Volume Two of 2014 includes long reports from seven lengthy and complex cases, all involving allegations or suspicions of child sex abuse which either prompted the proceedings or emerged during them. Unsurprisingly, they were usually strongly contested and they took a considerable amount of time. Three of the cases were heard in Dublin and four were heard in rural towns.
It must be stressed that such cases, and generally cases involving allegations of child sex abuse, make up only a very small minority of all child care cases. We have published reports of 136 cases in earlier volumes and very few of them have featured any allegation of sex abuse. The most common reason for Care Orders being sought is neglect, often due to parental drug or alcohol abuse or mental illness, and such orders are sometimes of a temporary nature.
Along with these lengthy cases we are also publishing in Volume Two reports of more routine cases, including reviews of orders already in place, which are more typical of child care proceedings around the country. The other cases also include examinations of after-care plans and applications for Interim Care Orders. One of these applications concerned children from a Traveller family who had been severely harassed in the flat block where they lived, so that the children were unable to go to school.
We are publishing the lengthy and complex cases together because they were all heard within the last six to eight months, sometimes spread over all of that time with numerous adjournments; and because together they illustrate a number of important issues that arise in such difficult cases. The issues to be decided are very grave, and the decisions taken will have serious and life-long implications for the children involved, their parents and wider families.
The accounts of these proceedings extend to many thousands of words, which some readers may find daunting. However, in these long reports we publish a brief summary of the main facts and the decision at the beginning.
The cases also demonstrate some of the difficulties encountered by the courts in hearing such cases, especially outside of Dublin, where they must jostle for court time with other court business, including private family law proceedings and other child welfare matters. For example, one application in a rural town for an Interim Care Order was listed for hearing on over 20 separate days spread over approximately six months, and for some of those days was not heard at all; for others only a fragment of it was heard, as it was frequently listed for days when there were a lot of other cases before the court, including bail applications.
The nature of this case changed in the course of the hearings, as evidence of sexualised behaviour on the part of the one of the children emerged while he was in care. In this case a baby was born to the parents while the proceedings were going on and was immediately taken into care.
Most of the other cases took a very long time (typically about 20 days, which outside of Dublin are split up over a number of months) because of the complexity of the issues and, sometimes, the lack of or delay in producing necessary assessments or documents which were required.
A number of themes and issues common to most of these cases emerge:
1. In many parts of the country it is difficult, if not impossible, to access specialist assessments of children suspected of being the victims of child sex abuse. In one case it was stated in court that if the children were in the east of the country they would have been assessed by child sex abuse professionals, which they had not been in this case. In this case findings of sexual abuse of some of the children were made by social workers who had had relatively brief placements in specialist child sex abuse clinics. In a case in a different rural town in another part of the country the children were still on a waiting list for assessment by St Clare’s specialist sex abuse unit nine months after the first incidents of sexualised behaviour were noted.
2. The complexities surrounding assessing the sexual abuse of children is a notoriously difficult area and there may be different levels of knowledge and understanding among some social workers, guardians ad litem and members of the judiciary. This may lead to inconsistencies in practice and in case outcomes in different parts of the country. These complexities need to be more fully explored and explained.
The child sex abuse charity CARI and others state that sometimes sexual abuse may never be independently proved and warn against jumping to conclusions. In two of the cases the sexualised behaviour of some of the children was at the centre of the cases. In one of them the CFA, the GAL and the judge all expressed the view that this behaviour strongly suggested the children had been sexually abused, and Interim Care Orders were granted, pending further assessments by St Clare’s specialist child sex abuse unit. In another case a witness who was a trained social worker and psychotherapist gave evidence that sexualised behaviour can occur for multiple reasons and is not necessarily a result of sexual abuse. She said it could also be self-soothing and a response to unmet emotional needs.
3. It can also be difficult to access services which can carry out risk assessments of the parents. The National Office for the Prevention of Domestic, Sexual and Gender-based Violence, COSC, will carry out such assessments, but some people will not engage with it on the basis that it is a service for those who carry out domestic or sexual violence, and that such engagement requires an admission of being a perpetrator.
4. Some parents may also require a cognitive assessment which may be necessary to establish how much they understand of the Child and Family Agency’s concerns in the first place, and the measures they need to take to address them, and also whether they understand the legal proceedings and can adequately instruct their own legal representatives. Such cognitive assessments are not always available.
5. There does not appear to a uniform approach to the place of assessments in the preparation of a case for care order applications. For example, in one case in a rural town the social worker said that they would assess the children’s needs only when they had obtained the full Care Orders sought and were sure of stability for the children. The judge in this case was highly critical of the fact that very disturbed children had not been assessed and so were not receiving any therapy.
6. Another issue that led to delays in proceedings and questioning of evidence was the lack of, or delay in production of, documentation in the possession of the CFA. For example, it proved very difficult for the CFA witnesses in one case to locate notes taken of interviews between the social worker and children who had made disclosures of having been abused.
7. There is little clarity about the intersection between child protection proceedings and Garda investigations into abuse. In one case the Gardai claimed “public interest privilege” in not disclosing DVDs where allegations had been made that children had been abused, claiming that this could compromise an on-going criminal investigation. The court ordered the production of the material.
There is also a possible conflict between the need to have clear evidence on which to base an order and the therapeutic needs of the children. In the same case the GAL for some of the children argued that disclosing the DVDs could compromise the therapy the children were receiving, while the GAL for the alleged victims supported the disclosure of the DVDs.
Meanwhile in a separate case St Louisa’s specialist child sex abuse unit had found a girl who was engaged in severe self-harming behaviour had been a victim of serious sexual abuse, including rape, but the alleged perpetrator was acquitted by a jury in the criminal trial.
8. All this is linked to the issue of hearsay evidence from children, especially if they disclose abuse to third parties, and the need to conduct proceedings in a way that is fair to all parties, including the parents.
In one case the judge summoned the foster carers, who had witnessed sexualised behaviour which was reported to the court, to come to court to give evidence of what they had seen. In a case in another part of the country the CFA vigorously opposed a proposal to call the foster carers to whom disclosures had been made, and the judge refused to do so. Eventually a UK-based specialist in assessing children’s disclosures gave evidence of their credibility. Lawyers representing parents are likely to press for children who make such allegations to be interviewed and even asked to give evidence, especially if they are close to adulthood. While this may be normal procedure in criminal proceedings, it is not appropriate in child care proceedings, and is unlikely to be successful.
9. In such fraught cases, which can continue over many months, access between parents and children becomes very difficult. Where there are allegations of abuse access will be supervised, sometimes by a number of people, and the behaviour of the parents during the supervised access becomes part of the case being presented by the CFA. Sometimes access is moved, restricted or denied to one or both parents as a result of something that is said during access or that otherwise arises.
All of this is unlikely to promote spontaneous and relaxed behaviour on the part of the parents. Any lapses on their part can lead to access being suspended, further intensifying the adversarial nature of the proceedings and prolonging the conflict between the parents and the CFA.
It is hoped that the publication of the details of these long and difficult cases will allow greater public debate on these very complex issues, which are not amenable to any quick fix solutions.