A judge in a provincial city made a 28-day interim care order for a young girl of his own motion to allow time for the parties to prepare for a fully contested care order extension application. The judge said that it was for the court to determine the appropriate period to extend the care order, neither the applicant nor the child’s guardian ad litem (GAL), who was seeking a care order until the age of 18 for the child.
The child in the proceedings was a young girl of primary school age and was already the subject of an existing two-year care order which was due to expire later the week of the hearing. Previously the Child and Family Agency (CFA) had sought to extend the child’s existing care order for two years with the consent of both parents. However, the child’s GAL had objected to the two-year extension and sought to make his own application under section 18(2) of the Child Care Act 1991 for a full care order to 18 years of age for the child instead.
Submissions on behalf of the CFA, the GAL and the parents had been made to the court at a hearing two weeks earlier. On that occasion, the CFA and the parents had objected to the GAL’s application on the basis that the GAL did not have the requisite standing under section 18(2) of the 1991 Act to make an application in his own right.
At this hearing, the CFA’s solicitor argued that she was not on notice of the GAL’s application and that the court only obtained its jurisdiction from the motion that was already before it. The only motion before the court was the CFA’s application for a two-year extension to the child’s care order and not any other motion.
Counsel for the child’s mother said that she was also entitled to be put on notice of the GAL’s application for the sake of fair procedures. She said that the mother was consenting to a two year extension of the child’s care order, but she was not consenting to a longer term one.
The solicitor for the GAL told the court that the application before the court did not actually specify the duration of the extension being sought; it was simply an application to extend the existing care order. He said that the CFA’s social work report had recommended that the care order be extended for a further two years, but the GAL’s report had recommended that a full care order to 18 years of age be granted.
He argued that the parties were on notice as he had sent an email to each of their legal representatives of his intention to apply to the court for a full care order to 18 years of age. He said that if a GAL did not have standing under section 18(2) of the 1991 Act, then a GAL could not have standing under section 47 of the 1991 Act either. However, the GAL’s standing to make applications under section 47 had been well established by the court.
The judge said that he had considered the matter at length. He said that the moving party of the application before him under section 18 of the 1991 Act was the CFA, and that that application was for an extension of the child’s care order which he noted was due to expire later that week. He said that he did not need to determine whether or not the GAL had standing under section 18(2) of the 1991 Act as the matter could be dealt with sufficiently by hearing the CFA’s extension application.
However, he said that it could not be heard that day as, while the parents were consenting to the CFA’s proposed two-year extension, the GAL had a contrary view that a short extension to the care order was not in the best interests of the child. The judge said that he must consider the GAL’s recommendation and he could not, therefore, make the consented to order to extend the care order for two years. The parents had not consented to a longer term care order. Therefore, he said, the court needed to consider for how long the care order should be extended in the absence of the parents’ consent.
Having considered the wording of section 18(2), he said that it was the court that determined the appropriate period of the care order, not the applicant. “The applicant can submit their view of the timeline, but ultimately it is the court’s decision to decide the appropriate period,” he said.
He said that section 18(2) imposed a duty on the applicant agency to demonstrate that the child required care and protection. He was satisfied that the CFA had done this and that the “grounds for the making of a care order continue[d] to exist with respect to the child.” Under such circumstances, a care order may be extended for “for so long as he remain[ed] a child or for such shorter period as the court may determine.” The judge said that the care order would be extended in due course of the court’s own motion and that it was for the court to decide the proportionate period.
The judge had read the reports submitted. It was the GAL’s opinion that a further two-year extension of the care order failed to provide the long-term stability that the child required and that it would undermine the child’s sense of safety and security. Two capacity assessments had shown that reunification of the child with her parents was not likely. The judge said that even if the child’s welfare would be best served by a care order to 18 years of age, that would in no way diminish the child’s relationship with her mother. The judge added that neither parent was realistically in a position to take over care of the child at present and the child was securely attached to her foster parents.
The judge agreed with counsel’s submission that the mother must be given notice for an extension application to 18 years of age, particularly given the young age of the child.
Under those circumstances, the judge said that he proposed to adjourn the application for mention in a further 28 days and that he was making an interim care order under section 17(2) of the 1991 Act under his own jurisdiction and motion. He said that he was empowered to do so under this section of the Act.
He said that he would fix a date for the hearing of the care order extension at the next hearing date. He would be treating the matter as an application by the CFA to extend the care order for a period that the court deemed appropriate, which may be 18 years of age. He said that at the hearing of the matter, the court would require the usual evidence to which it was entitled and must hear in order to enable it make a care order.
The CFA’s solicitor told the court that the judge’s decision would force him to make an application, and bring witnesses, in respect of a position that was not his position. However, the judge said that he could not extend a care order for a limited period of time in circumstances where the GAL did not believe it would be in the child’s best interests.
In response to the query of counsel for the child’s mother, the judge said that they could take it that they were now on notice of the extension of the care order possibly to the child’s majority. The judge said that the court was not refusing to grant the short extension because the parents had consented to this, but rather he was refusing it because the GAL did not agree that it would be in the child’s best interest.
He said that the application would be to extend the care order for the child, and that it would not be for the applicant to determine the period of the extension, nor for the GAL. He took it that the parents were not consenting to an extension period of longer than two years, and that therefore the application would be contested.
The matter was listed to come before the court for mention two months later for mention and to fix a date for the hearing of the care order extension application. The judge made an interim care order on his own motion in the meantime.
Resumed hearing
When the hearing resumed two months later the judge reserved his judgment in respect of the full care order application to allow him refer a question of law to the High Court by way of a consultative case stated.
The question of law to be answered by the High Court related to the scope of section 18 of the Child Care Act 1991 and the judge’s discretion to determine the length of a care order to be made. However, at the time of writing this report, the judge had not yet provided the parties with the precise question of law he intended to refer to the High Court. In the interim, the judge extended the care order for the child with the consent of the parties. Related judicial review proceedings being taken by the mother and her legal team, seeking a review the judge’s earlier decision to refuse the CFA’s application to the court to extend the child’s care order by two years with the consent of both parents, were also adjourned.
The child in the proceedings was a young girl of primary school age who was already the subject of a two-year care order. Her case had come before the court previously when the CFA had made an application to the court to extend the existing care order with the consent of both parents. On that occasion, the CFA’s application had been opposed by the girl’s guardian ad litem (GAL) who had made his own application under section 18(2) for a full care order to be made to 18 years of age.
At this hearing and prior to the CFA making their application, the judge addressed all of the parties present in the court. It was his understanding of section 18 of the Child Care Act 1991 that while the CFA could make an application for a care order, it was for the court to determine whether the care order was to 18 years of age or for a lesser period. He said that this was how he would be treating this care order application by the CFA. He knew that the parents had consented to two years, but the court had refused to make a care order for two years.
He asked the parents’ legal representatives if they were contesting this application for a care order. Counsel for the mother told the judge that their position was that they were consenting to a care order for two years. The judge reiterated that the court had refused to make a care order for two years and asked again if they were contesting the application before the court that day.
Counsel replied that they were objecting to a care order to 18 years of age being made. However, they were not going to be adducing any evidence to contest the application that day. Counsel did not accept the court’s decision not to hear the CFA’s original application to extend the child’s care order for two years and to hear an application by the CFA for a full care order to 18 years of age instead. She said that the mother should not have to defend or contest an application for a period longer than the two years, to which she had already given her consent. Counsel told the judge that she intended to make an application for a judicial review of the judge’s decision not to hear the original application and to instead extend the scope of the care order application being brought before the court.
The solicitor for the girl’s father told the court that she had received no instructions from the father in respect of the application before the court.
The solicitor for the GAL said that the GAL’s position was clear. He wanted a care order to 18 years of age to be made in respect of the young girl. The judge said that it was a matter for the court to determine the correctness and the duration of the care order that might be made.
The judge told the parties that the court could refer a question of law to the High Court by way of a consultative case stated. However, before it could do so, the application and evidence must have been heard by the court and the court must have made findings of fact. The judge must have found that he could not come to a decision regarding the application because of a lack of clarity regarding a specific question of law.
At this point, the judge told the parties that he would hear the CFA’s application.
The first person to give evidence to the court was an educational psychologist with 35 years’ experience who had been engaged by the CFA to conduct a parental capacity assessment in respect of the child’s parents.
The educational psychologist told the court that she had conducted her assessment of the parents during the previous two years. She said that the terms of reference for the capacity assessment were to get an understanding of the parents’ mental capacity, family dynamics, and to conduct a mental health assessment.
She said that a previous parental capacity assessment had been carried out when the mother had been experiencing very high levels of stress. She had been very young at the time and had suffered several losses in her life. She had been through an incredibly tumultuous time, all of which had taken its toll. The parents had married after this first assessment, so this parental capacity assessment had assessed the parents together.
The parents had engaged well with the process and had been very helpful. She believed that they had been honest with her up until the point when there had been a crisis in their relationship and the mother had tried to hide the extent of the marriage breakdown. The father had subsequently not attended access visits with his children.
The psychologist was asked if she had been aware that the mother had been diagnosed with a mild intellectual disability when she had been 10 years of age. She said that she had been surprised with this diagnosis. The mother had not presented to her with this disability and she had seemed confident. In the psychologist’s opinion, the mother was of low average ability, but nothing that she would have been concerned about. The mother did present with a low memory capability and with some dyslexia, but the psychologist was very satisfied that there was no disability.
She said that the mother’s everyday living skills exceeded her IQ but that this was not uncommon. The mother had been very aware of price of everyday goods and had been competent with everyday skills, in her expert opinion. Despite the dyslexia, the mother had just met the threshold of functional literacy which she needed to manage in everyday life.
Her comprehension had been much better. The mother did experience high levels of anxiety but there had been no evidence of anxiety, irritability or depression nor any aspects of outward directed irritability on the day the psychologist had assessed her approximately 18 months earlier. The psychologist noted that there was always a risk that the person being assessed would try to give a better impression, but it was generally her impression of the mother that she had been upbeat, proactive, generally positive and solution oriented. There had been no evidence of the hallmarks of depression.
The psychologist said that the relationship between the mother and child was on the border of needing intervention and in crisis, it certainly needed a level of support to help her interactions with her child. She thought that her interview assessment had been more negative than her visual assessment. The interview assessment had seemed to emphasise the harms that the mother had experienced when she had been growing up. However, when she had observed the mother with her daughter, she had had a more nuanced impression. The mother had recognised and appreciated what the foster carers were doing for her daughter and that it was good for her. “[The mother] is remarkably positive towards foster carers.”
She believed that it might be possible to return the child to her mother sometime in the future. Access between the mother and her daughter was lovely. The daughter was very relaxed in her mother’s company. The child had lived with her mother for the first year of her life. She did not have a functional memory of her mother, but she still had a bond with her.
A parental capacity assessment was not something that a person either passed or failed. It was more nuanced than that. The psychologist said that she had had real reservations about the parents as a couple, although she had believed that they had been on a trajectory towards reunification. There had been all kind of risks associated with the child returning home to live with the parents as a couple. These risks had included living within a wider family dynamic that had had domestic violence, the undue influence of the husband’s mother and a dysfunctional household. These had been the biggest risks.
When the marriage had broken down, family relationships had not been stable. The mother had since made a lot of progress. Previously, the social worker had viewed the mother’s situation as being of medium risk. However, many the social worker’s recommendations, such as on housing and education, had now happened. While the mother was now on her own, she was getting some support from extended family. She had reconnected with her own father and her uncle and she was engaging well with the professionals. As a result, the psychologist now considered the mother to be a low risk. The child was healthy and happy and also presented as low risk. Access was now unsupervised as a result of the lower risk profile.
The GAL’s solicitor asked the psychologist whether either of the parental capacity assessments had indicated that reunification would be likely. The psychologist agreed that at the time the assessments had been conducted, reunification had not been likely. However, things had changed radically, the mother had done what had been asked of her by Social Work Department and now she believed that reunification was viable.
She agreed with the GAL’s solicitor that the child’s attachment to her foster carers needed to be considered but added that the mother had an excellent relationship with the foster carers. When asked about the possibility of a shared caring arrangement between the mother and the foster carers, the psychologist said that she favoured the foster carers remaining in the child’s life for the long term even in the event that mother and child were reunified.
The foster carers had been asked about reunification and had said that there would be no celebrations in their house if the child could not be reunified with her mother. The foster carers had been very unusual in this regard, they really had a very positive regard for the child’s mother. The psychologist agreed that shared care would be the best option.
The GAL’s solicitor asked if it would not be incredibly difficult to arrange a shared caring arrangement in a way that would not be traumatic for the child. The psychologist replied that a two-year care order would have been appropriate to allow this to happen. She was optimistic for the mother who had been consistently putting her daughter first for a long time.
The judge asked the psychologist if there was not a conflict between her view that the mother may be able to resume care of her child in the future whilst also being in favour of the foster carers’ continued long term involvement in the child’s life. “I am concerned that you have concluded that reunification is viable, but that this needs to be reconciled with the need for the foster carers to remain involved.”
The psychologist said that she was looking at having a situation that would be best for the child, that the people who had taken care of her for four years would remain in her life. The fact that the mother was able to mind the child did not mean that the foster carers should not be involved, in fact, it would be best that they did remain involved.
The GAL’s solicitor asked the psychologist if her observations of the mother had all been during supervised access visits. The psychologist said that this had been the case. They had been short interactions about an hour or two in duration. When asked if it was possible that some of the concerns raised in the parental assessment reports might be more likely to manifest themselves in a longer-term care scenario, the psychologist replied that she could not comment on this as there had not yet been any overnight access between mother and child.
She said that everyone had been happy with the access arrangements that were in place at the time which were 3-4 hours per week unsupervised. She said that her current risk assessment of the mother and child was low risk. However, if circumstances changed, then the risk profile might also change. She had assessed that there was a medium to high risk of failure if reunification had been attempted while the father had remained within the family. However, the changes in the family status, housing, education, family supports, stability, had all contributed to reducing the risk profile.
The psychologist said that the child had a lovely life with her foster carers, it was not a question of pitting one against the other but rather to have both.
When asked by the GAL’s solicitor if there was any reason why all of these objectives could not take place while a full care order to 18 years of age was in place, the psychologist replied that, if there was no legal impediment, she saw no reason why they could not proceed with their objectives as described.
The mother’s counsel said that the granting of a care order to 18 by a court generally implied that reunification was not on the table. However, the judge interjected to say that there was nothing to preclude the parent applying to discharge the care order. Counsel asked the psychologist whether, in her experience of care orders to 18, there had been continued efforts towards reunification. The psychologist replied that she was not aware of any such instances. She agreed with counsel that the mother’s skills and her context had changed and that reunification was now viable. However, it should be on a phased basis. It would need to proceed at the child’s pace.
When asked about her opinion that the mother did not suffer from a mild intellectual disability, she agreed that knowing this should help to build the mother’s confidence and would help her with caring for her daughter. With regard to the mother’s positive attitude towards the foster carers, she said that the mother really put her daughter first. The foster carers had also been exceptionally welcoming towards the mother. The foster carers would be delighted to keep the child until she was 18, but they equally saw the value of her returning to her mother.
When asked if she was surprised that the GAL was recommending a full care order to 18 years of age for the child, the psychologist said that there were some concerns that the mother would not be able to cope under pressure and she understood the GAL’s point of view when the child had such supportive foster carers. However, she disagreed with him and said that the child should have an opportunity to be reunited with her mother but that the foster carers should remain involved. She believed that the GAL’s insights were focused on the strength of the foster carers. However, her view was that the mother should be supported towards achieving shared care of her child with the foster carers.
The judge asked the psychologist if she had experience of any such shared caring arrangements. The psychologist said that she had worked with families where the foster carers had remained involved on an informal basis, but not where it had been on a formal basis.
The judge also asked about her view that the mother’s focus had been to put her child first, but that in her the assessments, she had said that the mother had been focused on the harms that had been done to her. The psychologist said that the mother’s focus on her own harms had happened when she was being interviewed during the assessment. However, when she observed them during the access visits, the mother had always interacted with her child very positively.
The social worker told the court that the mother had been known to the Social Work Department since she had been eight years of age. She had come into care under an interim care order when she was 16 years of age following the death of her mother. She had been placed in relative foster care with her grandfather, who had subsequently died. She had been pregnant at that time. She had been in a residential care facility where the first parental capacity assessment had been conducted.
The social worker said that there had been a lot going on at the time including pressures associated with the Covid 19 pandemic and with the father of her child (who she subsequently married). That parental capacity assessment indicated that the mother would require a lot of supports to be put in place. She had had a number of placements during that time. Ultimately, her child had been placed with her current foster carers in or around four years ago. The marriage between the mother and the child’s father had broken down about two years ago.
The social worker said that the mother had since made amazing progress and had shown considerable maturity. She was currently in emergency accommodation and was engaging with all of the supports in order to get her own accommodation. She was doing everything that was being asked of her in the best interest of her child. The social worker’s fears were when she had been with her husband. She had family who were giving her strong supports. She was increasing her independence. It was an unusual situation in that she had such a strong working relationship with the foster carers. There was a lot of mutual respect.
Access was currently unsupervised. She watched movies sometimes with her daughter. It was a lovely relationship. There was nothing in the care plan regarding reunification, however, the social worker said that she was willing to explore this.
She said that the father had been only 15 years of age when the child had been born. His absence had impacted the child, the child had wanted to know why her father did not want to see her. The social worker said that reunification with the child’s father was not planned.
The child was in her second year of preschool and was getting on very well. She was getting some play therapy and had just returned from a visit to the USA with her foster carers. She agreed with the GAL’s assessment that the child had a strong attachment to her foster carers, she had three mothers. The social worker said that the mother wanted the foster carers to remain in her daughter’s life, but she was also doing everything that was required to be reunified with her daughter. She was to be commended.
When asked if a two-year extension to the current care order would make a difference to the child at this stage, the social worker said that the child was still young and was very secure and she did not feel that it would matter to her at this stage. She had assessed that a two-year extension to the child’s existing care order was proportionate and necessary.
The solicitor for the GAL asked the social worker if the conclusion of the first parental capacity assessment, that the mother would need a lot of hands on supports to help her in caring for her child, was still the case. The social worker that now that the mother was accessing housing and that she was finishing an educational course, she thought that she might not need all of the supports that had been suggested originally.
However, she said that there were still a lot of hypotheticals, and that the CFA had asked for the two-year extension to allow them explore these issues.
She agreed with the psychologist’s opinion that there was a need to consider a shared care arrangement between the mother and the foster carers. There were three people in the child’s life who loved her.
She said that the CFA looked at the mother and child together when considering possible reunification. The two-year extension had been proposed to see if this might be possible. On the other hand, the CFA had also considered what would be in the best interests of the child – stability, permanency – it was always a balance.
She was asked if these two perspectives could be reconciled under a care order to 18 years of age, a situation that would allow the CFA to retain oversight, provide any necessary supports and even allow the potential to discharge the care order in the long term. The social worker thought that it was premature to take away the potential for reunification at this time. The judge interjected to say that no one was suggesting that. The social worker said that the CFA had wished to assess the situation over next two years.
When asked by the judge why a degree of permanency could not be put in place now, the social worker said that the child was safe and the extended timeframe was really to give the mother a chance. She said that once a care order to 18 years of age was granted, it was her experience that reunification was not then pursued. The judge pointed out that it was a statutory obligation for the CFA to pursue reunification, and that this was contrary to the social worker’s statement that the CFA did not pursue reunification once a full care order had been made. The social worker corrected herself and agreed that the CFA did have a statutory obligation to pursue reunification.
She did not agree with the GAL’s concerns about the instability or uncertainty of the child’s current situation. She said that the child currently has had to manage changes to other aspects of her life, for example, she was due to start junior infants at the next school term. The duration of the care order would not change anything substantive for the child.
She said that she wanted to afford the mother an opportunity over the next two years. She had reduced her risk profile having moved away from her husband and his family, going back to college, seeking her own housing and reengaging with her own family for support. Her engagement with the Social Work Department had been excellent.
The judge asked the social worker if there had been any access overnight with the mother. The social worker replied that there had not been any overnight access at that time, but that she was open to it. The child had also requested to sleepover with her mother.
The GAL told the court that he had been the child’s GAL for about four years. He typically saw the child every two to three months and saw her also at some access visits. The child was healthy, exceptionally happy, content and very bubbly. She was very happy with her foster carers but was also very happy to see her mother.
The foster carers were highly tuned to her needs and were very supportive of maintaining her connections with her family. The child would say that she had three mothers.
The child was very bright and articulate and loved to read. She was starting junior infants at the next school term and she engaged in dance, theatre, gymnastics and had lots of friends.
Her father was the only fly in the ointment. She had complex emotions about her father which had caused her anxiety. She had engaged in play therapy which had helped her process some of these emotions.
The child was aware that there was a judge that made decisions about her life. She had told the GAL that she wanted to stay with her foster carers for a very long time. However, she also loved her mother and enjoyed access with her. The GAL said that there was potential to increase the access but there had not yet been any clear trajectory to do so. This may have had a lot to do with logistics rather than the mother’s lack of desire.
However, the GAL said that the child’s strong relationships were with her foster carers with whom she has been living since she was 14 months old. It was the GAL’s view that if the child were to be moved from her foster carers, whether at that moment or in two years’ time, it would be very disruptive for her. It was his view that the child’s primary attachments had been formed with her foster carers and that breaking those primary attachments would cause her harm. The long-term care order was required to provide legal security for the child. It did not preclude having a relationship with her mother. The GAL had no issue with the possibility of shared caring in general, but said that it would need to be tested. He said that the child had a right to certainty.
The CFA’s solicitor challenged the GAL, saying that that the situation had moved on from the position of the parental capacity assessments and that the mother had made a lot of progress during the past 18 months. It could not be ignored that the child had a strong attachment to her mother as well as her foster carers. No one was suggesting that there be a break in the attachment between the child and her foster carers. The CFA was considering that there may be a shift in the primary caring responsibilities from the foster carers to the mother but that, for example, the child could go to stay with the foster carers at weekends. He asked the GAL if it was not the case that the CFA owed it to the child’s mother to trial such arrangements.
The GAL replied that he did not feel that this could be done safely. He said that none of the changes that the mother had made had led to any increase in the mother’s access schedule although he acknowledged that the access was now unsupervised. He did not agree that a two-year order was in the child’s best interests. He said that overnight access visits had never been mentioned to him. If all was so positive now with the child’s mother why had there not been any increase in the access over the past number of months.
Counsel for the mother asked the GAL how he had reached his conclusions in his report. She asked him if he had ever observed an access visit between the child and her mother. The GAL replied that he had observed three visits one of which had been with the mother specifically. He said that he was relying on his experience as a GAL, on his meetings with the child and his attendances at all of the social work meetings.
The judge commented that the recommendations had never been to sever all contact between the child and her mother. A care order to 18 years of age was not a de facto adoption. An adoption order involved a severance of relations between the parent and child.
The judge said that the application for a two-year extension to the care order had been heard by him and he had not granted that order. That application was no longer before the court. Counsel for the mother told the judge that she did not agree that the matter had been heard. While she accepted that the judge had reached a decision, she argued that he had not heard any evidence in relation to that application.
Counsel for the mother asked the GAL if all of the various care options had been presented to the child when she had expressed her view that she had wanted to stay with her foster carers for a very long time. She said that it appeared to her that the GAL had not put all of the options to the child but instead put a quite limited set of options to her. As a result, the voice of the child was not completely before the court.
The GAL said that it was unclear what would be expected to change over the next two years. It was important not to overstate the progress that had been made. It had not led to any substantive changes in the mother’s access with her child.
When asked if he accepted the psychologists opinion that reunification was low risk, the GAL responded: “How do you quantify the risk without it being tested?” It was his position that there had been no material change.
The GAL accepted that the second parental capacity assessment outweighed the earlier parental capacity assessment and that some of the blocks associated with the father and his family had been overcome. However, he said that these were not the only issues. He could not see how the child’s relationship with her foster carers could be broken at this stage.
Counsel asked the GAL how he was able to reconcile the statutory objective of always aiming for possible reunification with his position that breaking the bonds with the foster carers now or in two years’ time was not in the child’s best interest. He replied that the child needed legal certainty. However, if reunification were to occur in the future, there would have to be more access. When asked why he had not recommended increased access before, he replied that it had not been feasible at that time. Counsel said that the GAL had made his recommendation for a full care order, but he had not provided evidence to support this recommendation.
The judge said told the court that he would consider the submissions that had had been made to him and that he was reserving his decision at that time.
In the meantime, he extended the interim care order that was in place for the child for a further 29 days.