“A” had special needs but now that this was identified she felt that she could manage her better. She agreed that, like her partner,

she was under the impression that she had to agree to the voluntary care. She also accepted that she was having difficulty in

managing Child “A’s” behaviour as the child was abusive to her and pushing boundaries. This was the reason she did a positive

parenting course, and attended a church group. She was glad Child “A” now had speech and language classes. She loved Child “A”

and wanted her to be at home in the family.

42. The maternal uncle gave evidence that over the last six months things are calmer in the household and he felt that both parents

would be able to manage if Child “A” came home and he felt confident that she would not suffer harm or neglect.

Guardian Ad Litem

43. The Guardian Ad Litem was appointed to Child “A” in August 2016 and met all the parties in the case and reviewed the case files.

Child “A” has very clearly expressed her views to the Guardian and these are that she wishes to remain in care seeing her parents at

lunchtimes when she goes to school and at weekends. However, she has phoned her carers in recent times to be collected from

weekend access. She also loves her “nanny” and stays there sometimes. She can fight with her mother when she is at home. She is

satisfied that speech and language services now in place for Child “A” were a necessary and positive development. Her consistent

wishes are to remain in her foster placement and these were the wishes she repeated in her meeting with me, when she handed over

her “pink book”. Child “A” has few school friends but she states that she likes her teachers. She also states that her foster carer

helps her to “feel good” about herself.

44. The Guardian Ad Litem was of the view that Child “A” was unlike many adolescents who experience normal psychosocial adversity,

however Child “A” also has a moderate intellectual disability making these challenges more difficult for her to understand and

overcome; Child “A” sees a value in the resilience and social skills she is learning from her foster carers which she did not experience

in her own home. Her experience of care at home with her siblings and parents was stressful and conflicting, and she does not want

to return to that situation. The Guardian expressed the opinion that the shared care was very appropriate arrangement in this case.

She acknowledged that matters of parental capacity and cognitive functioning are both sensitive and deeply personal for these

parents who clearly love Child “A” and cannot understand why she cannot return to their care. Her professional assessment was that

it was unfortunate that Child “A” did not meet the criteria for a special school; however she will need to be supported to achieve her

educational potential. It was also her view that Child “A” would need to attend counselling once a decision was made as to her long

term care.

45. She felt certain that the parents do not and cannot accept the assessments of the Clinical Psychologist A or Psychologist C.

They have always endeavoured to do what was required of them as parents and they firmly wish to parent Child “A” as well as the

two younger children. However her recommendation to the Court is that Child “A” requires the protection of a Care Order and that the

duration of that Order should be until she reaches the age of eighteen years.

Voluntary Care And Fair Procedures

46. The legal advisors for each parent raised the issue of fairness and submitted that there was an absence of true consent by the

parents to the voluntary care agreement which was in fact a forced agreement in disguise. The parents did not have legal advice or

assistance in advance of signing the agreement. Their mild intellectual disability was well known to the Agency.

47. Section 4 of the 1991 Act allows the Agency receive into care a child in need of care and protection. The section goes on to

emphasize that nothing in this section authorizes the Agency to take a child into its care against the wishes of a parent having

custody of him or indeed to maintain a child in its care if the parent wishes to resume care of him. The section is quite specific:

“4.—(1) Where it appears to a health board that a child who resides or is found in its area requires care or protection that

he is unlikely to receive unless he is taken into its care, it shall be the duty of the health board to take him into its care

under this section.

(2) Without prejudice to the provisions of Parts III , IV and VI , nothing in this section shall authorise a health board to

take a child into its care against the wishes of a parent having custody of him or of any person acting in loco parentis or

to maintain him in its care under this section if that parent or any such person wishes to resume care of him.

(3) Where a health board has taken a child into its care under this section, it shall be the duty of the board—

(a) subject to the provisions of this section, to maintain the child in its care so long as his welfare appears to the

board to require it and while he remains a child, and

(b) to have regard to the wishes of a parent having custody of him or of any person acting in loco parentis in the

provision of such care.

(4) Without prejudice to the provisions of Parts III , IV and VI , where a health board takes a child into its care because it

appears that he is lost or that a parent having custody of him is missing or that he has been deserted or abandoned, the

board shall endeavour to reunite him with that parent where this appears to the board to be in his best interests.”

48. It would appear from this statutory obligation that a Social Worker obtaining consent to voluntary care is under a professional

duty to be satisfied that the person giving the consent does not lack the capacity to give that consent. Social Workers must actively

consider the issue of capacity and take into account all the circumstances prevailing at the time, including the ability of the parents

to weigh up all the relevant information. Where the Social Worker has doubts about capacity, clearly consent should not be pursued

without further advice from the social work team leader or principal Social Worker. Parents may require special fair procedural

measures in some cases to ensure that they are enabled to fully understand the matters at issue. As stated by O’Malley J in J.G & Ors

-v- Child & Family Agency [2015] IEHC 172 (11 March 2015) “ .... parents must be afforded proper fair procedures”. The Judge went

on to express the view that this obligation would not be discharged by giving a parent a generic document unrelated to the factual

matters in the particular case.

49. English case law on a similar statutory provision indicate that even where the Social Worker is satisfied that there is sufficient

capacity on the part of the parent to consent to voluntary care for their child, the Social Worker should also be satisfied that the

consent is fully informed and that the parent fully understands the consequences of giving such a consent. The parent must

understand and be helped to understand the full range of choices available to them and the consequences of giving or refusing to

give their consent. What is essential is that a voluntary agreement by a parent must not be compulsion in disguise. [CA (A Baby), Re

[2012] EWHC 2190 (Fam) (30 July 2012)]

50. I am satisfied that in this case the evidence adduced establishes that in 2015 there was a full discussion with the parents and

their Social Worker. The parents were open to the idea of voluntary care for Child “A” and were also in agreement with such an option

during a further discussion throughout 2015. A home visit by the Social Worker and her team leader took place, followed by a meeting

two days later between the Social Worker and the parents. At this meeting the parents and the Social Worker explained the decision

reached to Child “A” that there would be a voluntary care arrangement for a six month period. This would include phased sleep over’s

with the identified foster carers followed from this agreement. It became apparent to the Social Worker that the parents were

becoming less sure that voluntary care for Child “A” was the best thing to do. Difficulties in the family dynamic overtook events

however and a crisis period in 2016 could not be managed by the Safety Plan devised for both Child “A” and Child “B” in the period. At

this stage the Social Worker quite properly explained to the parents that it was her professional view that it was necessary to apply

to court for a Care Order to safeguard the safety and welfare of the children. Those proceedings were in fact commenced but later

withdrawn when the parents agreed to a six months voluntary care period for Child “A”.

51. I am satisfied on the evidence that these parents in this case were not coerced to sign the initial voluntary consent. I should also

indicate however that what the Clinical Psychologist described as the parent’s “black and white thinking” was very much reflected in

the Court’s view of the parent’s presentation and evidence in the course of the hearing. If the Agency, for example failed to permit a

parent to remove their child from a voluntary care arrangement entered into under s. 4 (2) of the 1991 Act it would be acting

unlawfully, exposing itself to proceedings at the suit of the parents. Any parent in that position could bring a claim against the

Agency for judicial review or, habeas corpus against the Agency, amongst other potential actions. No such action was taken in this

case. The misuse or abuse of s. 4 would not be acceptable practice and could amount to a denial of fundamental rights of both the

parents and the child and if such a case could have been made out, there is no doubt that it would have been in advance of these s.

18 proceedings.

52. The cross examination of the Social Worker and the father’s own evidence suggested that he had been told that if he did not

agree to voluntary care that the Agency would go to court and get an Interim Care Order. I am satisfied that this is not what either

parent was told by the Social Worker. I accept the social work evidence that the process and the options were fully explained to the

parents and they were given sufficient time to process the information. However, due to the events which occurred, the safety and

welfare of Child “A” and their two other children became urgent. I am satisfied that this was a stressful situation for the parents. I

accept that the ‘black and white’ thinking of the parents, as evidence by both the Clinical Psychologist and the Social Worker might

well have contributed to them ‘hearing’ or ‘concluding’ something else when they were under pressure in considering their options.

53. Having listened carefully to the evidence in this case I have no doubt that the Social Worker explained all options to the parents

and gave them adequate time to consider them, but ultimately the Agency felt obliged to bring an application for an Interim Care

Order. I also accept the social worker’s evidence that she advised the parents that she would assist them in seeking legal advice and

representation in court and it would be up to the Court to make a decision having heard all the evidence. It is quite clear that the

parents understood that they could withdraw their consent to voluntary care and in fact they did withdraw their consent, and were

legally represented at the hearing of the Interim Care Order in 2016.

54. The content of the Consent Form was not challenged in this case. If the agreement was not both explicit and fair in its structure,

drafted in simple straight-forward language so that the parents could readily understand what they had agreed to, it could have been

challenged by the parents, on the advice of their legal representatives, in the High Court, at any time during the currency of these

proceedings.

Parents With Intellectual Disabilities

55. While the parents in this case each have a mild intellectual disability they were acknowledged to have functional capacity to

instruct their respective legal teams. They each had the assistance of advocates during the course of the proceedings but they were

able to give very clear evidence. Each parent has a good working relationship with their Social Worker, and the benefit of other

support services with whom they work co-operatively. They are parents primarily and have managed to provide good enough

parenting to their children with practical supports especially since Child “A” has been in care. I accept the evidence of the witnesses

from the Family Centre and from the Social Worker that in working with the parents they provided adequate explanations for their

advice and actions, they broke tasks down into manageable components and demonstrated new skills rather than describing them on

occasions they used pictures rather than words. However, there were times when the parents still failed to manage the older two

children’s challenging behaviours. Both they and the parents tried their best. The parents were able to identify that Child “A”,

although much loved, was a trigger for challenging behaviours by her brother on many of these occasions.

56. The intellectual disability of the parents in this case was not the only factor in the professional assessment of the social work

department in this case. The strengths of the parents were acknowledged and set out in the social work reports. However Child “A”

has particular needs by virtue of her own learning difficulties and the professional view is that the parents would not be able to meet

these needs. The parents have been able to learn and apply adequate parenting skills for their younger two children in the period that

Child “A” has been in care. They have the benefit of practical supports which enable them to provide adequate parenting. They have

a good bond with the children and love them dearly.

57. It is essential that services are respectful to the role of parents with intellectual disability. Parents with such difficulties are

hampered, not only by their disability but also by numerous "secondary" factors. In this case the parents had to address issues of

substance misuse and they managed to do so, they had to manage the teenage pregnancy of the mother, housing issues, the

father’s poor experience of being parented himself and most importantly the parents had the additional heavy burden of caring for

their eldest child who also has an intellectual disability which appears to been diagnosed only recently. Her speech and Language

deficits have only recently been identified and services put in place.

Order Under Section 18(1)

58. I accept that every effort was made by the Agency to put practical supports in place to scaffold the family in its autonomy and

avoid the necessity of making an application for a Care Order.

59. The preponderance of the professional evidence adduced is that Child “A” increased needs, by reason of her learning difficulties

cannot be met by her parents, despite their best efforts and desire to do so and that for this reason a Care Order is necessary to

safeguard her health development and welfare. The evidence also highlights that if an Order is not made that her emotional health

and development as well as her welfare is likely to be avoidably impaired or neglected. The Agency’s application is supported by the

Guardian Ad Litem.

60. I accept that the evidence adduced meets the threshold criteria of s. 18(1) that Child “A’s” health development and welfare

would be avoidably impaired or neglected if a care Order is not made.

61. I am satisfied that in this case the Care Order should be made until Child “A” is eighteen years old which will be in four years time.

I am satisfied that this is the proportionate order necessary in this case having regarding to the evidence adduced and that an Order

for a lesser duration or a Supervision Order would not be appropriate or adequate and that she requires care or protection which she

is unlikely to receive unless the Court makes an Order for this period.

62. Child “A” has told many professionals that she wishes to remain living primarily with her foster carer and she told the Clinical

Psychologist A and her Guardian Ad Litem that she would resist any effort to move her from this placement. While the views of Child

“A” are not necessarily determinative of the Order the Court makes, her strong views must be taken into account.

Access

63. Having heard the evidence set out above I direct that access between Child “A” and her parents would be both generous and

flexible in accordance with s. 37 of the 1991 Act and if there is any disagreement about the level of such access a formal order will be

considered at that time. However, I hope that the current flexible and generous access arrangements amount to shared care can be

maintained.

Section 47 Directions

A. I direct that this case is reviewed in one year in order to assess ongoing stability of the foster placement at that time

and to review the access arrangements between Child “A” and her parents and siblings;

B. The Agency is directed to provide each parent with all necessary tailored and practical supports and to take due

account of their ability to understand information, retain information and communicate a choice where there is a choice to

be considered by them as parents and to provide them with advocates for the purposes of each child in care review.

C. I direct the Agency to ensure that the recommendations of the Clinical Psychologist A are actioned to include (a) a

referral to a counsellor or psychologist who can assist the mother with emotional regulation (b) a referral to a counsellor

or psychologist who can assist the father to manage episodes of ‘low mood’ (c) a referral for psychotherapy for the father

to enable him to address his own experience of harm as a child. (d) in the case of each parent a referral for cognitive

behavioural therapy (CBT) or ‘mindfulness’ therapy should the parents wish to engage in such therapy.

D. I direct the Agency to provide each parent with all necessary psychological support to enable them to fully understand

the implications and consequences for Child “A” of the diagnosis of the Clinical Psychologist B that she has a borderline

range of ability with particular weaknesses in the area of social and practical skills, and speech and language and to

understand how this diagnosis may impact on her behaviour in her interactions with them.

E. I direct the agency to provide Child “A” with all supports necessary including counselling and provide her with support

to understand the diagnosis of the Clinical Psychologist B;

F. I direct the agency to advocate for Child “A” so that she will receive the educational learning supports from the

Department of Education so that she can achieve the full extent of her education and training in the most appropriate

school environment. In default of such supports being put in place by the Department the Agency to apply for funding for

private supports as reburied and in the event that such supports are not forthcoming that the case be re-entered before

the Court on notice to and re-appointment of the Guardian Ad Litem;

G. I direct the Agency to ensure that Child “A” receives necessary Speech and Language therapy as required, and as

recommended by the Speech and Language therapist;

H. I direct the Agency to ensure that Child “A” is supported in her decision making and that due regard is had to her

ability to understand information, retain information and communicate a choice where her views on any issue are to be

canvassed and taken into account and that all directions are incorporated into her Care Plan;

I. I direct that the case be re-entered before the Court (on notice to and re-appointment of the Guardian Ad Litem) for

the purposes of After Care Panning and the appointment of an After Care Worker with experience in working with young

persons with learning difficulties;

J. Under s. 47 of the 1991 Act I direct that the case is to be re-entered before the Court by the Agency (on notice to

and reappointment of the GAL) in the event that:

(i) If the case becomes unallocated to Social Worker or fostering link worker for a period of four weeks;

(ii) If the Agency (for any reason) fails to adhere to the statutory Care Planning regulations;

(iii) If Child “A’s” current foster placements break down; or should the CFA contemplate or seek to change this

placement.

K. The GAL is to be re-appointed six weeks before the date of re-entry.

L. If the GAL in this case is no longer available at that time then the CFA is to bring an application to the Court pursuant

to s. 23 of the 1991 Act for the purposes of having a Guardian Ad Litem appointed.

65. 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.

Judge Rosemary Horgan

02/24/2017