A judge in a provincial court granted a three-year care order for a child (Child A) with very complex special needs, following three separate days hearing.
The Child and Family Agency (CFA) had initially sought a one-month extension of an interim care order as they were concerned that the foster carers, A’s grandparents, were not approved by the fostering committee. The fostering regulations stated that the grandmother would need to prove five years of sobriety before she could be assessed.
All the parties sought discretion due to the complexity of A’s needs and the fact that she was thriving in her grandparents’ care. A representative of the fostering committee, who had been invited to attend court to explain the regulations, did not attend as she was on leave. When the case came back for review, the fostering committee was less rigid in its view and the judge made a three-year care order for A to remain with her grandparents.
Day one
The CFA lawyer informed the court that it was making an application for an extension of A’s interim care order for a period of one month. He explained that A had been in the care of her maternal grandparents for the previous four years. A’s mother had experienced suicidal ideation and there were concerns around the mother’s substance abuse and lack of appropriate supervision. The child’s father was in prison. The difficulty posed in this case was due to the fact that the grandparents were not approved.
The social worker stated that A’s grandmother had addiction concerns in the past and that this meant the assessment of her as foster carer could not go ahead at the present time. There would need to be a five-year period of sobriety before she could be deemed approved.
The social worker described A as a child with special needs, who had started attendance at a special school where she had settled. She had been under the care of the community disability network team and would now be transferred to the special school’s disability team. There were good supports in place for A and her school principal had attended at the recent child-in-care review meeting.
The CFA lawyer pointed out that that the conflict was between the fact that on the one hand, A’s placement was stable but on the other hand, the placement was unapproved.
Social worker: “Tusla has difficulty standing over an unapproved placement.”
The CFA lawyer advised the court that the grandparents had lodged an application for guardianship of A. However, he stressed that the grandparents’ concern in this regard was that they wanted the CFA to continue to be involved in order to facilitate A in getting access to necessary services. They worried that discharging A from fostering care into guardianship would have the effect of reducing the services.
The social worker said they wanted A to remain in the care of her grandparents but stated that continuing with an unapproved placement would have long-term consequences. The CFA lawyer said the threshold for extending the order was met but that the CFA had to be cognisant of the fostering regulations in this matter.
The lawyer for A’s father asked if A could continue to be allocated a social worker if there was no care order in place and the social worker replied that the CFA would close the case after six months if there was no court order in place. The mother’s lawyer said that the mother had been present in court earlier in the day but had left to attend a hospital appointment. She informed the court that the mother had consented to a three-year care order.
The lawyer for the guardian ad litem (GAL) told the judge that that the GAL advocated that A, a non-verbal child with very specific special needs, could not be returned to the care of her mother and that she should not be moved from the care of her grandparents. While A was non-verbal, she had developed a system of communication with her grandparents which was vital.
The GAL’s lawyer said there was caselaw, which she had opened to the court in the past, which held that the court had the power to be creative in making directions. She suggested that the interim court order might be extended until such time as the grandmother had completed her assessment. She also asked the court if it would be helpful to call a representative from the fostering committee to come before the court to explain its position. She said it was unfair on the social worker to be answering on the issue as she had no control over the fostering regulations.
The GAL told the court that if the grandparents obtained guardianship of A and supports were withdrawn, they would not be able to cope with A’s needs. She stressed that this case should not just be dealt with as a “paper case” but rather as a unique, individual case.
CFA lawyer: “Tusla do not have the luxury to depart from those regulations.”
The CFA lawyer suggested that it might be possible to apply for a supervision order should the grandparents be successful in the application for guardianship. This would ensure that the CFA would have oversight for twelve-month period. The GAL said that the grandparents would still need to be approved. The father’s lawyer remarked that the necessity for a five-year period of sobriety was different to the twelve-month period required for parents. The GAL stressed that the grandmother had done everything that was asked of her and that the placement for A was excellent. She asked why there had to be so much stress created.
GAL: “The grandparents have put their lives on hold to make sure [A] has the best”.
The GAL’s lawyer suggested that within the fostering regulations there was room to manoeuvre and use discretion. The CFA lawyer said that the court could not go beyond the one-month extension, as applied for by the CFA, and was confined by the application to this length of extension. The lawyers for both the father and the mother expressed surprise at this and said that the court had wide discretion. The judge said there were some matters to consider and that she would come back to the case after one hour.
When the case resumed, the CFA lawyer referred the judge to section 18 (2) of the Child Care Act 1991 and said the court could either refuse to grant the extension of the interim care order or could grant it for the one month as in the application but not for a longer period. The judge said this would make the court redundant and without discretion. The lawyers for A’s parents both stated that they believed the court had a wide discretion and was not constrained in any way by the length of time in the CFA’s application.
The judge decided that written submissions should be made. She extended the interim care order for one week and said she intended to give her decision on proportionality and threshold on the next date.
Day two
When the matter returned before the provincial court on the next date, the CFA lawyer stated that the judge did have the power to grant a care order longer than what was sought by the CFA. He said that his client was in a difficult position, as it was clear that A was well settled with her grandparents. However, the CFA was unable support a long-term care order in A’s current placement. He said that the placement was unlikely to pass a full foster care assessment, which they were obliged to follow by law. Accordingly, the CFA sought to extend the care order for one month to facilitate a representative of the foster care committee attending to explain the regulation of foster care assessments.
The lawyer for A’s mother stated that her client previously supported a longer-term care order for a period of two to three years. However, her client’s instructions had now changed. A’s mother would consent to the application being made by the CFA for one-month extension of the current order and agree to a long-term supervision order.
The lawyer for A’s father conceded that section 18 of the Childcare Act 1991 empowered the court to make an order for as long as the judge deemed appropriate.
The lawyer for the GAL stated that she felt that a supervision order was not adequate to address the issues in the case and the position of the parents had not changed. She said that if the order were to be extended, a member of the foster care committee should be required to attend on the next date to explain the difficulties in assessing the preferred placement of A with her grandparents. The GAL’s lawyer further highlighted that discretion had been exercised previously in other cases regarding the regulation of foster care placements.
In handing down her decision, the judge noted the contents of a clinical paediatric report, which outlined how A was non-verbal, had no engagement with peers, possessed a diagnosis of autism, a mild to moderate general learning disability, along with significant difficulty with psychological functioning. She stated that A required multi-disciplinary therapeutic input and a special school placement.
The judge said that due to the nature of A’s needs, her placement elsewhere would be very likely to break down, as is regularly observed in other cases where residential care would otherwise be required.
The judge noted that A was thriving in her current environment and that her best interests were served by remaining with her grandparents. She noted that the GAL considered a new foster placement would be high risk as A had complex needs, and there was a significant risk she would be lost within the system. In addition, the judge stated that if guardianship was awarded to A’s grandparents, there was a possibility the CFA would withdraw and close A’s case. A’s grandparents would then struggle to meet her needs.
Accordingly, the judge felt that the threshold to grant a care order had been met in this case. The judge stated that she had considered A’s age, her maturity, characteristics, as well as the importance of maintaining relationships with other people involved in her upbringing and her best interests, which had been outlined in the GAL’s report. The judge granted a three-year care order, which was to be reviewed in one month.
The judge directed that the representatives of the foster care committee should attend on that date, and further, under section 47 of the Childcare Act 1991, that A’s placement remain the same, or as varied by court order. It was indicated that the CFA could make an application should there be an issue in relation to the placement.
The GAL’s lawyer sought that the assessment policy of the foster care committee be furnished to all parties in advance of the review date. She stated that no party was bound by the policy. The CFA lawyer indicated that there was no difficulty in complying with this request. The judge adjourned the grandparents’ application for guardianship to the review date.
Day three
When the case came back before the court a month later for review, a representative from the fostering committee was expected to attend and outline the fostering regulations. However, the representative from the fostering committee sent apologies to the court as she was unable to attend due to being on leave.
The CFA lawyer told the judge that A’s school transport had been organised and that it planned to appoint a link worker for her. The mother was not present in court due to a medical appointment but was represented by her lawyer, who said she was happy with the recent progress made in A’s care plan. The father’s lawyer said she had been unable to obtain updated instructions from him.
The GAL’s lawyer informed the judge that she was happy to report that the fostering committee was considering a review of their position in relation to the discretion about the suitability of the grandparents. She added that the GAL was very satisfied with the great progress of A’s therapies since the previous month.
The judge stated that considerable work had been carried out recently behind the scenes in this case. She was satisfied that things were progressing in the right direction. She said that A was currently in the best placement and a three-year care was in place for her in her grandparents’ care. A’s grandmother had not come to the attention of the social work department recently. Taking all matters into consideration, there was now no necessity for the fostering representative to come to court, unless they deemed A’s placement unsuitable in the future.
The judge listed the case for review on a date three months later.