In Dublin District Court the solicitor for the Child and Family Agency (CFA) sought an interim care order in respect of one new born child (C). Following a discussion of the admission of statements from older children in relation to allegations of domestic violence against the father, the judge adjourned the application.
The solicitor said the infant was born premature and was currently in hospital. He was due to be discharged in the forthcoming days.
The CFA solicitor said the application was being brought on the basis of “significant concerns of the risk of violence to the infant.” She said there were a number of historical assault allegations against the father, and they had been informed that “the father is a suspect in a murder investigation in relation to the death of his previous partner.” The solicitor said there was also an application to have certain statements introduced in evidence which were vital for the interim care order.
The mother’s solicitor said it was important to note that there were “absolutely no allegations or child protection concerns in respect of the mother.” She said the risk of domestic violence solely related to the father. She said she had been instructed to put a proposal to the CFA in which the mother was willing to agree to a safety plan and supervision order, but was “vigorously contesting” any application for an interim care order.
Mother’s solicitor: “We feel a safety plan and supervision order could be made in this case. [The mother] applied for a safety order against the father yesterday. She says as part of the safety plan, she will undertake to have no contact with [the father], and will live with her mother.”
She said the CFA had refused the proposal. She told the court that European law determined that there was a “very high threshold”, which the CFA was required to meet, in circumstances where a mother was breast-feeding. She said the mother was currently breast-feeding and if the infant was removed from her care, this would significantly affect “the bond between mother and child.”
The father’s barrister said her client was in agreement with the proposal put forward by the mother. She said he was willing to comply with the safety plan and understood that any breach could lead to imprisonment. She said: “He will comply with all aspects of the safety order too. He will participate in the safety plan and will agree to have supervised access.”
The CFA solicitor said her client had considered the proposals put forward, but was not willing to agree to them. She said: “The risk of domestic violence is significant. We have grave concerns as there has been a history of breaches of previous protection orders.”
Judge: “Well then it seems the matter will have to proceed.”
Application to admit children’s hearsay evidence
The CFA solicitor proposed to deal with the application to have the statements admitted in evidence first.
Mother’s solicitor: “One thing occurs to me judge, I wonder are the children aware these statements are being used, or their legal guardians, are they aware?”
Father’s barrister: “I agree, Judge, we have serious concerns about the nature of these statements. We need to know the context of the discussions and what questions were put to the children, we have no context, Judge, at all.”
The judge asked if the statements were necessary in respect of the threshold.
CFA solicitor: “Yes, I say that they are. The concerns started when it became apparent that the death of the father’s previous partner is now being treated as a murder investigation and the father is a suspect in that. The statements of the children are important, they show the history of his relationship with his previous partner.”
The solicitor said this was “all part of the ongoing pattern of domestic violence” and was extremely relevant to the application.
The judge suggested that in the circumstances it might be best to adjourn the matter to allow the relevant notices to be served on the mother and father, so as to ensure fair procedures were being followed. He commented: “This is one of the most serious cases to come before the court. This is a very serious matter.”
When the case resumed the following day the CFA called a social worker who was allocated to those children at the time of the alleged statements and was employed by the CFA in 2017, but she was no longer in that role.
She said that she had carried out two interviews with the two children following a referral from An Garda Siochána in July 2017. A young woman had been harmed and had passed away and the two children were present at the time she died. The gardaí had asked the social workers to go and interview the children.
The social worker said that she had attended at the aunt’s home where the children had been residing to interview them.
CFA solicitor: “What did the children say to you on that day?” The witness said that she had recorded everything verbatim and they initially spoke to [A], the elder of the two children.
Witness: “I asked her if she had ever spoken to a social worker before and she said that she hadn’t. I told her in an age-appropriate manner our role. I asked her if she knew why we were there and she asked if it was because of her mum. [A] said that ‘my dad hurted my mam. Dad cam at my mum with a knife’.”
At that point the barrister for the father interrupted and told the court that she thought the witness would be questioned first about the admissibility of the section 23 statements.
Judge: “Certainly the Act requires the court to know that the children are unable to give evidence.”
The barrister said that the witness was required to give evidence about the age of the children and their ability to give evidence and whether it was not in the welfare of the children to give evidence. She said that the giving of the evidence first was not in the interest of justice as she was “challenging prima facie the admissibility of the evidence at all”.
Mother’s solicitor: “The court has to hear evidence from the social worker making that professional opinion before the evidence is given. It could be prejudicial as once heard it can’t be unheard.”
The first social worker stepped down from the witness box and the allocated social worker to the newborn baby was called to give evidence. She was asked whether or not it was in the best interest or welfare of the two children A and B to come to court to give evidence.
She said that the children were separate to the application before the court. She did not have their exact date of births but she gave the approximate ages she believed the children to be, both of primary school age. She said that in her opinion it was not in their best interest to attend court as “based on a conversation with the maternal aunt who has full custody of the children” the aunt was of the view that the children would be “quite scared to attend court” and it would cause them emotional distress.
The social worker said that it was her understanding that the two children did not have access with their father. Since 2017 they had been residing with their maternal grandmother and maternal aunt and had not resided with their father at any stage. She said that she was satisfied that it was not in the children’s best interest or welfare to give evidence to the court.
When asked by the father’s barrister the social worker said that she had not met the children and her assessment was by way of review of the files on the CFA database and conversations with the father.
Father’s barrister: “Did you speak to them on the phone?”
Social worker: “No, they are not aware of the proceedings.”
Father’s barrister: “How did you form the opinion if you have not spoken to the children?”
The social worker said that to protect the children she had spoken to the adults caring for them. She said that the children were not aware of the proceedings and her understanding was that they were not aware that they had a half-brother. She said that due to the “seriousness of what is happening today in court it is not in the best interests of the children to be notified of that”. She said that the aunt had told her how the children were presenting and that they were fearful of their father.
Social worker: “My view is that it is not in their best interest to give evidence in a court room where their father is.”
Father’s barrister: “Have you met with the maternal aunt?”
Social worker: “No, just a phone conversation.”
Father’s barrister: “Have you had many phone conversations?”
Social worker: “One conversation.”
Father’s barrister: “When was that?”
Social worker: “Yesterday.”
Father’s barrister: “So you formed your opinion yesterday?”
The social worker said that she was not aware if the children had been interviewed by the gardai and she understood that it was an ongoing investigation. She said that she was not in a position to answer if the gardai were envisaging that the children were to give evidence.
The barrister asked the ages of the children at the time the statements were made in 2017 over three and a half years ago and the social worker said that she did not have their exact dates of birth. The social worker said that she was not employed by the CFA n 2017 but had reviewed the files and said “we would always interview in a child-friendly manner”.
Father’s barrister: “Was she a specially trained child interviewer?”
Social worker: “I can only answer for myself.”
Father’s barrister: “These interviews could prejudice my client in these proceedings or wider proceedings. Were they conducted prior to or after the garda interviews of the children?”
Social worker: “My understanding was that it was at the direction from gardai to attend to interview the children. I can’t give evidence of who did what first.”
Father’s barrister: “The aunt spoken to is the sister of the deceased. It is fair to say she wouldn’t feel terribly enamoured with [the father]? She wouldn’t think highly of [the father]?”
Social worker: “It wouldn’t be a matter for me to comment on.”
The barrister said that the statements should not be admitted and as the aunt was present for the interviews the children could have been influenced due to their age. The social worker said that she had not seen any garda interview statements or the garda file. The barrister said that the CFA were seeking to admit a typed-up document and not the actual contemporaneous notes of the interview and the social worker confirmed that she had not seen the contemporaneous notes but had reviewed the electronic file.
The barrister for the father said that the father agreed that it would not be fair to have the children come to court but she asked if the social worker had discussed the children giving evidence by other means such as by way of video link. The social worker said that she had not considered that in her assessment. The judge asked if the father was of the view that the children should give evidence by way of video link and the barrister confirmed that he was not of that view.
The barrister for the father told the court that there was an issue that there were no contemporaneous notes available, the statements were made over three years ago, her client was not aware of or had not seen any book of evidence in any criminal trial if charges are to be brought. She said that as a result the father was hampered in ability to cross-examine as the children were not available for cross examination and her client had not seen any full book of evidence. The barrister said that she would be hampered if the statements were deemed admissible without the full context as there may be other statements which contradict the statements to be admitted. The barrister emphasised that the investigation was still ongoing and no charges had been brought.
The solicitor for the mother said that she had a limited role in relation to the admissibility issue as “she had no knowledge of these issues prior to her relationship with [the father]”.
The social worker who had been allocated to the two children was called back to give evidence about the statements. She said that Child A had spoken to the team leader and had said “dad hurted my mam” and that he “came at mum with a knife”. She told the court that the child had described it as a “big sharp knife” that was orange and black. The social worker said that the child told them that she was in her bunk bed at the time and the door was open and that she could hear her dad “say bold words even fuck off”.
When asked if it was the first time she had seen the fighting the child had said that she had heard them shouting and hitting each other and she saw her father push her mother down the stairs. The social worker said that the child knew her mother was dead and she said she understood that she would “never see her again” and that she “says prayers for her at night”.
The child had said that she did not like school and it was boring. When asked about what was the best thing about school she had responded “her credit union account”.
When asked about what she thought about her father she had said: “’I don’t really like him’, [because of] what he did to her mum”. The child had said that he had hit her hard on her leg with an open palm but that “Dad didn’t have any belts”, when asked. The child had said that she didn’t know why he hit her “as not when being bold”. When the child was asked when was the last time she felt scared she answered that it was when her father hit her mother to the ground and was punching and kicking her mother.
The social worker was not able to answer whether the team leader was a qualified child interviewer as she was “not aware of his skills”. She said that the younger child, B, “didn’t want to speak with us and was only briefly in the room.”
The social worker gave evidence in respect of a second interview and she said that B was reluctant to speak as he was “distracted by the TV and Playstation”. She said that A had said that she did not like access with her father and B said he didn’t like his father and they had stated that their father had killed their mother. The social worker said that at the end of the interview they had “encouraged them to get ice creams” from the ice cream van outside. She said that B was “quite distracted” and she “wanted to reflect that accurately” and that “he was quite little at the time.”
In response to the father’s barrister the social worker said that she was not a specially trained child interviewer but had child protection skills for interviewing children. The social worker said that she did not have a copy of the contemporaneous notes as at the time they were typed up and signed off and subsequently shredded.
Judge: “Are these transcriptions of contemporaneous notes? Can you recall for exactness.”
Social worker: “No, as it was three and a half years ago.”
The social worker said that she could not say on oath that everything that was said was written down and that what the children said are in direct quotes. The social worker said that she did not conduct an investigation about the allegations of abuse after the interview. She had spoken to the father about access and custody but said that she had not provided the document recording the alleged statements to the father and had also not sent it to the gardai.
The barrister asked the witness about some inconsistencies in the statements in the documents and also in respect of some leading questions such as asking if the father had ever hit the child with a belt. The social worker was also asked about the opinion of a specialist that it was a self-inflicted wound and whether she had conducted a credibility assessment of what the child had said. The social worker also said that she was not familiar with the deceased and it was the first time she had engaged with the family.
Father’s barrister: “She looked to her aunt for permission to give some answers?”
Social worker: “She was looking for permission to say fuck off as a bold word.”
The barrister asked about the children getting ice cream after speaking to the social worker and she answered that “no, it was a hot day and it wasn’t a reward for speaking to me, he always had ice cream on a Friday”. The barrister also commented that the document did not contain that many direct quotes from B and the social worker said that after his older sister A had said that her dad stabbed her mum B had parroted that dad was mean and stabbed his mum.
The barrister questioned if a full investigation was carried out by the social work department after the allegations of abuse against an adult, as they are entitled to fair procedures. The barrister questioned why, even though there was no investigation and the social worker was not aware if there were any further statements, the social worker still thought that the statements should be relied upon and it was not in the children’s best interests to be heard. The barrister said that if the statements were to be given any weight or to be admissible the father should have been given an opportunity at the time to reply to them.
First Garda witness
The next witness was a garda witness who first became aware of the respondent mother and father in September 2020 following the allegation of an assault. The garda said that at the time he was in the process of conduction an investigation of the death of a female in 2017 who was the father’s previous partner. He said that the father had been questioned in respect of that incident in October 2020 and a file was sent to the Director of Public Prosecutions in January 2021. He described it as a complex file with a large number of volumes that would take some time to consider. The Garda said that he only became involved in that investigation in 2019 and had no involvement prior to that.
The garda said that he became aware of the alleged assault in September 2020 in the preparation of interviewing the father, as part of the investigation was to look at his relationships prior to and subsequent to his relationship with the deceased. The garda said that he became aware that the mother was pregnant at the time and he saw it fit to notify the CFA. The witness said that he attended a child protection conference by telephone in February 2021 and he was asked what score he would give in respect of the level of risk.
Garda: “Definitely about one or two out of ten, so a high concern.”
The solicitor for the mother asked that garda as to whether he had assessed ways of mitigating the risk and he agreed that a possible safety factor of the mother residing in the grandmother’s home would help relieve the risk. The garda also agreed that a protection order would alleviate the risk but he believed there to be proceedings in being in respect of an alleged breach of a previous order. The solicitor also told the garda that there was an application for a safety order returnable for July.
Mother’s solicitor: “What else would you like to see to alleviate the risk further?”
Garda: “Certainly a check in with Tusla.”
Mother’s solicitor: “If there was agreement to a supervision order, to attend at any stage?”
Garda: “Yeah, that is what I was getting at.”
The garda said that some of those measure would alleviate some of the risk and moved the score up to “maybe three or four”. The garda agreed that it was a case where the mother was “very much a victim”.
The barrister for the father told the garda that the father was supportive of the suggested steps and was in a position to offer an undertaking to engage fully with any supervision order. The garda said that he had “some concern with regard to what I know from his past relationships”.
Father’s barrister: “It is for the CFA to operate in a proportionate and fair manner. It is a draconian request to ask a court to take a seventeen-day old baby into care because of concerns of the father?”
Garda: “I accept that.”
The garda confirmed that there was currently an investigation only and no charges had been brought in respect of the deceased and that the father had no convictions of causing harm to any person on the PULSE record.
The CFA solicitor asked the Garda if a risk score of three or four was still a significant risk. She said that an interim care order for a short period of time would give an opportunity to demonstrate that the parents would abide by the undertakings offered to stay away from each other and would follow through on their commitments. The garda said that would “certainly show a clear intent”.
Second Garda witness
The CFA called a second garda witness and he gave evidence that following a 999 call in September he met the mother whom he described as in a “panicked state”. The garda said that the mother had stated that her partner had physically punched her with a closed right fist on her left jaw. He said that he had observed a superficial cut to her lip with some dried blood. The garda told the court that the mother had reported that her partner had accused her of cheating with an employee of the hostel in which she was residing. He said that “she was in a very anxious state”. As he was speaking to the mother the father had appeared and had shouted over “what lies are you telling now” in an aggressive manner and then he left the vicinity. The garda said that the mother had mentioned that she was pregnant at the time and she was brought to the maternity hospital.
The garda agreed with the mother’s solicitor that that she had alerted the gardai and had accompanied the gardai away from the situation. He confirmed that the mother had not tried to refuse to go with them and was “fully complaint and entirely appropriate”. The garda confirmed to the father’s barrister that he had not observed the alleged incident and was not the investigating garda.
Third Garda witness
A third garda witness was called on behalf of the CFA, who was the investigating garda in respect of the alleged assault as it had occurred in his station area. He gave evidence that the mother had not wished to make a statement in respect of the assault and the father was arrested and questioned. He said he first spoke to the mother two months after the alleged incident and he confirmed that the father had not been charged but a file had been submitted to the Director of Public Prosecutions.
The garda said that he was also investigating another matter in respect of a complaint made by a taxi driver in respect of the father. The taxi driver had had dealings with the mother as he had brought her to an appointment in the hospital and he had left a missed call and a voice message on her phone that he was about to pick her up. The complaint was in relations to threats allegedly made by the father to cause serious harm to the taxi driver.
The father was subsequently arrested and he made admissions that the made the phone call from his phone to the taxi driver but no admissions had been made in respect of the content. The garda said that the father gave the explanation that the phone call was to “tell him to stay away from his girlfriend” and the file was going in to the DPP along with the file relating to the alleged assault against the mother.
The garda gave evidence that at the time he first spoke to the mother is respect of the assault allegation she was staying in a women’s refuge and she had not wished to make a complaint in respect of the assault. The garda said he asked her to think about it and left his number with her and said he would contact her. He said that he sent her a message to contact him and subsequently received a number of messages and missed calls including missed calls from the father asking who it was. The garda said that he called her back to explain who it was and why he was calling in relation to the allegation and whether she wanted to make a statement.
Garda: “On the phone she wasn’t answering me immediately. There was always a pause as if someone was prompting her and telling her what to say.”
The garda said that after hearing the 999 call, the fact the mother was not wanting to make a statement did give him some concern as she had “seemed genuinely in fear and distressed” and the call was approximately four and a half minutes. He said that he had concern if she was not willing to make a statement that “somebody was putting pressure on her not to make a statement”.
Mother’s solicitor: “From your experience of domestic violence cases there is often a reluctance of victim to make a statement against a former partner?”
Garda: “I don’t specialise in domestic violence but there can be a reluctance and I would agree with that.”
Mother’s solicitor: “Do you undergo domestic violence training to engage victims of domestic violence?”
Garda: “We don’t do a course in domestic violence. Over the years [there was] some specific training with victims of domestic violence.”
The garda was unable to recall how recently and was not aware of the last time he had had such training.
Mother’s solicitor: “[is it] unusual for an investigating member to text message rather than telephone to ensure the woman is in a safe place before contacting them? “
Garda: “I had given her my number to save on her phone so I didn’t expect her not to know who it was from.”
As to whether a text message or call was more appropriate the garda said that there was a protection order so he had “presumed that he and she were abiding by it”. The garda said that he had had no recent dealings with the mother and the father and he was not aware that they were no longer in a relationship.
The father’s barrister asked the garda if he accepted that taking a child from hospital into cared was a “serious draconian step” and the garda accepted that “it is a serious step”. The garda accepted that there was only an investigation with no charges in being and that the father remained innocent until proven guilty and that he had no previous convictions of causing harm to any person.
Fourth Garda witness
A fourth garda witness gave evidence that he came to know the mother in respect of a domestic violence breach of a protection order in October 2020 by the mother’s previous ex-partner. He said that at the time the mother was in a women’s refuge. The garda said that the mother had applied for a protection order against the father while in the women’s refuge and the garda had served it for her on the father. On the return date in court neither the mother nor the father were present and the garda had outlined his concerns and asked the court to adjourn the matter to a later date. The mother wrote a letter to the court seeking to have the protection order withdrawn and it had arrived six days after the initial order was granted in November 2020.
The garda said that if he had not been in court on the return date the protection order would have ceased on that date. He told the court that he was also investigating a breach of the protection order by the father in November 2020. The mother made a statement of withdrawal the following day not to have any prosecution proceed.
The mother’s solicitor told the garda that she was instructed that the mother had not attended court as she had just delivered her baby and was unable to attend. The garda accepted that the mother was a victim of domestic violence and that “sometimes it can be difficult” to give statements for matters perpetrated against her. The garda said that he was not aware of any steps taken by the mother to end the relationship with the father. The solicitor asked if he was aware that a fresh application had issued for a safety order and whether it was an application he would support. The garda had agreed that it was a positive step and it was “absolutely” an application that he would support.
The father’s barrister for the father emphasised that the protection order was made ex parte and a full hearing was to ensure that both parties would be heard. The garda said that he was not aware of any previous convictions of the father causing harm to other people.
The judge asked if a safety order was made if it was only effective if the person holding the safety order made a complaint. The garda said “absolutely, only a piece of paper”.
Medical social worker
The next witness was the medical social worker from the maternity hospital. She told the court that the mother was first referred to her when she had presented through the casualty department and she had had “a couple of attendances”. On the first occasion the mother had reported some pains and when she was questioned further she had “spoken about an argument with her boyfriend”. On the second attendance the mother had reported that she had been subjected to verbal and emotional abuse by her boyfriend and she was referred to the social work department and the mother’s third attendance was the first time the social worker had met the mother.
The social worker said that the mother had stated that she was “experiencing abuse from her partner and that “he had been using drugs regularly and when he was under the influence he was abusive towards her”. She said that the mother had mentioned a previous incident where her partner had spat at her and punched her and there were bruises on her arm. The mother had reported that she was pregnant but at that stage the father did not know yet. The mother had said that since he had found out she was pregnant the physical abuse had stopped but there was emotional abuse and he was controlling such as who she was meeting with. The mother had said to her that she had not reported it to the gardai “as she didn’t want to get him in trouble” but she had “spoken to his parents and they were being supportive of her and had spoken to him”.
The social work said that at the time the mother was living in a hostel as she had been asked to leave her home by her father and she had been given a date to leave but she had been unable to find other accommodation so she had presented to a hostel. The reason provided for having to leave her father’s home was that “he didn’t approve of the relationship and wasn’t supportive of the pregnancy at that time.”
The social worker told the court that she had provided the mother with emotional support and had spoken to her about domestic violence and the “power and control wheel as a way of explaining”. She described it as “a visual aid to see if a relationship is abusive versus what an equal relationship should look like”. The social worker said that she had spoken to the mother about the various legal orders that where available to her and she said that she would consider it.
She also said that she had spoken to the mother about the impact of domestic violence on pregnancy or children and that the “baby would be entering an environment where there was domestic violence”. The social worker told the court that the mother was quite unsure of the relationship at that time and she was aware that the father was not supportive of her or the pregnancy and that “his behaviour was not acceptable”.
Social worker: “[The mother] was actively trying to secure her own accommodation and get
herself on the social housing list which she did very effectively. One of her strengths is that she got herself out of homelessness very quickly.”
The social worker said that the mother had some familiarity with protection orders as she had one with her ex-husband because there was abuse in that relationship.
Social worker: “It is not uncommon with women we work with that they can sometimes go from one abusive relationship to another. It can be a concern for vulnerability to those relationships and not being able to recognise the red flags and indicators with the father, having been through it before.”
The social worker said that the mother had attended the emergency department following the alleged assault. Th mother had reported that “they got into an argument and he punched her on the cheek and kicked her on the leg and she had bruising”. The social worker told the court that the mother seemed to be “considering legal protection more seriously this time” and that she was going to end the relationship as she was “not willing to put up with it”.
The mother had told her that the father had threatened a staff member causing her to lose her accommodation in the hostel and she “had to go into a women’s refuge at that point” and she had stayed there for a couple of weeks. The social worker said that the mother had told her that she was back in touch with the father and she had advised her of “being wary and careful”.
The social worker said that she made a referral to the CFA as she “was worried that [the mother] wasn’t actually able to stay away from him”. The social worker said that the mother had rung her very upset as her accommodation “had been sabotaged again” by the father, the confidential location of the refuge was compromised and the staff had felt that it was not safe to keep her there and had moved her to another location.
The social worker said that the mother had left the women’s refuge and her whereabouts were unknown for a period of time during which she had missed one hospital appointment. This was the only missed appointment during her whole pregnancy and otherwise her “attendance was excellent”. The appointment was rescheduled for the following week and the mother had attended the rescheduled appointment.
The mother had confirmed to the social worker that she was back with the father and that she “was working on the relationship”. The social worker said that the mother had told her that “she felt the protection order helped him understand that the behaviour was unacceptable and that they had a good conversation that she wouldn’t tolerate the behaviour”. The mother had “wanted to give the relationship a go” and she had wanted him to be involved with the baby.
The social worker told the court she had spoken to the mother about how to remain safe and to use the protection order if she felt unsafe. She said that she spoke to the mother about how sometimes an abusive relationship can be a cycle where after an incident there could be a “honeymoon stage” but that in her experience it only lasted for a certain amount of time before it can become abusive again and she had encouraged her to keep linking in with the hospital, the social workers in the CFA and the gardai for her own safety. The social worker said that the mother had told her that she had moved in to her own apartment and the father was not living with her but would visit “fairly regularly”, and the mother had said her baby’s safety was her priority and if there were any issues that she would end the relationship.
The social worker told the court that there were more regular meetings as it had got closer to the due date with the gardai in attendance and the mother had stated that there had been no recent incidents. The social worker said that she had advised the mother of the option to have a confidential pregnancy so that she would be anonymous on the system. This meant if the father had turned up they would not give him any information but “she very much wanted the father to be part of the birth”.
The social worker said that the baby had arrived approximately seven or eight weeks early and that “can be an indicator of domestic violence but there can be other reasons of pre-term birth”. The mother’s solicitor objected to that evidence as there was no medical opinion of it before the court. The social worker said that there had been a lot of stress for the mother during her pregnancy and she had described it as a “difficult pregnancy”. The witness said that father was present at the delivery and no issues had been raised by the staff on duty and he was appropriate in the hospital and had been ever since with regular daily visiting.
The social worker said that she met with the mother after the birth and had revisited the issues with her and the mother had acknowledged the concerns and she had understood why a child protection conference was taking place and she was happy to have a safety plan in place. The mother was happy to engage with the plan and do whatever was recommended. The social worker said that she had met with the mother the day before the conference and she had said that she “may have over dramatised the incident” of the assault.
She said that in some cases of domestic violence after time has passed and things are going well “incidents are looked back on with a different perspective and often minimised” and she felt that the mother was doing that in an effort to protect the father. The social worker said that they had talked about the importance of being honest with everyone and up until that the point the mother had “always acknowledged the issues and never denied the issues” and stressed that it would not be tolerated going forward but that there was “sort of a change at that point”.
The child protection conference was attended by the mother, the father and the maternal grandmother, which the social worker described as “quite productive”. The family members came on board and “it was good to hear from them about what they were willing to do in terms of the safety plan”. The social worker said that at the end of the meeting she provided a safety score of three out of ten as at that point the mother was still in the relationship and if the baby was going to be at home with the father around “there was a lot of risk still there”.
The social worker told the court that the baby remained in the Neonatal Intensive Care Unit, the parents had been appropriate and the mother had “been excellent so far” since the baby was born. The mother had been visiting daily and had expressed breast milk and there had been absolutely no issues since the baby was born
CFA solicitor: “In every other respect she is a great mother?”
Social worker: “Absolutely.”
The CFA solicitor said that there was an application for an interim care order for a short period of time to allow certain assessments to take place and she asked the social worker her opinion.
Social worker: “I understand from speaking to the mother and other professionals involved that the situation has changed in the last week or so and different things have been put forward and a plan could work and [the baby] kept safe but I understand the need for further assessment from a Tusla point of view. Up until this point she has not been able to stay away from the relationship. There was a period where they were not together but I believe they were still in contact so this is all very new, that they are not together now. From what we know about domestic violence relationships they are extremely difficult to get out of. I think it is a positive step that they are not together but it may be very difficult for the mother to sustain that so it is hard to know.”
The social worker said that she could see value in the short interim care order to allow the mother to demonstrate the full understating and insight of the risk to her and her baby if she remained in the relationship. The social worker said that it would probably take the mother some time out of the relationship before she could recognise and reflect how it was a risk to her baby and she was “not sure if [she is] at that point yet”.
The mother’s solicitor told the social worker that the mother had indicated she would agree to a supervision order with a clear undertaking to the court that she would live with the maternal grandmother and her partner who lived within two minutes of a garda station and that the protection order would be transferred to that station with an application for a safety order scheduled that week. The mother would give an undertaking not to have contact with the father and she asked the social worker whether the combination of those measures would be supportive and protective.
Social worker: “I think that is an excellent plan and a brilliant starting point and provides more safety than where we were last week. That is a lot for her to have done in the last week and she should be commended for all she has done in preparation of the meeting.
Only in the last week she has taken this action so I understand the Tusla point that there should be a period of time that she can demonstrate that she can commit to these things.”
The family had been asked to come up with a safety plan for the child protection conference and the mother’s solicitor asked if any guidance had been given to the family about what was expected as part of the plan. The social worker said that she had spoken to the mother before the meeting that it potentially might require something such as visiting to supervise every day and supervised access with the father.
The mother’s solicitor asked the social worker a number of questions in relation to the bond between the baby and the mother with breastfeeding and whether a feeding regime had been discussed at the conference. The mother had been expressing milk for the premature baby and had started independent feeding. The solicitor asked how the CFA’s suggestion of access between the mother and baby for three times a week for an hour was in accordance with the national policy for breastfeeding and the best interests of the child from a nutrition perspective. The social worker said that the mother had been coming in to the hospital for a couple of hours to give enough milk supply until the next day. She said that supply was based on demand and if the baby was feeding more that the mother would produce more milk but that if the mother was not with the child it would have a “direct effect on [milk] production”.
The solicitor said that she was aware of the strict legal principles in cases of bonding with newborn babies, asking the social worker if she was satisfied that despite the impact on the bond and feeding, whether removing the baby from the mother for two weeks was appropriate or if a new safety plan could balance the risk. The social worker said that if two weeks was what was needed to achieve that, and then the baby “gets to have a bond without interruption for the rest of his days it would be worth it”.
The solicitor asked if a robust safety plan was not worth a chance rather than a stranger’s foster home. The social worker said that there were “lots of risk going home as well” and it was “absolutely” a balancing exercise. The social worker confirmed that no concerns had been brought to her attention from the maternity hospital and the mother had been “excellent” including with her engagement in the ante natal care with the midwives and doctors.
The social worker asked if there was any concern in respect of post natal depression and whether it had been something considered in separating such a young baby from his mother. The social worker said that she had spoken to the mother about her mental health and “she felt that she was coping as best she could” but that it was not discussed at the child protection conference.
The mother’s solicitor asked the social worker about that recommendation at the end of her report that the baby should be discharged from hospital to a safe environment without domestic violence. The solicitor asked whether the risk was not mitigated if the baby and mother were living with the maternal grandmother who could report any concerns to the gardai and take “steps to ensure the safety of her grandson”, be placed under a supervision order with “any number of professionals coming in”, and an undertaking from the parents that there be no further engagement or they would be reported to the gardai and the CFA. The social worker said that she had not had much contact with the maternal grandmother and she “can’t say for definite she would do that but no evidence to suggest she wouldn’t”. The social worker said that “the worry is [the mother] might be influenced to resume the relationship”.
The solicitor asked about the recommendation in the report to “continue breastmilk” and how could that recommendation be in accordance with alternative care and the “most draconian order taking a newborn baby from his mother”. The social worker said that it would have to be facilitated with contact and for breast milk be supported and she had suggested “blood banks for transporting the breastmilk if needed”. The social worker confirmed that there were no concerns with direct contact between the mother and baby if she was not in the relationship.
She said that no parenting capacity assessment of the mother had been carried out but there were “no concerns about her capacity to meet the child’s basic care needs”. One issue raised was in respect of the mother’s finance as it can be difficult with “reliance on social welfare payments”, and as the baby came two months early “like anybody she might have like to have been a bit more prepared” but there was no concern about that.
The father’s barrister said that he supported the safety plan as outlined by the mother’s solicitors. The social worker confirmed that she had never met the father nor had any conversations with him and no assessment had been carried out but she had based her report on “what the mother told me” and the concerns relayed to her by the CFA. The father’s barrister said that the social worker had considered the mother’s version and had arrived at a conclusion when she had not considered the father’s version and had not liaised with him in the preparation of her report. The social worker confirmed that there had been no concerns raised from the hospital in respect of the father since the baby was born.
Baby’s social worker
The next witness called on behalf of the CFA was the social worker allocated to the baby. She told the court that the CFA had received a referral from the maternity hospital and had also received an additional referral from the women’s refuge. The social worker said that she had been allocated for just over one month prior to the application for the interim care order. She reiterated the evidence in respect of the alleged assault and that the mother was in homeless accommodation, but following the father threatening the hostel staff the mother had moved to the women’s refuge. The social worker said that the father became aware of the confidential location of the refuge requiring the mother to be moved and she had referred to the father having tracked the mother’s phone. This evidence was objected to by the father’s barrister on the basis that no evidence had been proffered that the phone was tracked and such allegations were unproven.
The social worker said the mother had told her that the father was engaging in counselling and she “felt his behaviour had changed”, and that there had been no recent physical altercations or violence with the father. The mother had told the social worker that the father had no contact number and the best way to make contact with him was by the mother’s mobile number. The social worker said that she had phoned the mother’s mobile to speak to the father and when it was answered the phone call disconnected. A few minutes later she had called the number again but the mother had said it was not a good time and to phone back the next day. The next time the social worker called it was her first engagement with the father over the phone and she had introduced herself.
The social worker described a difficulty with the case was the ability “to manage potential risk to the mother in the case of triggering questions” as the environment for conducting the interview “was not controlled”. She said that it was concerning that she was unable to contact the father other than through the mother and this “highlighted control elements” and the limited ability “to manage her safety”. The social worker said that she had been careful but was very clear about the concerns to the unborn baby in terms of violence and coercive control. She said that the father had never presented as difficult on the phone and he had detailed that he was willing to do anything and had brought up questions about supports or services.
The social worker gave evidence that the baby had arrived early and a child protection conference was organised, the maternal and paternal grandparents had been identified as a safety network and invited to the conference. The social worker emphasised that the mother had been so motivated and organised and had a “fabulous skill in being resourceful” and she said that it was “important that I note that”. The social worker said that she had read out the “danger statement” at the meeting and the father had interjected to say that he had never been physical with the mother and the mother had responded and said that she “had over-exaggerated”.
Social worker: “That would have been a red flag for myself in terms of insight for the ability to safeguard and acknowledgment of past harm.”
The social worker said that at the conference the mother and father were very clear that they had wanted to work with the CFA and wanted to do everything to get to a level where they were satisfied that the baby would be safe. The paternal grandmother had stated at the conference that she had been trying for three years to get the father to engage with counselling supports, but that he had never followed through and “she was exhausted trying to support the father to access support.”
The social workers said that the safety plan suggested was discussed including planned and supervised access with the father. She said that the CFA flagged the concern over coercive control and the behaviour of the father towards the mother and that she was struggling to break the cycle of violence by returning to the relationship. She said that it was indicated that the plan needed to be “more robust” to satisfy the CFA that that there was not a risk to the baby. The family were given time to consider a new plan and a review was scheduled for a few days later.
The social worker said that she was satisfied that the intervention of an interim care order was proportionate in all of the circumstances and she had described the case as “extremely complex in terms of the level of risk” and in assessing the coercive control within the relationship between the mother and father. The social worker acknowledged that the mother had said that she was no longer in the relationship and that she had taken positive steps to seek a safety order but that the safety order was just “a piece of paper until both parties were willing to act upon the paper.” She said that the mother had not consistently used those mechanisms that had provided her additional safety.
The judge asked the social worker what alternatives she had considered and whether there was some where the mother could live with the baby full-time. She said that they had explored options like a mother and baby home but there were concerns about the mother not having contact and leaving. The judge asked if a short order was made where the CFA had care control and where the child could not be taken out the door, but the mother could still be with the child full-time and whether that had been explored or a foster carer where there could be twenty-four hour access with the mother and the child’s physical whereabouts was under the control of the CFA. The social worker said that had not been explored and that there were complexities in putting that together and she was “not sure what that might look like” in terms of a foster placement, and there would be concerns in managing that in a safe way. She said that there would be concerns about the location being disclosed.
The mother’s solicitor asked the social worker about the proposal that had been made to the CFA that the mother would agree to an interim care order with the grandmother, who was a retired teacher and had never been in trouble with the gardai as the foster carer, but that was “dismissed out of hand”.
The judge referred to the High Court judgment of Noonan J in S.O.T.A v The CFA  IEHC 714 and he made a number of comments in respect of what options or alternatives the CFA had to explore and he said that there “seems to be a hole in that it has not been explored”. He said that the CFA had “a while to figure these things out”, such as a mother and baby home where the CFA could have the care and control of the child. The CFA solicitor said that it was an exceptionally difficult case where there had been recent developments where the CFA had been advised that the relationship was over, the maternal grandmother was put forward as an option, and the CFA wanted “to see if it can be followed through on”.
Break for parties to consider position
The judge said that he had a concern in relation to the case as it was “common case that the mother has capacity” and was caring, but the difficulty was with the relationship. The judge said that the CFA had not addressed the circumstances “in the way I would like to have heard”. The court took a short break to allow the parties to consider the position and he resumed the hearing again at 4pm to continue the hearing into the evening.
When the matter resumed the solicitor for the CFA said that her instructions were that the assessment of risk had not changed and there was “lots of concern for the child” but that the CFA would seek a foster home that would facilitate access seven days a week instead of three and only a very short interim care order. She said that the CFA had heard what the judge had said about “thinking in a creative way” but that the CFA required time and could not “come up with a solution right now”. The CFA wanted to proceed with the application for the interim care order with a foster placement on the basis that the CFA would facilitate access every day and said that it was “a proportionate response”. The CFA wanted an order for two weeks to explore the options.
The mother’s solicitor confirmed that the mother was consenting to a supervision order and would accede on a without-prejudice basis to an interim care order if the baby was placed with the maternal grandmother.
The solicitor continued to cross-examine the social worker in respect of miscommunication with the maternal grandfather around why he was not in attendance at the child protection conference. The solicitor was asked if guidance had been given to the family in generating the safety plan and the difficulty with the Signs of Safety approach, in comparison with the previous way the CFA had operated with trajectories and roadmaps, which she said was a lot clearer.
The social worker said that there had been “constant changing” with the mother having said that she had wanted to be in the relationship and then she changed to saying that she was no longer in the relationship. The social worker said that she required openness and honesty, acknowledgment of past harm, what the parents wanted in terms of co-parenting and the there had been no clarity in terms of planning as the “goal posts constantly changed”.
The social worker accepted that the mother “now has the benefit of specific legal advice” in relation to child care proceedings which she had not had before. The solicitor asked the social worker about her fears in respect of the maternal grandmother and why she was not considered by the CFA as a protective factor to assist her daughter with her new grandson. She said that her concern was that the plan was only newly identified and the CFA needed time to complete interviews and to see the home environment and what it was like.
The solicitor asked why the proposals put forward were rejected, and whether the CFA had provided the family with a baseline criteria without which they would not consider a safety plan. The social worker said that the CFA response was the “minimum required to ensure the safety” of the baby and any plan needed to be tried and tested.
When asked the social worker said that she had no specific qualification or degree in domestic violence or coercive control but had training throughout her degree and after, and she had been employed by the CFA since 2018. The social worker said that she had had a previous case involving taking a newborn baby into care and had experience of working on such a case.
The solicitor asked the social worker what she had considered and what assessments she had done in respect of the detrimental impact on the baby at such a critical time to be discharged from the Neonatal Intensive Care Unit. The foster carers would have to be trained in feeding and the mother’s breastmilk to be provided. She replied that there had been ongoing liaising with the consultant doctor, the medical social work team and the lactation consultant in respect of what was required to ensure the baby’s discharge could be met.
The social worker said that it was her professional opinion and based on the evidence of the court that the baby should be separated from his mother. The solicitor asked how the proposal put to the CFA in respect of a supervision order and placement with the grandmother did not mitigate the risk and the social worker said that it was “not evidence over time” and she considered the CFA approach as proportionate.
The solicitor said that the maternal grandmother had thought that foster placement only meant placement with a stranger and she was not aware of the possibility of a family member kinship placement. The social worker confirmed that she had not discussed this option with the maternal grandmother as she was concerned that the grandmother may not pass in terms of her age. The solicitor asked the social worker if she was aware that there were foster carer exemptions for kinship placements and if she was not aware of that she could consult with her team leader. The social worker confirmed that it was not discussed and the grandmother was not considered because of her age and she accepted that the option should potentially have been discussed with the grandmother at an earlier stage.
The solicitor for the mother said that her instructions were very clear, that the mother would do “whatever it takes” to ensure that the baby is not separated from her and without clear markers if was confusing for a new mother just post partum who was going through a “really challenging” period and there was “lots of ambiguity” from the CFA as to what was required in the safety plan.
The solicitor asked the social worker whether a comment was made to the grandmother that the application for the interim care order had to go ahead as the “hospital needs the bed”. The social worker denied that comment was made and she said that she had explained that her understanding was that the hospital was willing to support any plan but “needed clarity in terms of a time frame”, there was concern about the pandemic, that there was also a risk in the hospital and that some decision was needed in the best interests of the baby.
The social worker confirmed to the father’s barrister that she had been provided with a phone number for the father’s new phone and that he was living with his parents. The social worker confirmed that the father had made a self-referral to the Move – Men Overcoming Violence Programme and was now on a waiting list even if the CFA had requested prioritisation.
The social worker confirmed that she had only been appointed to the case for approximately two to three weeks prior to the baby being born prematurely. The social worker confirmed that she had not contacted any of the family members identified in the family network as to whether they wanted to be put forward to apply to be a relative foster placement. The barrister commented that by not doing that there was a “lost window” of nine days, that such an application by a family member could have been moved along and now the CFA were looking for an order for two weeks to assess a family foster placement.
The barrister asked why an emergency application for a fast-track assessment could not be facilitated as she had seen it done “in a few hours at lunch time”, and there was a statutory instrument in place that facilitated a faster approval process for foster placements as an emergency measure. The social worker said that the CFA required the two weeks to see the house and conduct interviews and evidence of a commitment by the mother and father to follow the plan.
The barrister asked what exactly was required from the parents within the proposed two weeks so that “it doesn’t become a rolling order”. The social worker said that a forensic risk assessment for domestic violence was required. The barrister said that was the first time that had been mentioned in cross-examination and it had not been mentioned to her or her client. The barrister asked for information in respect of the time line for such an assessment and who was to conduct it.
Social worker: “I don’t have a specific time line and I don’t have a name.”
Father’s barrister: “Are you setting the parents up to fail?”
Social worker: “No.”
Father’s barrister: “Does he have to have concluded that assessment in fourteen days, yes or no?”
Social worker: “No, that wouldn’t be feasible”
The barrister asked if that would be an impediment to the child’s return if such an assessment was required but was “not feasible in the two weeks order”. The barrister said that it was “making a mockery of the two-week order and the parents”.
Father’s barrister: “Does that need to be concluded for no further application to be made before the court.”
Social worker: “That’s not my view.”
Father’s barrister: “So the child can go home to the mother even if the risk assessment is not completed for the father? What is the plan and what do you intend on doing in the two weeks?”
The social worker said that “engagement” and “further assessment” were required and the barrister commented that “this is very social work language” and asked “what does that mean?” The social worker said that interviews were required but she was not able to provide information in respect of a plan or time line. A home visit to the grandmother was also identified along with a follow up of the protection order to ensure that the order was transferred to the new garda station.
Father’s barrister: “Could all of this not have been done before now?”
The barrister asked the social worker if she had had a discussion with the maternal grandmother since the proposed plan was put to the CFA earlier in the week prior to the hearing and she answered: “I have not”. The social worker confirmed that she was aware that the grandmother had been present in the court building for the entire day and was also present the previous day.
The barrister for the father emphasised that the concerns expressed by the gardai were investigations only and the allegations remained unproven before any court and that no court had made a finding in respect of the references to domestic violence.
The maternal grandmother was called to give evidence “in support of her daughter and grandson”. The grandmother confirmed that she was willing to open up her house to her daughter and the newborn baby and provide “a safe haven for them”. The mother’s solicitor asked the grandmother about the issues of domestic violence and coercive control raised in the child protection conference and how she had reacted when she had heard about the concerns.
Grandmother: “I was shocked, I thought it might not have been a good relationship but I had no idea how damaging it seemed to be. I was not aware of the extent.”
The grandmother confirmed that since she became aware of the extent of the concerns that she was supporting her daughter in exiting from the relationship and she understood the importance of the gardai and the social workers in protecting her grandson. The grandmother said that she had “no problem” with any home visits and she described her home and its location and that her partner was also living in the house. The grandmother confirmed that she would not tolerate “any suggestion of the father calling to the house”.
Mother’s solicitor: “What would you do if that was the plan?”
Grandmother: “I’d ring the police.”
The grandmother said that her daughter was very committed to parenting the baby and that she had not met her grandson yet due to Covid-19 and she said that “it is tough”. The grandmother said that she was not aware that she could have applied to become a family foster placement and she “assumed” that a foster family meant that the child was taken from its parents and “put into care and the foster family would take over”. The solicitor asked if she was aware of the option that the child could be put under a court order “but in your home environment”. The grandmother said: “I didn’t know it to be an option”.
The grandmother gave evidence that at the child protection conference she had attended that she “didn’t get any criteria” for the safety plan from the CFA and “it wasn’t even clear that access was to be supervised”. She had to ask during the conference if the CFA had required supervised access. The grandmother said that there was a “lack of clarity” on what the CFA was “looking for”. The grandmother described the detailed safety plan that had been proposed to the CFA including supervised access with “a detailed rota” and she said “we put a lot of effort into it”. The grandmother said that she had asked the CFA “what supports Tusla was offering and there was no reply” and she “was trying to think of a plan B”. The grandmother said that no consideration or guidance was given by the CFA as to how the proposed plan could have been improved or made more robust.
The grandmother said that she had learned that it was the intention of the CFA to seek an interim care order when the mother had phoned her “devastated and gutted”.
Grandmother: “I was gobsmacked as I thought even if not a perfect plan but I still thought the door was open to make it better but I didn’t know what to do to make it better.”
The grandmother said that the social workers had not contacted her to see if any additional support could be provided.
The solicitor for the mother asked the grandmother about her relationship with the mother. She said there had been some “ups and downs” as the grandmother had concerns about her situation and about the mother seeing the father. The grandmother said that the mother was “showing already that she is committed to being a good mum” and that “[the mother] is determined to look after her son and I am determined to help her in any way I can”.
CFA solicitor: “You just recounted that at the CPC that you nearly fell of your chair. So you appreciate why there are concerns?”
The grandmother said that she understood the concerns about the father’s behaviour and that prior to the child protection conference that she had “never heard the word ‘murder’ or ‘killing’ ever being used” about the father and that she had not been fully aware of the alleged assault against the mother. The grandmother confirmed that she had been aware of the protection order and that the mother had been in the women’s refuge as “she kept in touch with me during that time”.
The maternal grandfather gave evidence on behalf of the mother and he said that he was “absolutely” there to support the mother in retaining parenting of her son. The grandfather said that he had assisted in devising the proposed safety plan but said that he had not received an invitation to attend the online child protection conference. The solicitor said that it had been advised to the CFA that he had had a medical appointment and the grandfather said that he had no medical appointment but had he been invited and he had an appointment, “I would have changed it”.
The grandfather said that he had participated in a telephone meeting with other members of his family to put forward a plan to the CFA and when it was rejected he said that he was “very disappointed”. He told the court that he had telephoned the CFA the following day “to express my utter disappointment”, to get more detail about why the plan was rejected and to obtain more information about the background of the relationship between his daughter and the father of the baby.
The grandfather said that he had heard some information “for the first time” and he had expressed the view “that had I known this information before the group met I would not have agreed to the plan and I would have required more safeguards”. The grandfather said that the social worker had told him that “it was the final decision” and that “nothing else could be done”, the matter was urgent and had to go to court and there was “no way it could be stopped”. The grandfather said that after the telephone conversation he had drafted a letter immediately to send to the CFA as he had a concern that the family had not been listened to about alternative plans to be worked on.
Grandfather: “I was convinced as was [the grandmother] that we could come up with a plan to satisfy the needs in the best interests of the new baby”.
The solicitor asked the grandfather his view about the baby living in the grandmother’s house under a court order such as an interim care order or supervision order and he said: “I support that fully”. The grandfather said that in addition to all of the things that had been proposed that he would be “available to play a support in full” for his daughter and the new baby. He said that he and the grandmother were “not in disagreement with a lot of what is in the report but we are in total disagreement to their solution”, when referring to the CFA’s application for an interim care order placing the baby with a foster family. The grandfather confirmed that he would have “no hesitation whatsoever in calling the gardai or relevant bodies” if any undertaking or order was in any way breached.
Grandfather: “They are incredibly serious concerns and that is why I wrote to the social worker and tried to get another meeting to see if we could come up with a plan that would be in the interests of the child.”
The grandfather said that he was “in agreement with most of what we have heard” but that he was “very disappointed in the attitude of Tusla” and had difficulty in even obtaining the correct email address to send his letter. The grandfather said that he had spoken to the social worker a few days before the hearing and “she was not interested in any further negotiations”.
The grandfather said that he subsequently received a phone call from the social worker which he said “I found disturbing”. He said that in his letter he had “pressed her why the urgency” and he had sought further time “to sit down and sort it out”.
Grandfather: “Her answer to me was because the hospital needs the bed. That reminded me of the worst examples of mother and baby homes. I could not believe my ears. I have no axe to grind with any individual or organisation. Of course I will sit down and go into detail in every aspect of this and come up with a solution in the best interests of the child. We will take whatever terms, conditions or ultimatums and we will adhere to them.”
The CFA solicitor told the grandfather that there was a concern at the case conference that the mother had minimised the seriousness of the violence and the father had denied it. She said that the CFA were seeking an order for two weeks “to tease it out” and whether the plan could work in the change of circumstances where the mother had said that she was no longer in the relationship. The grandfather said that he had no problem with the situation being constantly reassessed but that he “could not imagine a far better, more loving place for that to happen than in the house of [the grandmother], that is the place”. The grandfather said that “we strongly say that he should be in the care of his mother and grandmother in a lovely room and a nice house”.
The mother gave evidence to the court and confirmed that she was no longer in a relationship with the father and that the father was “not part of my life”. The mother outlined her plan to live with the grandmother and that she would “stick to the terms and guidelines” of any safety plan. The mother confirmed that she would seek for the protection order in place to be transferred to the local garda station and that she would proceed with the application for the safety order.
The mother outlined the details of the premature birth of the baby and that she had been “feeding him exclusively since birth”. She outlined why the bond was so important and the level of breastmilk that she had been achieving considering that the baby was premature. The mother said that she was willing to give an undertaking to the court to have no contact with the father directly or indirectly and not to meet him. She confirmed that her solicitor had explained to her the consequences of breaching such an undertaking and she was aware of the penal consequences.
The mother said that the father’s “past behaviour has been physical and verbal towards me” and that she thought separation from the father was in the best interests of the child. She said that if the father addressed his behaviour in the future he might have supervised access, but that she would take the guidance from the professionals. The mother told the court that the thought of the baby going into care was “very emotional” and that “I’d do anything in my power for him to come home”. The mother said that she was aware of the concerns raised in court but that she felt “confident that I’m a natural mother” and that she would have liked to receive some support.
The CFA solicitor asked the mother about the history of her relationship with the father and when there was first evidence that it was “not a supportive relationship”. The mother told the court about an incident where they had “both pushed each other” and that he had been “verbally abusive and controlling”. She said that the father had given her a phone and there “was a tracker on it” and she said that the father’s “behaviour was not acceptable”.
The mother told the court about the alleged assault referred to by the garda witnesses and she said that in that situation she was “totally scared of the father’s behaviour” and that she had told the maternity hospital about the incident the next day.
The CFA solicitor asked the mother if she was aware of the importance of and consequences of a breach of an undertaking or protection order and asked why she had not wanted to prosecute previous breaches of the protection order. The mother said that the father’s past behaviour was not acceptable and that the relationship was over and that her “baby was number one”.
The father did not give evidence at the hearing.
The solicitor for the mother made closing submissions to the court and referred the judge to the High Court judgment of Noonan J S.O.T.A v The CFA  IEHC 714 in respect of taking a newborn baby into care and he had endorsed the European case law including the judgment in K and T v Finland where Article 8 ECHR rights were examined when taking a newborn baby into care.
The solicitor described it as an “extremely harsh measure” and the application was extraordinary where there was clear evidence in respect of the mother’s parenting capacity and that the CFA was seeking a “draconian order”. The solicitor said that having regard to section 17 of the Child Care Act 1991 there was no such reasonable cause to believe that the child’s welfare had been affected and in this case there was an alternative option and a suggestion to circumvent the risk had been made.
She said that an interim care order was not necessary in the circumstances where an alternative option had been proffered. The solicitor said that it was also open to the court to make a direction to place the child with the grandmother and she had referred to a case where the High Court upheld a direction of a District Court judge to place children with their sister. The solicitor said that the “proportionate response” was not to separate the baby from the mother and alternative options had to be considered.
The barrister for the father endorsed the submissions made on behalf of the mother. The barrister said that principles of proportionality had to guide the court to make the least intrusive order necessary to protect the child. She said that the proposal put forward by the family and the grandparents was a less intrusive solution than the interim care order that had been suggested by the CFA and that the CFA had failed to consider any other proposals. The barrister highlighted the fact that the parents had indicated that they were willing to give any undertakings required to the court.
The barrister said that the statements that the CFA sought to admit in the section 23 application were inadmissible. She said that it was not in the interests of justice and was unfair where the statements had been allegedly made three years before when the children were very young and there was no contemporaneous note and there was no opportunity to cross-examine. The judge said that the court did not need to rely upon the section 23 statements and it was “common case that the relationship ended badly”.
The solicitor for the CFA said that the welfare of the baby was of “paramount concern” and it was accepted that the CFA must be proportionate in response. She said that the CFA was of the view that an interim care order was a proportionate response “in light of the serious risk”. The solicitor told the court that the CFA required time to tease it all out and “in every other respect she is a very good mother but we have to question the motivation that the relationship is over” and whether the mother would proceed with the safety and protection orders.
The judge said that he had heard evidence about the relationship between the respondent parents and that he was satisfied that there had been domestic violence with a “significant element of coercive control”. The judge noted that the mother regarded the status of the relationship as terminated. He said that the problem in the case was that it was “common case that the mother is able to fully look after the baby”.
The judge said that he was satisfied that due to the historic flux in the relationship that there was reasonable cause to believe that the child’s health, development or welfare was likely to be avoidably impaired or neglected and that it was necessary to make an order pursuant to section 17. In considering the proportionality of the order the judge said that alternative options had not been sufficiently explored and no effort had been made to that. The judge said that the CFA had to consider something “such as Miss Carr’s [mother and baby home]” where there was serious domestic violence. The judge said that the possible placement of the mother and baby with the grandmother “should have been explored and it seems to be a possibility”. The judge said that house rules needed to be set up to “ensure a durable and secure arrangement”.
The judge decided that “in light of these deficiencies” to make an interim care order for a period of twelve days to enable the CFA to fully assess the proposal. The judge made an access order that the mother was to have access with the baby every day for a minimum of five hours to ensure that she had “quality time with him and feed him”. He said that the access did not necessarily need to be five hours in a row but that it was so the mother could “effectively parent” and it “means a bond can be established”.
The judge made a number of comments in respect of the situations coming before the courts involving domestic violence and he said that “the CFA need to think about it” and perhaps a new service needed to be established.
The matter was listed before the court twelve days after the interim care order was made. On that date the court was informed that two days before an application had been made to the District Court to discharge the interim care order and a supervision order was made with the consent of the mother and father for a period of six months with a review after five weeks. The court was told that the mother and baby were living with the grandmother with safety measures in places and an undertaking that there would be no contact between the mother and the father.
Review of supervision order
At the review of the supervision order five weeks later the court was told that there “had been good progress made”, the mother had cooperated fully with the safety plan and the father had engaged with anger management. The court was told that the mother was scheduled to see a counsellor and the mother was back in her own apartment since the previous week “with a safety net of both grandparents built in”. The CFA had acknowledged that progress had been made but that due to the “seriousness of the situation” it was recommended that the supervision order was to remain in place and to be listed for review by the court again.
The mother was present in court and her solicitor told the court that the interim care order had been “discharged in advance of it coming to an end”. She said that it was a “success story” and the mother had engaged fully along with the grandparents. The solicitor told the court that “the network is very critical in this case. She said that the mother was in agreement with the recommendation in the social worker’s report but the only issue the mother had was that the gardai were “checking very frequently” and the mother was concerned that they were “excessively using their powers” and were calling in the evening and “not using discretion with the neighbours”.
Mother’s solicitor: “The mother’s engagement is critical in the whole process and she thinks there is slightly excessive [use of powers] in force. She has no difficulty with the matter going back but it is to be fed back to the gardai in relation to the checks and that they be confined to the issue at hand rather than other remarks.”
The barrister for the father said that he had complied with the terms of the undertaking and the safety programme as in the supervision order. She said that she was surprised that a further review was contemplated “given the progress and compliance”, but the father was happy to attend court again if the court was minded that a further review was required.
The judge listed the matter for review of the supervision order in nine weeks and he said the “critical thing is that they are to keep the momentum and not allow the wheels to come off”.