See also Vol 1 of 2018: Care order application adjourned to address citizenship concerns
The Child and Family Agency (CFA) sought a care order in respect of three children following a series of interim care orders. At the request of the father, who had just arrived to Ireland from a non-European jurisdiction, the judge adjourned the hearing to allow him to seek legal representation. The father said he intended to move permanently to Ireland to put himself forward as the primary carer of the children. The mother was currently homeless.
Present in court were both parents, who were not legally represented, and one of their two adult children living in Ireland. The court heard that the father had travelled to attend the proceedings. The mother was an Irish citizen by naturalisation. She had just returned from the same non-European jurisdiction to which she had travelled a few months after the children were taken into care. She told the court that she did not want to avail of legal aid. The judge commented that it was nice that their adult son was present in court to support their parents.
The father asked the court for an adjournment to allow him to arrange legal representation. The judge replied that an adjournment could put the case back several months and that it would be against the principle of the welfare and best interests of the children, which were paramount.
The solicitor for the CFA said that the children had been in care for almost a year. The father replied that he had just found out and that he was making plans to ensure he got the children back. The CFA solicitor confirmed that the father had been summoned for the first time a couple of months before. The CFA solicitor noted that the father had attended the interim care order extension hearing the previous week.
The father told the court that he had taken time out from work and had arrived in Ireland the previous week to attend the proceedings. He said that he was professionally qualified and self-employed in his country of origin. When the judge asked the father if he had thought of hiring a solicitor, the father responded that he was making efforts to contact a lawyer in Ireland who was from his jurisdiction.
The CFA solicitor told the court that her instructions were to apply for a short care order. The judge pointed out that care orders were different than interim care orders and that he was entitled to make a care order under section 18 of the Child Care Act 1991 up until the age of 18 or for a shorter period of time.
Acknowledging the finality and certainty that a care order brings to issues, as well as the different threshold that applies, the judge said that the key point was whether the State intervenes in the lives of families when children’s best interests are in jeopardy. The CFA solicitor said that her client’s circumstances have not changed because the father was saying he wanted to come to Ireland to rear his children.
The judge noted that the decision of the court had to be proportionate to the circumstances. The judge said: “Is it a proportionate response to remove the children from the care of the parents? Society does not ask from anyone to be perfect parents. What the law requires from parents is to be good enough parents. In our society one of the most important tasks we undergo as individuals is to be a parent. Yet the one thing we do not do is to learn about parenting.”
The judge pointed out that in light of Article 6 of the European Convention on Human Rights, which protects the right to fair procedures in court, the father had a right to legal representation. On the other hand, the children had been in care for 12 months. Balancing the father’s rights against the children’s rights, the judge concluded that the father should have a solicitor. The judge said that the father was not from Ireland so it was difficult for him to navigate the system. The father told the court that he had to apply for a visa and that he was looking to move to Ireland before the end of the year because of the circumstances.
The mother told the court that she had no objection to an adjournment to allow the father to seek legal representation to put himself forward to be the primary carer of the children. Solicitor for the GAL said that her client supported an adjournment to allow the father obtain legal representation. The judge said that if the case was adjourned it would have to be on the basis of an interim care order.
Recognising that the father was putting himself forward as a parent, the judge explained that the hearing related to a public law application but private family law matters could develop in parallel: for instance, if the CFA application did not succeed and there was a disagreement between the parents, who were living apart, regarding the custody of the children. The mother told the court that as parents they were not fighting against each other but working together to have the children back. The judge remarked that the case was not just between the CFA and both parents and that one way or other it would have to be determined who would be primarily responsible for the children in terms of custody.
The judge said that the best outcome in child care proceedings was if the children could be reunited with the parents and that this was an obligation on the CFA and also on judges. “The CFA is not in the business of taking children from parents. We are in the business of protecting children and the best interest of the children is the paramount concern for the CFA,” added the judge.
The father thanked the CFA for their work so far and asked: “My wife is not working. Could you give the mother a job?” The judge replied: “She is not unique if she doesn’t have a job so I would not be unduly worried about it at this point in time.” The father said that he would like a schedule for access to see his children.
Following an adjournment to allow a discussion, the court heard that all parties had agreed to a six-month interim care order extension given that it would take the parents a number of months to arrange matters. The parties had also agreed to meet the following day to set up a schedule for access to take place.
The court heard that the mental health assessment that the mother had previously failed to attend would be rearranged. The CFA solicitor said that mental health services were not well resourced but the first step would be a visit to the GP. The judge directed the CFA to outsource the relevant appointments privately if necessary to avoid any further delays.
The judge said that an interim care order could be extended for a maximum of three months or four months as an exception even though he accepted that there were international issues that would need time to be addressed. The CFA solicitor said that the family had suggested a reasonable timeline. However, her client was looking for a review in three months as there were concerns that the matter would go adrift.
The social worker told the court that concerns continued to exist and she agreed to the six months’ interim care order with a review in three months. She said that a timetable to see the children was necessary and that it could be ready in two weeks. The judge directed the CFA to file the timetable in court in three weeks’ time as it was crucial.
The social worker spoke of her concerns regarding the low motivation and slow approach to get pieces done. She said that, although she accepted that it was an unusual case, she hoped in six months’ time they would not still be waiting for a mental health assessment to take place. She added that there were three little children who had been left in limbo for the last while and that openness, trust and commitment were necessary to keep the case moving.
The social worker confirmed that the father could see the children before he was due to return to his country the following week.
The mother told the court that she had not been in Ireland for a few months, as she was ill in hospital abroad, and that she was anxious to see her children. The social worker said that it was best for the mother to see the children when she was in good health.
The social worker explained that the mother had left the country a few months earlier without informing the CFA. She added: “Putting the children’s best interests at heart, she is a fraction of the lady she used to be. She is shattered. She left because she was going from hostel to hostel.” The court heard that the mother was currently staying in a hostel and that both parents needed to find permanent accommodation.
The mother said that the social worker should have worked with her to help her get accommodation and that she had been in the social housing list since 2004, which was a long time.
The social worker said that the mother was in the housing list in three different housing areas and that she had supported her application and advocated for her, which was all she could do. The mother told the court that the social worker she had had previously was very supportive but that the current social worker was “not really forthcoming”.
The judge said: “You need to have some stability in your life for your children but I agree that the CFA is not a housing agency. They support and advocate for you.” Acknowledging that he was not in the position to do anything because it was outside his legal powers, the judge told the mother: “The CFA is not a housing agency. Neither is the court. The most they can do is to invite a housing agency to the court and explain what is happening. They are not subpoenaed. It is voluntary.”
As the social worker was going on maternity leave, the judge said that the mother could try to work with the new social worker and update her name in the housing list. The social worker pointed out that the mother had been out of the country for a few months and that it could have implications.
The judge noted that the relationship with the parents was crucial and that in principle the mother should have access to her children. However, it needed to be done according to the best interest of the children who had had no access to the mother for months, only to the siblings once every two weeks. It was agreed that a timetable with parameters and time for actions, including access, would be discussed the following day and that an access worker would get involved. The judge told the mother: “If you can’t get an agreement in a couple of weeks, on the issue of access, you can come back to the court.”
Access to the child’s psychologist report
When the judge asked: “Are there any other questions?” The mother asked about her eldest child and, in particular, whether she could have access to the child’s psychologist assessment report. The judge replied: “All reports generated through the proceedings are kept private and confidential. Only social workers, guardian ad litem, lawyers and the judge have access. As a litigant party you can read and take notes from the report”.
The judge added that the report could be read in the CFA solicitor’s office or in the Agency and that it could not be photographed. Acknowledging the duty of court to protect the privacy of the children and the role of the in camera rule, the judge added: “It is because we are protecting the right to privacy of children in court proceedings, not because we want to do things in secret.” It was agreed that the GAL would seek permission from the teenager.
Guardian ad litem
The GAL told the court that psychological and parental capacity assessments should be carried out. “There is a lot in relation to this couple and how they operate,” she added. Acknowledging that it could take a minimum of 12 weeks, the judge directed the assessments to be done. “It will bring the best dimension of the situation to the table,” said the judge.
The judge explained to the parents that psychological and parental capacity assessments were independent reports of great assistance to the court. “There is nothing to fear… People, including parents, benefit immensely from it,” the judge said. When the CFA solicitor pointed out that the father was returning to his country the following week, the judge replied that arrangements could be made beforehand and that a timeline was necessary to avoid further delays in the best interest of the children.
The GAL told the court that the eldest of the children in care had really enjoyed meeting the judge and she wanted to convey that the child was generally worried about the mother. The GAL said that progress would be made but it would be slow. She added: “All children are anxious to see their mother. They were delighted to see their father. They are all doing well in their placement.”
Letter to move funds
The father told the court that he needed a letter from court or social workers to allow him to move funds from his country to Ireland. It was agreed that a letter would be drafted in consultation with the CFA solicitor stating that the father was involved in child care proceedings in Ireland and that the court believed it was essential that the father was present to participate in the proceedings.
“It is crucial that the parents engage although it is difficult,” the judge said. “To my mind is the first step in the process to move forward” he added. The judge thanked all parties for “their courtesy and assistance in this difficult matter”.
Adjourning the care order, the judge extended the interim care order for three months with liberty for the parents to re-enter the case if any issues arose in the interim.