The judge in Dublin District Court granted a care order for three children from a Traveller background and explained her decision in a written judgment. All the children had additional needs.
The parents were present and legally represented. The guardian ad litem (GAL) was also present and legally represented.
The court heard that the children had originally entered care by voluntary agreement. The father had suffered a serious accident and had spent a number of months in hospital in a coma. After his discharge an assessment was carried out. Both parents later sought the return of the children. By the time the original interim care order was sought, they no longer agreed to the children remaining in care.
The mother’s barrister told the court that the Child and Family Agency social work department and the expert who conducted the parenting capacity assessment did not understand Traveller culture. She said that no allowances were made for this cultural difference, and that there was no understanding with the Traveling community’s mistrust of outsiders and authority figures.
The barrister suggested that these issues around culture and the understandable distrust of outsiders would have contributed to a poor parenting capacity assessment, rather than in fact actual poor parenting capacity. It was noted for the Court that three parenting capacity assessments had been done.
The lead social worker was cross-examined by the father’s lawyer. She accepted that some referrals to the Child and Family Agency (CFA) had been anonymous and had included allegations of slapping, which the father denied. She also accepted that there had been no disclosure of abuse and no disclosures since the children had come into care during the period of her involvement. The social worker accepted that, from her knowledge, the parents had consistently wanted the children returned to them.
The father’s lawyer put to the social worker that there had been historic fears of domestic violence between the parents, but that no current fear of domestic violence had been identified. The social worker accepted this. She also accepted that a doctor who had assessed the father had described his profile as not being one likely to commit domestic violence.
The father’s representative put a detailed history of assessments to the social worker. She accepted that the parents had engaged in an original parenting capacity assessment, an attachment assessment and a later proposed intervention involving video-recorded access sessions, which were to be coded and assessed. She described the latter as “a Marte Meo style of intervention”, involving a three-month assessment plan based partly on video. She accepted there had been delays, including delays around Garda vetting and finding an appropriate person to carry out coding.
There was dispute about the reasons why one assessment did not proceed. The social worker said the parents had consistently indicated they were unable to engage with the assessor. She said they had “somewhat engaged” but then became unhappy with him, saying he was “cheeky and racist” and that they did not wish to continue with him. The father’s representative put to her that the parents had expressed dissatisfaction but that the assessor had then become uncontactable. The social worker accepted there were delays and said there was ultimately acceptance that an alternative approach was needed.
The father’s lawyer suggested that the father had instructed his solicitor to identify alternative professionals to carry out the assessment. The social worker said she could not recall this. She accepted that there had also been a change in GAL. She said the agency decided that rather than obtaining another individual assessment, it would complete the assessment within a broader, global assessment process in order to move matters along.
The court heard that during this period one of the children had been returned to the parents. The social worker accepted that the parents had proposed a tiered return of the children, particularly because of the needs of one child with autism spectrum disorder. She accepted that the parents had engaged with the assessment process and that relevant reports were before the court.
The father’s lawyer raised the parents’ homelessness and asked whether it was fair to say they had engaged with an Outcome Rating Scale (ORS) assessment. The social worker referred to a note which said the parents were not willing to engage with the ORS assessment, but accepted that another quotation from the report indicated they had engaged well. The father’s representative put it to her that the parents had undergone several assessments during a period when they had faced difficulties beyond their control, including homelessness and the sudden death of the father’s brother. The social worker accepted that it was fair to say they had engaged with “a lot of assessments”.
The father’s lawyer challenged the CFA’s position that “all reasonable supports” had been provided, distinguishing between assessments and interventions. The social worker accepted that a number of the processes listed were assessments rather than supports, but said assessments could also function as interventions where professionals entered the home, identified needs and worked to provide supports. She said these were similar to, but more intensive than, family support work.
The father’s lawyer also questioned the social worker about access. She accepted that not all missed access visits could be attributed to the parents and that the children had come into care during the pandemic. She accepted there were periods where the parents attended access regularly. She also accepted that the access table in the report was not complete if access had been weekly.
When it was put to her that the children loved seeing their parents, the social worker did not accept that as a straightforward proposition. She said there were concerns about conversations being had in front of the children. However, she did accept that the father had a “loving bond and connection” with the children.
The father’s lawyer put observations from an access report to the social worker. These included that the parents were consistent in hugging and kissing the child, telling him they missed and loved him, responding positively to him when he was stressed, and respecting his needs when he became overstimulated and wanted to leave the room. The report also recorded that the parents were aware of hazards, such as encouraging a child not to run with a pencil in his hand. The social worker accepted that these were the access supervisor’s observations.
The father’s lwyer put it to the social worker that the parents had insight into the child’s issues and needs. The social worker did not fully accept this. She said access visits were limited in duration and referred to other reports indicating that the parents appeared tired at the end of visits. She said they did not fully understand the child’s needs.
The father’s lawyer then turned to the social worker’s concerns about the parents’ reflective capacity. The social worker said these concerns were longstanding and not shaped only by the assessment reports. She gave as an example a recent access visit in which the parents told the children that the mother was expecting another baby, without appearing to reflect on the possible impact of this information. She said the children tended to internalise their feelings and struggle to verbalise them. Their carer later reported that both girls had been affected by the news.
The father’s lawyer put it to the social worker that, despite the father’s low IQ and cognitive functioning, he believed he could cook for the children, bring them to school and be a good father. The social worker accepted that this was his position but said she remained concerned about his emotional capacity to meet the children’s needs. When it was put to her that the father was not proposing to parent alone but with the support of the mother, she said her impression was that he did a lot of the day-to-day parenting by himself.
The father’s lawyer suggested that the two parents together could meet the children’s needs. The social worker replied: “I don’t agree with that, Judge.” She identified a lack of family support as another concern and said directly that the parents were “unable to properly care for the children”. She did not change her view when it was put to her that the parents were not seeking an immediate return of all three children although accepted that if they were to be returned there would need to be a transition period.
The father’s lawyer put it to her that the family circumstances had changed significantly: the family were no longer homeless, the father was no longer using drugs or alcohol, and he was no longer involved in criminality. The social worker accepted that the father had made some progress but said it was not substantial enough to show that he could care for the children.
Counsel for the GAL asked the social worker about the child with autism spectrum disorder. The social worker confirmed that the child’s needs were so extensive that, if the current placement were not available, he would require a residential unit. She said the placement was meeting his needs and that the same supports could not be replicated if he were returned to the parents’ care. She said the other children were also in excellent placements which were meeting their needs, and that those placements could be long-term.
The social worker accepted that the parents had consistent difficulties with the placements and were unhappy with them. She said the parents would not be able to manage access for more than an hour or an hour and a half because they were already very tired after access.
Returning to examination in chief, the CFA solicitor raised again the ORS issue. The social worker said homelessness was not a bar to engaging with ORS. The CFA solicitor put to social worker that the report also referred to difficulty engaging for “cultural reasons”. She accepted this. The CFA solicitor then took her through correspondence indicating that meetings with ORS had been arranged and cancelled by the parents. The report recorded that, because of long waiting lists, ORS eventually had to deprioritise the case and felt, after two cancelled dates, that the parents were either not interested in or not capable of engaging at that time. The social worker said there was no realistic likelihood of the type of progress, such as unsupervised access, that might justify a future re-referral.
The CFA solicitor then raised observations that the father appeared to believe the child’s autism was caused by not being fed enough by carers. The social worker said this was indicative of his inability to fully grasp or actually understand the nature of the child’s diagnosis. She also confirmed that approximately half of the access visits with the child with autism spectrum disorder had been missed.
The current allocated social worker then gave evidence. She said she had been allocated the case immediately after the previous social worker moved on. She had met the parents and had also met them for urinalysis. She had recently met them to discuss access, including why it had been suspended and when it might resume.
Urinalysis had now started, although the father had difficulty trusting the service proposed by the social work department to carry it out. Both parents were continuing to engage with urinalysis.
The current social worker had met the three children. She said the child with autism spectrum disorder was very happy and had shown her around the house. He was willing to use his communication device, although when the judge asked how he was getting on with it, she said she was worried he used it “too much”. The Court was told he was “doing very well in school”.
The social worker said she had also met the other children. At first they were somewhat anxious, but on later visits they settled and were friendly, engaging and able to answer questions. One child became more comfortable on a second visit, showed the social worker her schoolwork and recognised her. The other child was initially very anxious and unhappy, showing “two very different sides”, but was more settled on the second visit.
The judge asked whether the social worker was satisfied all three children were receiving the supports they needed. She said they were more settled but that work remained ongoing to ensure all resources and supports were in place, including play therapy. She confirmed that she had prepared the report and believed the threshold for a care order was met. She said access could resume, and that sibling access was also being considered.
Counsel for the GAL asked about the GAL’s recommendations. The social worker said there were a “huge number” of recommendations. She agreed play therapy would be helpful for the girls, though a local play therapist had indicated she would not take siblings at that time. She said psychology supports and life story work were being pursued, and arrangements around communion were also being explored.
The father then gave evidence. He told the court he had been present for the previous day of hearing and had listened to the evidence. Asked about his current life, compared to life before his accident, he said: “My life is basically like…my routine, I go for a jog. Go to mass every day. I bring my daughter to school. My life is good. I miss my kids. I love them so much. I just want unification with the kids.”
He said he made dinner, breakfast and lunch for his daughter, brought the child to school, cleaned the house, did the washing and clothes, and did what he could around the home.
Asked about the claim that he did not understand why the children were in care, he said he “did understand”. He outlined for the Court that he knew some of the children had difficulties: one child had autism spectrum disorder, another had cerebral palsy, and he had only recently learned that the third child also had additional needs.
He told the court he understood the needs of the child with autism. He was empathetic and quite emotional in his answers on this: “I do understand his needs. He has autism. I have read up on it.” He told the court that if the child became anxious, he could deal with that. He said he “would do everything for him”, including bringing him for walks, which the father felt helped the child. He said the child did not like being stuck in a room for prolonged periods and needed to be outside. He said that with the same supports the HSE provided to the foster parents, he and the mother could cope.
When asked how he would handle the child if he became dysregulated, the father said he knew how to manage him and that food was central. “He gets hungry. When he has his food in him he’s happy. It’s food that’s the problem.” He said that when the child became upset, he was fine once he got food or went outside. He added: “All autism people…you see your Honour. I’ve done my research, all of them. They love food, your Honour.”
In relation to needs of the child with cerebral palsy, he said, “I bring her to physio. I’d do whatever I had to.”
Asked about access, the father said it was “ok” and that the children were “great”, but said it was ridiculous that he could not play with them. Asked what he would say to the claim that he could not meet their emotional needs, he said he could. He linked this to the family’s background, saying, “Your Honour, like, this is about…like, our Traveller background.” He outlined for the court that in their community, there was a broad communal manner of raising children and dealing with difficulties they might have.
Counsel for the father asked him how he would respond if one the children was being made fun of in school. The father said he would thank the child for telling him, reassure them, then contact the school and ask the principal to deal with the bullying. If the children said they felt bad, he said he would tell them there was no need to feel bad, that they were strong, and that he had spoken to the principal.
Asked about the Social Work Department’s concern that he and the mother might become overwhelmed, the father said he was already overwhelmed by the current situation. He said he had to travel a long way to see his children, spending “all day on trains”. Somewhat distressed he outlined the toll of the significant travel required for the court, saying bluntly “It’s awful, your Honour”.
He suggested that Tusla had “put him on medication”, which he was unhappy with but was taking in order to “get the kids back”. He concluded by outlining for the court his view: that the CFA claimed that he could not care for the children because he would get overwhelmed, when in reality he felt it was the treatment of the family by the CFA that was causing stress and upset. He told the court: “Last six years, they have been terrible – awful, your Honour. We just want them back.”
The judge thanked the father for his evidence.
At the time of writing, a written judgment was awaited.