Care Order refused for young baby, Supervision Order granted instead – 2014vol1#14

A Care Order for a baby born prematurely was refused by the District Court in a provincial city following a four-day hearing. A Supervision Order was then granted, on the basis that the parents and baby lived with the baby’s paternal grandparents in their home in Dublin. An Interim Care Order had been in place from the baby’s birth until the full Care Order hearing.

Opening the case, the solicitor for the Child and Family Agency (CFA) told the court the agency was seeking a full Care Order for six months at this stage. Their first witness would be a neo-natal specialist, as the baby had been born ten weeks premature and had been in hospital since his birth. He was now ready for discharge and the CFA was seeking the Care Order because of concerns about the mother’s ante-natal history.

The case had already been the subject of an unsuccessful application in the High Court under Article 40 of the Constitution (habeas corpus) and the judge said he had read the High Court ruling. The judge who granted the Interim Care Order recused himself from the case following complaints about him from the parents’ barrister, and the Care Order application was heard by a different District Court judge.

Neo-natal specialist’s evidence

The neo-natal specialist who cared for the baby told the court that the baby had been born at 29 weeks, weighing about two pounds. He needed oxygen and breathing support because of his immature lungs, as well as feeding support and temperature support. He had neo-natal lung disease, which was a feature of such premature babies. Over time, these supports could be withdrawn.

He was now over six weeks beyond his gestational age. He had had a hernia operation the previous month, from which he recovered well, he was off oxygen support and feeding well. He would need to be monitored for the first two years of his life. “He is a vulnerable little boy because he needed oxygen support for so long. He would have less reserves to deal with coughs, colds, chest infections, etc.”

He might need other supports, and Enable Ireland had been asked to carry out an assessment to see if he would need supports like speech and language therapy. Already he was receiving physiotherapy. “It is very important that anyone looking after him would be able to continue that,” he said.

It was important he avoided tobacco smoke and lived in a warm and hygienic environment. Cigarette smoking during pregnancy did have an impact on low birth weight, he said.

The doctor told the parents’ barrister that both parents were with the baby in hospital frequently and were involved in caring for him. They were “completely appropriate” in their interaction with him [the doctor] and the other staff.

Asked about the concerns of the social work department that the proposed home with the grandparents would involve a lot of other grand-children visiting, he said: “You can’t discharge a child into a bubble, when you discharge a child it will be into the community. He will get coughs and colds no matter what we do. To reduce the risk we emphasise the avoidance of tobacco smoke, having injections, care at home to minimise contact with people with coughs and colds, hand-washing etc. We can’t isolate him completely.”

Asked about an undertaking from the grandparents that they would not smoke in the house, he said his impression of the parents was that they understood the importance of this.

The parents’ barrister said that a previous child born to the mother had been born with severe cerebral palsy, which resulted in a very large compensation award from the HSE. A second child was born at 24 weeks and survived for only three weeks. The mother had received a stitch, suggesting poor placenta function. She was also very small, which would contribute to the baby’s low birth weight.

The doctor said there were a number of factors. There appeared to be poor placenta function. Cigarette smoking contributed to poor placenta functioning, but he could not comment further on its causes.

Asked if the children’s hospital nearest to the grand-parents’ home could provide the necessary care for the baby, he said it could, the notes could be transferred.

Psychiatrist’s evidence

A consultant psychiatrist who had examined the mother told the court she had been very distressed when the Interim Care Order was sought three days after the baby’s birth, and was puzzled as to why the HSE (as it then was) had concerns about her parenting. She also stressed that the baby’s father was involved and had rights, and should be entitled to have custody. She did not want a repeat of her experience with her other children.

In relation to her first child, she felt she could not provide the care he required and suggested he go into care. Before his birth she had had incidents of self-harming and she took an over-dose when the child said he did not want to see her any more. She hoped to be able to care for this baby along with the father.

The psychiatrist said she admitted her mood was “up and down” but he was unable to detect any psychotic symptoms.

The parents’ barrister asked him if he was aware of the mother’s own chaotic upbringing. She had been in care herself, and her mother was a chronic alcoholic. “She had an extremely miserable childhood. She was sent to different residential homes. She has had a difficult relationship with social workers.”

The psychiatrist agreed. Asked about her drug use, he said she had been using substances before the birth of the oldest child, but not for the past seven years. “There was never the remotest concern about drug-taking,” he said.

He said her separation from her own parents contributed to her problems, including her difficulties around mistrusting others, especially professionals, and her capacity or willingness to take advice, especially during her last pregnancy. He had gone through all the diagnostic criteria, and concluded she did not pass the threshold for a personality disorder.

She saw the present situation as leading to the loss of her child which would be a “horrible thing in her life”. Her mistrust of professionals was getting in the way of hearing advice on the health and welfare of her child. She was at the lower end of intellectual functioning, and information on the health and welfare of the child would be best imparted on a one-to-one basis. Her difficulties in her relationships with social workers would have to be addressed going forward.

Asked about her relationship with her partner, he said they seemed to relate very well to each other and had stuck together after the birth, which was an encouraging start. They had discussed living with the father’s family, where they would have the use of two bedrooms. They were aware of the needs of the baby. “She struck me as a concerned mother.”

Asked why he had supported a proposal that there be a Supervision Order rather than a Care Order, he said he had been asked to give an opinion on whether the mother was mentally ill or had a personality disorder, and he gave that. “You have to balance the needs of the child with the aspirations of the mother to rear her child. In a situation where the father’s family is offering support, where there will be support from local social services, under those assumptions I am submitting a Supervision Order would be worth considering.”

Asked by the CFA solicitor if the mother’s difficulties with professionals did not make this difficult, he said it was a matter of concern. Asked by the judge about her capacity to care for herself and the baby, including being told the baby might need to go back into hospital, the psychiatrist said the circumstances envisaged were living in a more stable environment with the support of other people. In the past the “missing ingredient” was a relatively stable environment and the back-up of extended family and staff.

“The relationship might not be as stable as you think,” the CFA solicitor said. “Would you accept from the hospital files that the mother has been volatile at times? Agitated and aggressive on the ward?”

Psychiatrist: “There are many reasons why a person might be agitated.”

Judge: “I want to know how does this affect her ability to care for her child. I don’t care what happens in relation to other people on the ward. I don’t want a generalised discussion.”

The CFA solicitor said that when pregnant the mother did not want to be examined, did not want ultrasound, said she wanted a second opinion from another hospital. What did this say about her capacity to care for her child?

Psychiatrist: “One would have to have a degree of concern. The difference is the actual existence of [the baby] and she has to care for him.”

Judge: “I know some very volatile people who can be as good as gold when they calm down. I prefer not to put too much emphasis on it.”

The CFA solicitor described an incident in which the mother was alleged to have attempted to cut her older child’s hair during access, which upset him. “Do you see how [the older child] might be afraid of his mother?” she asked.

Psychiatrist: “I never met [the older child]. If an adult was behaving in an argumentative manner I would understand why a child would be afraid. The relationship between [this child] and his mother is not framed in a normal fashion. He’s in foster care, the relationship is in an access arrangement.”

Judge: “Children are very capricious about what they do and don’t want. I don’t know what conclusion you are trying to draw from that.”

CFA solicitor: “If she’s volatile and in a bad relationship with social workers it will have an adverse effect on the child.”

Psychiatrist: “There is a difference between a situation where she is seeing a child during access, and caring for him on an ongoing basis. The difficulty I have is with the expectation she would be argumentative and difficult in an ongoing situation.”

CFA solicitor: “She was difficult and argumentative when she was pregnant.”

Asked about transience in her previous relationships, the psychiatrist said she had been married for five years. Her husband, the father of the older child, chose not to be involved. “I would not describe a five-year marriage as transient. My submission about a Supervision Order is that they would be living with a family that could offer them support in caring for their child.

“She has never had an opportunity to relate to services in the context of caring for her child. There is a real difference between fearing that the child will be removed and where she has custody and care of the child and the support of her partner and his family.”

CFA solicitor: “A Supervision Order involves monitoring and I put it to you she won’t accept that monitoring.”

Psychiatrist: “I think it’s very important that the people working with her understand her concerns.”

Outlining the case so far, the CFA solicitor said a guardian ad litem (GAL) had been appointed in the case by the previous District Court judge. This was the same GAL as had been appointed to the older child, and the CFA was seeking a six-month Care Order partly because this would allow the GAL to prepare a report, which would provide an independent perspective.

The judge said he was coming fresh to the case, and the court was dealing with a moving picture. “One of the factors here is that we have a father. You can’t bring a Care Order unless both parents are inadequate. We have someone who is standing up and being counted. The CFA will have to prove his inability to look after the child as well. Will we be hearing that evidence from the CFA? The law as I understand it is, if the father is capable of looking after the child, that’s the end of the story.”

The CFA solicitor said they knew very little about the father. “We have significant doubts about the stability of the relationship. The mother is significantly more dominant than the father. Also he intends to work.”

Judge: “There is always a question mark about people’s relationships. But dare I say it I do a lot of family law and I see a lot of young women with three or four children with three of four different fathers and they seem to be doing fine.”

Solicitor: “These young women usually have their own place to live. This mother doesn’t.”

The judge said the case would be much stronger if the mother was on her own with no place to live. But if the CFA proved she was not able to care for her child they were going to have to go through it all again in relation to the father.

Solicitor: “The mother already has a child in care. That doesn’t mean all her other children should be in care, but it does give rise to concern. That is why I’m going to focus on the child in care.”

First social worker’s evidence

The first social worker to give evidence told the court said she had been the social worker for the older child since 2010. Following the birth of this child the mother had moved to the provincial city where she now lived. At the time there were concerns about her mental health, her relationships and her moves in and out of various addresses, it was “a pattern of transience”.

The older child had special needs around feeding and moving and was placed in foster care. After access with his mother he had stomach problems and access was not positive for him. He said he was frightened of his mother.

The judge interjected that this was not necessarily the mother’s fault. In private family law he often heard of children being upset after access with their fathers. It was not necessarily the answer to withdraw access to the father. “It’s not necessarily logical to attribute it to something negative in the mother, it could be something negative in the situation.”

The social worker said this child had cognitive difficulties. He was like a five-year-old, though he was now 15. “I would have concerns for his safety. He must have been exposed …”

“We’re now really in the stratosphere,” the judge said.

“The mother was shaking and shouting,” the social worker began.

“That was never put in 28 hours before the court [hearing Interim Care Order applications],” the parents’ barrister said. “It was never in any report.”

Pressed by the judge for specifics, the social worker said the mother was rough when cutting the child’s hair and he was fearful after it. She was hostile to the social workers.

Asked by the judge what was the point of this, the CFA solicitor said: “There were issues when [the older child] went into care and those issues are still there.”

The social worker continued that the mother had very bad experience of foster care herself and she wanted her relationship with the child to be on her own terms, without social workers’ intervention. Just because one child was in care did not mean other children should be in care. In this case they saw the same pattern over again, and saw the last pregnancy as a high risk pregnancy. She was homeless.

She moved to Dublin in September and then moved back to have the baby. There was a lot of concern about where she was living during the pregnancy. It was a high-risk pregnancy. She had had two early births. She presented as volatile. She said she smoked up to 80 cigarettes a day. She failed to follow advice, especially with regard to smoking. She was advised to attend a smoking cessation officer and declined to do so. She had a threatened miscarriage.

She was dissatisfied with the nursing staff in the pre-birth ward. The relationships improved in the neo-natal ward. When she was discharged from hospital she had no-where to stay, and she got a place in a hostel for the parents of children who had to stay in hospital.

The social worker said the parents had been very attentive in looking after their baby. However, there were concerns about the mother being over-involved with the other parents, and about her personal hygiene and her smoking.

The social worker met the father’s parents. They had never had social worker involvement in their lives before. They wanted the baby to come and live with them, along with the parents. The mother had not, to date, spent any time living with them.

The parents’ barrister said the parents had offered, in order to avoid the child going into foster care, an arrangement whereby the father took the child to his parents’ home and the mother lived nearby with his sister.

Social worker: “We said it would not be possible to manage this from [the provincial city]. We didn’t think it was a temporary arrangement. We had very little control about what the mother would do in that situation.”

Mother’s evidence

The mother told the court she was one of five siblings, she had grown up in another jurisdiction where her mother was an alcoholic and her stepfather had abused her. She has little or no relationship with her family.

She came to Ireland when she was 19 or 20 and got pregnant in a relationship which didn’t work out. She found it difficult to care for her first child, who needed 24-hour care, she had had depression and suicidal thoughts and was in hospital for a while. It was a stressful time with her first child in foster care and she lost a second baby a few weeks after birth.

She said she had not seen her son for some years, but she said:“He is my son, I love him to bits, there is never a day that goes by when he is not in my heart.” She said she did not give up on him but she did stop access because it was not right for her son, who was not sleeping and becoming agitated.

Moving on to the pregnancy of last year, she said some of the time she was “stressed and difficult”, particularly when the ‘stitch’ was being put in to ward off the risk of a premature labour. It had been “a scary thought – what could have gone wrong?”

She said she was older and wiser now than she had been when she had her first child. She said she had met her partner on an internet music site. Asked if they sometimes had difficulties she said: “We do at times but it hasn’t stopped us from loving each other. We do the feeding, the changing,  anything parents would do for a baby.”

On the baby’s health problems, she said that “his colour in his face would tell you” if there was a problem and that they would try and stimulate him themselves and see if they could “bring him around. We have been advised but I know what to do with him,” she said, putting him over her shoulder and getting the colour back into his face. “He is very good,” she said, “he is breathing on his own.”

Regarding her relationship with her partner’s family she said they got on “absolutely great”.

The solicitor for the CFA asked her if she could understand the social workers’ concerns. “To be honest I really can’t, they have never seen me with [her son] apart from the nurses.”

She said she had heard “a lot of things” in court and that she remembered some of the incidents referred to earlier and didn’t remember others.

It was put to her that she did not fully engage with professionals in the hospital. She replied: “I’m a bit confused because I was engaging with the doctors.” On the day of the “stitch” intervention and the charge that she did not follow medical advice, leaving the ward to have a cigarette she said: “If I didn’t really take medical advice on this one why did I go [for the stitch] at 14 weeks?

Referring an assertion that she had failed to supply a urine sample, she said: “If you go to a toilet before an appointment you can’t be expected to go to minutes later.” She also said there had been no advice or any instruction to see a smoking cessation officer. She said she had cut down on her smoking during the pregnancy, down to six and later to three, adding: “You can’t stop smoking automatically like that.” She said she was now on electric cigarettes.

The judge told her that she had to do what she was told, to which she replied: “Yeah.” She also agreed with a statement from the barrister for the CFA that she did not always take advice given to her by professionals, but she said sometimes she did.

It was put to her that she had prioritized herself and having a cigarette rather than the health of the baby. “It was not my priority but I was under a lot of stress,” she said, adding that she took the cigarette “to keep myself calm”.

When it was put to her that she had personality traits that meant when she was “hell-bent” on a course of action “nothing with stop you”, she replied: “That is not the case.”

The questioning then moved on to the period in which the woman was to move the pregnancy to Dublin, only to return later to the provincial city where the baby was born three weeks later.

“The reason I came back was because when I was in [the Dublin hospital] I didn’t feel comfortable there. There was things happening in the [hospital] at that time, I didn’t feel it was safe.” Asked further she said: “An expectant mother and partner were jacking up in the wards in [the hospital]. They were taking heroin.”

It was put to the woman that the CFA needed to look at the circumstances in which her first child was taken into care and the agency needed to question whether or not things had changed since then. The woman said: “But things are different.”

The solicitor said that “some things had not changed at all”, arguing that she had displayed a difficulty in engaging with pre-natal services and that she had difficulties with professionals. She replied: “Maybe social workers. It has not been an easy task so there has been [difficulties].”

Referring to her circumstances around the time of the birth of her first child, she said: “I was homeless at that time which I have never, ever disputed.” She denied there were relationship difficulties with her partner or with his family.

“[The baby] is with his mum and dad and we love him to bits. It has been hard but we have gone through worst case scenario cases and we have coped and the bond there between mother and child and child and father, it can’t be broken,” she said. As to any future living arrangement with her partner’s family she said: “It’s like anywhere you go, you might have ups and downs.”

Referring to the “stitch” she said she had been afraid that it could trigger premature labour but her partner’s mother had advised her to do it, so she did.

She said they were down as tenants in the Dublin house and would be able to apply for rent allowance after six months. “They [the CFA] are saying there is no support but the support is there,” she said. “Even though we can manage we still want that extra support.

Father’s Evidence

The father told the court he had known the mother for nearly two years and they got on fine. He saw the relationship as long term and that he had a close family. As regards his own sister he said she viewed his partner as “like another sister” and that he did not see any difficulties regarding living arrangements.

He denied there had been huge rows. Regarding claims made in court, primarily by the social worker involved in their case, that his partner was the “dominant” one in the relationship, he said: “women think they are dominant.” He agreed it had been a very stressful time but regarding whether he understood the social worker’s concerns he said: “I do and I don’t.”

As to whether his partner could be a risk to the child he said: “No, never.” Asked if he could cope on his own if required, he said: “Oh yeah, I would.” He said he had 12 nieces and nephews and that he had bottle fed them, changed nappies, brought them out and cooked dinners for them. “I am very confident in raising my son,” he said.

He said he had no difficulties with social workers in general but he had taken issue with the main social worker in their case in that “as soon as you enter the room” she was “straight to [his partner’s] past”.

As for smoking he said his father had had a minor stroke and that he was off cigarettes, while his mother had cut down to “six or seven” cigarettes a day.

Under cross-examination he was asked if he accepted that the social workers had some concerns: “I do, yeah.”

It was put to him that there were concerns over his partner but apparently he did not seem to have any concerns. “She [the social worker] is threatening to take my son away from me when it [the concerns about the mother] has nothing to do with me,” he said. “I wasn’t around back then. That is unfair.”

It was put to him that during the pregnancy his partner’s behaviour was “erratic”, to which he said: “I accept that, yeah”. But he said “she did get on with doctors” though “not all the time” with nurses.

Regarding an incident in which it was claimed that, while on a drip to prevent the onset of premature labour on a date in August she had left the labour ward to go outside to have a cigarette, he said: “I followed her out.”

He also said that prior to his child being born he had been staying with his sister for a couple of weeks.

Under cross-examination the father was asked about his partner’s problems. He responded: “In the past. Not now. From what I know of [her] she is not the same as she was in the past.”

When asked if she had not prioritised her health during the pregnancy as she might have done, he said: “If she was [like that] she wouldn’t have attended hospital or GP visits.”

The barrister for the CFA then put it to him that she “had not done what they [health professionals] wanted her to do”. He replied: “She couldn’t draw blood because her vein collapsed. For the urine [sample] she had gone to the toilet shortly beforehand. If you are after going to the toilet beforehand how can you do that again?”

The barrister then asked him about the incident in which it was alleged the woman had disconnected the drip attached to her arm at one point and had walked out of the hospital against medical advice to have a cigarette.

“Disconnecting the drip, I can’t say – I wasn’t there at the time. I followed her [outside].” He was asked was it that he had been “unable to intervene” in that instance. He said: “I did get her to come back.” He also countered suggestions that she had stayed outside for more than 30 minutes, stating: “It was 15 minutes.”

During these exchanges counsel for the woman said the mother had not in fact disconnected the drip.

Referring to the plan for the couple to live in his parents’ house he said: “I believe it will work out wonderful. Some of my other family members have lived there with her children and it all worked out fine.” Asked if there was likely to be clashes between his partner and his mother he said: “no.”

Asked if he was minimizing issues that may arise he said: “I can’t say what’s going to happen in 10 months but at the moment we are getting along fine.”

He said his parents’ house was a three bedroom property and that he and his partner would have the use of two bedrooms in it. On the issue of smoking, he said: “There is no smoking allowed in my parents’ house. We are all making an effort to chop the cigarettes.” He said his mother and father had cut down while he and his partner were now on electric cigarettes.

He denied that apart from ante-natal appointments he had not been present for much of the pregnancy and when asked if the CFA had confidence in him he said: “They have got confidence in me. There were no problems with me.” He continued that the social worker involved in their case had gone “straight onto [his partner’s] past and background,” maybe spending as little as five minutes speaking with him about his background before returning once again to his partner’s history.

He said they got on fine with another social worker.

When questioned about his child’s health, and the fact that the baby has a high possibility of having some type of neurological difficulty, he said: “I am aware of that, yeah,” adding: “He is feeding perfectly now. We do not need a lot of help but it is nice to have it if we do need it,” he said of his parents.

Psychologist’s evidence

A psychologist called to give evidence over possible bonding issues were the child placed in foster care was asked by the judge about the potential impact of a six month Care Order on his emotional development. She said: “I think the more change a child has there are certainly elements of risk regarding their emotional development. It’s very difficult to quantify but it would be my professional opinion that there would be a risk.”

Earlier she had said of the woman, whom she knew years before when she was still seeing her first child: “She is a very different lady to the lady I would have met in 2002 and 2003. She appears to have made a lot of changes in her life.”

The psychologist said the woman was now no longer drinking and had ceased taking drugs many years before and now seemed to be on e-cigarettes.

She said she was “amazed” that the woman had not been offered any professional intervention following the death of her daughter after only a few weeks some years beforehand, and that she was “surprised” that bereavement counselling had not been made available.

She said the bond between mother and this baby was obvious: “This morning when I met her, her face lit up when she talked of her little baby boy.”

She was also asked about supervised access, as would have been stipulated in the event of a Care Order being granted. “Supervised access is a very stressful environment for any mother,” she said. “They should be given the opportunity to look after their son,” she said, adding that family support in Dublin would be of benefit.

It was put to the psychologist that the woman “has limited cognitive ability”, to which the psychologist said: “I believe there are some intellectual difficulties, yes”, but added that every parent needed support and over the years she had seen people of low cognitive ability who had been very good parents.

She also said the woman would find it easier with her partner but said: “She is a survivor, she will work through it. This is the most important thing in her life now.” Being a mother was now “her one goal in life”.

Giving his ruling, the judge said: “When this child was born, at that stage a premature baby, it set off a series of events that culminated in an Interim Care Order in favour of the HSE, as was then, in the District Court.”

He said the threshold and standard of proof required is higher [for a full Care Order] than for an Interim Care Order. He said once Section 18 needed to be considered “the court must be satisfied” that these circumstances exist.

“Having heard the evidence it seems that there was sufficient evidence to make the Interim Care Order and that was the evidence that was available at the time. Things have moved on since then. The baby is healthy and has been thriving.

“As a result of that Interim Care Order the respondents made an application to the High Court under Article 40 of the Constitution and it does seem that application was inappropriate and was so found by the High Court.”

He said the parents had also appealed the Interim Care Order to the Circuit Court, even though it was now moot, adding: “It shows that everybody has been doing their stuff.” He said everyone had been attending to the child’s needs on both sides and that the baby when born had weighed less than 1 kg/2Ibs and was now 9.5lbs and as a result everyone is a lot more relieved now than they were previously. He said the child’s healthy condition had taken “the steam out of it” even though the child was still “at considerable risk, health-wise”.

Then he said: “The Care Order will not be made and the court will order a Supervision Order.”

He said if anything, the circumstances that might have required a Care Order “are beginning to recede all the time,” stating: “The parents have been exemplary,” particularly in tending to the child in the hospital, and “they have established a track record.

“Things are at a very positive point. We are now at the situation where we have relatives in Dublin who have come on board. It’s a good news story generally.”

He said serious health issues continued to exist but the court was satisfied regarding the Supervision Order, adding: “It seems to be the appropriate thing”. He said the psychologist’s report and the evidence suggested that the Supervision Order was a good idea and that it now needed to be explored. He made the Supervision Order for 12 months, to be reviewed in Dublin after three or four months.

“It’s important to strike while the iron is hot,” he said. The child would be discharged from the hospital and the court system was to be congratulated on “getting this whole stuff done and dusted by today”.

He said the transfer of files to Dublin was a logistical issue and he asked the respondents for their full cooperation with the CFA.

There was no objection to the 12 month period of the order. A number of undertakings were then attached to the order, including the full engagement of the respondents with the CFA and professionals, to not smoke in the house or around the baby and to endeavour that other people did not do so either, and to grant permission for the CFA to contact health professionals in the Dublin area where the family would be living. It meant signing consent for the CFA to contact GPs, hospitals, the HSE and other professionals, and that the family would need to engage with the social worker previously involved in the case – and who gave evidence to the court – until the file was fully transferred to Dublin.

It was also suggested that the mother undertake some bereavement counselling, as suggested by a psychologist who had given evidence.