Access application to visit ill mother denied because of lack of evidence on mother’s health- 2022vol2#39

A judge dismissed a father’s application for access so that children could visit their mother, who he said was gravely ill, in the family home. There was no independent evidence of the mother’s medical condition and the mother and father had refused to reveal details of her illness.

This matter concerned school aged children, a sister (A) and brother (B), who were the subjects of interim care orders and an application was made by the Child and Family Agency (CFA) to extend these orders. Dates for a full care order hearing in the rural town had been set. A parenting capacity assessment had been completed and the results had been circulated.

Present in court were social workers on behalf of the CFA, represented by a solicitor. The mother was not in court but was represented by a solicitor and a barrister. The father was in court represented by his own solicitor and barrister. The guardian ad litem (GAL) was present and also legally represented. The father had made an application under section 37 of the Child Care Act 1991 which permits a party to apply to the courts for access to a child or children who are in the care of the CFA.

The solicitor for the CFA said the mother was not well and had been hospitalised for a considerable period. She had deteriorated and there were grave concerns for her health. She had discharged herself against medical advice. He said the CFA had asked her for information about her health, but she had always refused to give information or her consent for the CFA to contact her doctors. The CFA was unaware of the facts of her illness and of the mother’s diagnosis or prognosis. However, this deterioration had been a sudden development. The children were aware of the mother’s illness, were anxious and worried, but they had not been informed of her recent deterioration.

The parenting capacity assessment had stated there was no sense of attachment between the children and had recommended that reunification should not occur. Currently, the children had access with each other weekly. They visited the parents individually. The children would visit one parent one week and the other parent the following week. Access was never in the family home and was fully supervised by an access worker.

Social worker’s evidence

The social worker told the court he had concerns about the children revisiting the family home. The children had not been back to the family home since they had been received into the care of the CFA. The children had made disclosures of the gravest kind. The girl, A, had recently had been interviewed by specialist Garda interviewers and more interviews had been planned.

He said an access at the family home had to be carefully planned and supervised. It could only be undertaken in exceptional circumstances. The children needed to be prepared and he had no information of the mother’s circumstances.

He was questioned by the mother’s barrister who asked if a home visit was impossible as this could be the last time or chance for the children to see their mother. The social worker replied a visit home was not impossible, but information was needed. The children needed to be safe and supported.

The social worker said: “I was aware the mother had long standing health issues but have no other information than what has already been said. The mother had discharged herself from hospital but if she was as gravely ill as I have been told why has she not returned to hospital? Why had an ambulance not been called? We [social workers] and the children are in limbo.” The social worker stated clearly that a home visit would be given the absolute priority once more information was forthcoming.

The father’s barrister cross examined the social worker and asked whether the social worker accepted that the mother was gravely ill. “The father has confirmed the deterioration in the mother’s health and given that deterioration, surely it is appropriate that a visit be facilitated?”

The social worker replied: “Of course, but we have no information other than what the father has said, that the mother is not well. The children need to be prepared. We have to be able to tell them something.”

The judge asked the mother’s legal team if they could enlighten the court as to their client’s health. The solicitor and barrister both responded they had not met with their client or been able to take instruction from her because of the deterioration in her health. The judge asked to hear from the father.

Evidence of the father

The father said the mother had been told there was nothing more the doctors could do for her. She had not discharged herself, the doctors had said she could go home. The doctors said she could return any time. He said the last four or five days were good but that yesterday she had significantly deteriorated. It was serious and he did not know how long she would survive. He said the children had a good understanding of their mother’s condition, they knew she was not well. On compassionate grounds they should be allowed to visit their mother as she was not likely to live much longer.

The solicitor for the CFA asked the father: “What is wrong with your wife?”

The father: “I cannot tell, it is not my place to tell. It is confidential, it is her private information, but her organs are failing.”

Solicitor for the CFA: “Why have you not returned her to hospital, why have you not sought medical attention? Why did she discharge herself from hospital if she was so ill?”

Father: “She did not discharge herself from hospital, the doctor said she could go home, there was nothing more they could do. She was well until four or five days ago. She did not get up yesterday and if she is not up when I return home, I will call the [out-of-hours GP]. She had blood taken a couple of days ago and the doctor said he will call with the results.”

Solicitor for the CFA: “Do you not agree that it is important that the children are given some information to prepare them?

The father: “The children know their mother is unwell, they have a good grasp of the situation. We had already spoken to them.”

The judge asked to hear from the GAL.

Guardian ad litem’s evidence

The GAL said she had seen the mother one week previously, and the mother had presented the same as usual. She had been unaware of the deterioration. She said the children were worried for their mother. While the children knew she had health problems, they had not been informed of her deterioration.

The GAL said she would be concerned about telling the children anything without concrete information. She would not be able to answer the children’s questions. She said: “On compassionate grounds and also for the children if the mother is as gravely unwell as has been presented in court, then a visit should be facilitated but it has to be planned. The children have to be prepared. I would worry what the mother may say to the children. I have no idea what the children would be walking into.”

The GAL said having more information about the mother’s condition was critical to planning a visit. From the evidence that was presented to the court, this visit could potentially be the last time the children see their mother. It would be difficult and therefore had to be carefully planned to protect the children.

The mother’s barrister asked the GAL: “Does a visit in such circumstances really require planning?”

The GAL: “Yes of course, the children know their mother has health issues, they do not know that this might be the last time they see her and if it is that visit will remain with them for the rest of their lives, it needs to be positive and planning for this can be done quickly once more information is known.”

The father’s barrister asked the GAL: “Surely it is up to the mother to tell the children about her ill health if she wants, this is a visit rather than an access and under the most compassionate grounds it should be facilitated?”

The GAL: “Yes, but to protect the children more information has to be made known.”

Submissions were made to the judge by the solicitor for the CFA who stated the CFA would do all they could to facilitate an access visit once they had more information and the children could be properly prepared. The GAL was supportive of this position. The legal teams of the mother and father both submitted to the court that a visit to their mother should be permitted on compassionate grounds.


The judge said she had considered all the evidence that had been given. She said: “I find the evidence of the father to be not credible. If the mother was as ill as has been portrayed in court, why has an ambulance not been called? Why has she been left alone? Why will he only call [out-of-hours GP]? This mother needs to go to hospital immediately and an ambulance should be called.”

She refused the section 37 application and said access was to remain as it was, at the discretion of the CFA and GAL. She directed that the social workers make a home visit to the mother to assess the situation for themselves. She extended the interim care order by 28 days.

The solicitor for the CFA asked if he could make a section 47 application (Section 47 of the Child Care Act 1991 permits a judge to make a direction in the best interests of a child) where the judge would direct the hospital to release the mother’s medical records or some information to the CFA for the purposes of facilitating access with the children. This application was denied. The judge said this information belonged to the mother and she [the mother] had refused it being divulged. The judge would not direct information be released in these circumstances without the mother’s consent.