A judge in the District Court refused to make an order for face-to-face access between a mother and her three children in care, when access had been suspended due to the foster carers’ concerns about Covid-19.
Four siblings were in care in three separate placements in different geographical locations. Reunification was under active consideration. Child A, a teenager was in one placement, Child B and C of pre-school age were together in another placement. A, B and C were in care under interim care orders and were the subject of the access application. The fourth child, D, was an infant and in voluntary after the Child and Family Agency (CFA) withdrew an earlier interim care order application. The parents had access with D, so this child was not included in the access application.
The mother, who lived in direct provision, had mental health issues. The father in the proceedings was the father of A and D and he was supporting the mother’s application in respect of access with A. Both parents were legally represented by a solicitor and a barrister.
At the outset the solicitor for the CFA sought an adjournment as she argued that she had not been served with the application with two clear days’ notice. However, the CFA ultimately did not proceed with the adjournment application and the section 37 access hearing proceeded.
The barrister for the mother reminded the district court judge about the details of the case and that the last time the matter had been before the court the issue was that access with D had been reduced from twice to once per week. The court was informed that since the last date the guardian ad litem (GAL) had attended an access visit with the mother and he subsequently supported and recommended that the face-to-face access be reinstated to twice per week with D.
The barrister informed the court that the issue in respect of access was raised at the last court date and risk assessments relating to each access visit were sought from the social worker. He said that the legal representatives were informed on the evening prior that the scheduled access the following day would not take place. When the parents were informed that access was not being reinstated the barrister said the CFA were served with unsworn papers and that the CFA were aware that it was the intention to move such an application on the Friday and therefore had notice of the nature of the application.
The judge told the parties that he had read the papers in respect of the application and he had identified a number of elements to the application, including the Covid-19 government restrictions outlining what can and cannot be done.
Judge: “Certainly the facilitating of access in so far as at all possible even with Covid restrictions has to take place. I wonder whether there are maybe ways to have face-to-face access albeit behind two screens so there is no physical contact, but more than just a Zoom call.”
The second issue identified by the judge was the manner in which the cancelled access was communicated to the mother and that the mother was “an amenable sort of person”. The solicitor for the mother had complained that consent was sought from the mother where she had not had the opportunity “to speak it over with her support people” or her legal representatives. The third issue identified was the foster carers’ concern with access taking place during the Covid 19 restrictions. The judge also stated that the physical distance between the parents and the children’s placements was “another big difficulty” and that it may be an issue that was possible to overcome “albeit [it] may concern some additional finance”.
The mother’s application was grounded on the affidavit of her solicitor, and the barrister indicated to the court that he did not intend to call the mother as the grounding affidavit set out the reasons for bringing the access application. The mother’s barrister submitted that section 37 of the Child Care Act 1991 provided for the CFA to facilitate reasonable access and where the CFA were seeking to suspend access it was for the social worker to justify why reasonable access was not being provided.
The solicitor for the CFA and the solicitor for the GAL told the court that they had expected that some evidence would be called to support the application for access and they did not want any procedural deficit. The judge stated that he was of the view that the mother’s position was “fair enough” as he thought the position and matters complained of were clearly set out in the correspondence exhibited in the solicitor’s grounding affidavit. The judge said that he intended to proceed on the basis that the mother was not satisfied that access was cancelled and questioned the methodology or “risk assessments box-ticking”, which had not addressed the regulations completely.
The judge confirmed that he was happy to proceed on the basis of the grounding affidavit of the mother’s solicitor.
Judge: “I would prefer not to call her simply on a human level in this kind of case. This is very fraught for everyone and difficult. Of course the question of access and contact with parents and children is huge. It is very difficult and I think sometimes in this court we should not make it more difficult than it already is.”
As the GAL was due to be in another court for an ongoing hearing the parties all agreed that he could give evidence to the court before the social worker. The GAL told the court that he spoke to the foster carers of B and C twice earlier in the week about their concerns with access taking place because of their own child’s medical condition.
GAL: “The foster carer does feel that it is unfortunate she cannot facilitate access for [B and C] and she understands how important it is for the mother, as do I. She said that the decision was made with her husband that due to medical reasons for their daughter it was too high a risk for their family. They have always been committed to access pre-Covid, including driving lengthy distances for access.”
The GAL told the court that in this case the foster carer’s priority was for the wellbeing of their daughter and if it was the fact that access had to go ahead it would raise questions as to whether they could keep B and C in the placement.
GAL: “They don’t want to end the placement as they love the children but have to think of their own family.”
The GAL told the court that the foster carers had been advised by their GP concerning the medical risk to their daughter. He said that the foster carers were quite distressed that the matter of them not being willing to facilitate access was coming to court. The GAL said that the foster carer had told him that if access were to proceed the foster carers would consider severing the placement or insist on a type of fourteen-day quarantine arrangement for the children before returning to the home to ensure there was no risk.
GAL’s solicitor: “Is the severance of the placement a credible outcome or a live possibility?”
GAL: “The foster carer is very honest in relation to the good and the bad and they have a commitment to the children and have remained committed to the kids including at times where their own daughter with [an illness] wasn’t getting a full night sleep with the [foster children’s] waking issues. The priority is the kids and I do agree with that. Disruption to their foster placement given the dysregulation they show at times and their attachment with the family, it would be determinantal to them even if they have to go to a respite situation with another person, as their attachments are already affected coming into care.”
The GAL said that a fourteen-day respite period would compromise their health and welfare. If the respite option was available the children “would have to get to know a stranger for a two-week period before going back”.
GAL: “It is horrendous, this new world we are living in in terms of access, but we have to protect families.”
GAL’s solicitor: “Do you believe either of those scenarios are adverse to the children’s welfare?”
The GAL said that access was reviewed at level 5 restrictions and would be reviewed as the foster carer had said that if the restriction were to return to level 3 that she would commit to access being resumed but would prefer if access took place in an outdoor area in line with the guidelines. The GAL said that if the situation with a public health crisis continued, access would have to be risk assessed for access to take place each month.
GAL solicitor: “The court has to make a proportionate decision and weigh up no face-to-face contact against fourteen days’ quarantine or a risk of placement breakdown?”
GAL: “Yes, it has to be continuously reviewed.”
In respect of A the court was aware of his health needs and the GAL was of the view that he was similarly high risk. The GAL said that he understood that A was going to school and was in the community every day but that there was a higher level of virus in the county where the parents lived than in the county where A’s placement was. The GAL also told the court that the foster carer had also stated that there was someone suffering from asthma in the placement, but that it was primarily A they were concerned about.
The solicitor asked the GAL if it was his view that it was a proportionate infringement for access not to occur face-to-face. The GAL said it was his opinion that A was of an age that he could call his mother and do FaceTime or use social media. The GAL said that there was a fall out after telephone calls with bet-wetting at night and he felt it was related to emotional anxiety.
GAL’s solicitor: “Is there a possibility of long arm face-to-face contact, distanced from each other but in a certain range?”
GAL: “That would be some bit easier for [A] but virtually impossible for [B and C]. It would be unrealistic to put [them] in that situation where they cannot go near their mum and not understand why… It would put them in a position that is confusing for them.”
The GAL told the court that notwithstanding the pandemic and the risk he had advocated for increased access with the infant D and that this demonstrated that he was in favour of ensuring access can occur. The GAL said that there was no underlying risk to D’s foster carer or family and it was in his best interest that access remained at twice per week. The GAL said that access with the infant demonstrated that the CFA will act on recommendations made and in facilitating access.
The GAL confirmed to the mother’s barrister that face-to-face access had not taken place since the end of August, and it had been nearly three months without in-person access prior to the access hearing. The GAL told the mother’s barrister that he was hopeful that after the risk assessment some form of access could take place if the restrictions reduced from level 5 to level 3 or lower.
When asked the GAL agreed that access was central to reunification in child care proceedings and that reunification was “under active consideration in this case”.
The mother’s barrister asked the GAL about the parenting capacity assessment that was engaged in September 2019, which was not able to go ahead in February 2020, where the assessor had indicated that an “imperative part” of the assessment is observing access with all of the children.
Mother’s barrister: “The suspension of access until the start of December has ramifications for the case in a wider sense as it might possibly delay [the parenting capacity assessment] report?”
GAL: “I agree it won’t be possible if she has not seen access as it is an imperative. It would be prejudicial to the parenting capacity assessment to observe access where there has been no access for three months. She needs to see access in person and not on a media platform so it needs to be face-to-face.”
The GAL said that it would be of benefit to have a few accesses before it was observed so that the children got back into routine with access and were used to being around their mother. The GAL confirmed that access was only once per month with the three older children. The mother’s barrister asked if the suspension of the monthly access had ramifications for the date of reunification or for reunification to be considered. The purpose of the parenting capacity assessment was to guide what needed to be done with the mother, or consider whether reunification could take place imminently, and to make recommendations in respect of any therapies needed.
The barrister stated that access had been cancelled in September, and the reason given was that level 3 restrictions had been put in place in the county where the parents lived, but that “we are now being told that if the whole country is in level 3 access can be reinstated”.
Mother’s barrister: “Do you see why I have problem with that? Access that takes place once per month was cancelled in September when [the parent’s county] was at level 3. Was it necessary in September and proportionate for access to be cancelled in circumstances where the foster carer’s position has currently changed?”
The GAL said that he was not part of the risk assessment in September and that he was not consulted by the social worker for his view in respect of the suspension of this access. He said that his own risk assessment fell in line with it as it would have a detrimental impact on the child if there was a possible foster placement breakdown.
The barrister for the mother asked the GAL if he was able to suggest any measures that could allow access to take place. The GAL said that he had had a conversation with the foster carers as to whether access could take place outside.
The barrister pointed out that his client lived in direct provision and was regularly tested for Covid 19 and the risk assessment outlining reasons why the access was cancelled referenced the fact that the mother was living in direction provision in close proximity to other people. The GAL said that he had parents who were living in homeless accommodation that had regular access with children at that time.
The barrister for the mother asked if the fact that the mother was undergoing regular testing for Covid 19 played any part in the risk assessment that took place. The GAL said that he had not discussed this with the foster carer.
The GAL accepted that the level 5 restrictions may be lifted at the beginning of December and that in January the level 5 restrictions may be in place again. At the initial lockdown in March access had to be cancelled and the mother did not institute an access application.
Mother’s barrister: “If level 5 continues to December and if it is reintroduced in January the position of the foster carer is not going to change?”
GAL: “No, and I do not expect it to change.”
The GAL confirmed that all three children had been going to school every day during level 5 and that an outbreak of Covid 19 had occurred in the town of one of the placements.
Mother’s barrister: “In all of those places it is possible that these children can pick up Covid 19?”
GAL: “There are chances everywhere so we are trying to minimise the risk.”
The GAL confirmed that the foster carer was also going shopping but that it was in line with the government protocol.
The barrister for the mother said that the GAL had been critical of the quality of video call access in the past due to the apparent dysregulation of the children after Zoom calls and the barrister asked why it was now being put forward by the GAL as an alternative to in-person access.
The GAL said that he had had a concern that the mother had been falling asleep at access and whether this was a side effect of her medication. The GAL said that he was not aware of the names of the mother’s mental health team and had had no contact with the team but that he had asked the social worker for an updated report.
The barrister for the mother asked the GAL about the risk assessment form and the question on the form as to whether there was any concern about the participant’s lifestyle which indicate a higher risk in relation to Covid 19. The GAL said that he understood that question to be if a parent engaged in drug use or was engaging with people not abiding by social distancing rules. The barrister for the mother referred to the answer on the form stating that the mother was living in direct provision and that it “is a central factor in the decision-making”. The GAL said that he had raised the reference to the direct provision with the social worker and that he had clients in various different states of accommodation.
The barrister for the father of A and D said that the father had no issues with the access with D. The barrister for the father sought clarification as to when the GAL last saw A in person and whether he had seen him over the last number of months. The GAL said that he had not seen him because of Covid and he confirmed that the last time he had seen the child in person was just before March (approximately nine months before) but that he regularly spoke with him on FaceTime or other media platforms.
The barrister for the father said that she did not understand the logic of A’s foster carers. Her understanding was that at level 5 they would not allow access but would be willing to have access outside at two metres apart at level 3. However, they were not willing to allow access during level 5 outside at two metres apart.
Father’s barrister: “What is the difference in risk of outside access at a distance of two metres during level 3 or level 5?”
The GAL said that it was a higher rate of Covid and risk of transmission.
Father’s barrister: “But if it is outdoors at two metres?”
The GAL said there was a concern with people travelling for access from other counties and that there would be an excessive amount of people from all over the country to complete access.
The barrister for the father referred to her understanding of HSE advice about being outdoors and remaining two metres from one another. The GAL said his understanding of level 5 was that there was a higher risk of transmission both indoors or outdoors even at a distance of two metres.
The barrister said that the GAL had conceded that the foster carer was going to the supermarket and asked whether it would be fair to say that she would not be outside or always at a distance of two metres. The CFA solicitor and the GAL solicitor objected to questioning about what the foster carer was doing and if she was attending the supermarket.
Father’s barrister: “But everyone is standing by her?”
GAL: “I can’t account for what she is doing every day or her proximity to other parties. She has given a view in relation to risk and the placement breaking down.”
There was a discussion about how risk is calculated and the advice about face masks, handwashing and keeping distance and whether Covid could transmit further than two metres.
Judge: “Aside from all of that, what we have then is the GAL saying that the foster carers’ perception of the situation is such that they will not continue the placement whether right or wrong.”
Father’s barrister: “How long are we letting the foster carers hold access to ransom? This foster carer’s logic does not actually hold muster when we are told [the virus] cannot transmit past two metres.”
The GAL emphasised that the foster carers had shown great commitment to A with driving long distances for medical appointments and were renovating their home.
There was a discussion in relation to the public health advice and whether it was a consistent position that there was advice to the public concerning two metres social distancing.
Judge: “The issue here is the foster carers’ perception and whether or not they will cease the placement if access at the present time takes place.”
Father’s barrister: “If a foster carer for any reason perceives access should not take place, whether she doesn’t like the attitude of a parent or because she struggles with any element of a personal characteristic, and she says to you or the agency based on a personalised assessment that she doesn’t want access to take place or will break down the placement. Would you say a placement breakdown can’t take place?
“We are being held to ransom to the logic of the foster carer and perceived risk and deciding access cannot take place.”
The GAL said that there had been a risk assessment and the foster carers were very committed to access and were consistently reminding A to call his parents.
The barrister asked the GAL whether, if the foster carer did not have the perceived risk of access outside with a distance of two metres, he would support access going ahead. The GAL said he would be happy for access to go ahead it there was no risk to the foster family or to the child.
The solicitor for the CFA had no questions for the GAL.
Judge: “The affidavit says that the mother is a shy amenable person that seeks to be polite and not cause difficulty. Do you agree?”
GAL: “Partially. Yes, as a cultural issue very polite. Her primary response is to agree. I question her level of understanding of the proceedings.”
The judge finished for the day and the matter was adjourned.
When the matter resumed hearing a few days later the court was told that the parents were not able to be in attendance as it was an access day with D and due to the distance the trip took the whole day. The court was informed that a migrant support worker was in attendance to communicate with the mother what had occurred in court and the in camera rule had been previously lifted in respect of the migrant support worker.
The allocated social worker gave evidence to the court that he had been allocated to the older children for a longer period than he had been allocated to the youngest, D.
The CFA solicitor confirmed that on the last occasion the matter was before the court the social worker said that he would risk-assess each visit in respect of the restrictions in place. He said that on the last occasion the restrictions were at level 3 and access had been cancelled but that no decision had been made to suspend access generally. The social worker said that the foster carers for A had since confirmed that they would be happy for access outdoors once level 3 restrictions were back in place.
The social worker told the court that A had a medical condition which made him high risk. He said he had also received a report from the foster carers’ GP that there was an asthmatic in the family who was also considered high risk. The social worker agreed that the risk assessment form was a box-ticking exercise itself but that the risk assessment itself was not. He said that it was a busy period in his office and he had not filled out the form on time but told the court that the risk assessment had been carried out by speaking to the foster carers and they had made their position clear.
Social worker: “It is not my wish to cut off access. It doesn’t benefit me or my role. I don’t attend all accesses. I have to take into account the position of the foster family and the recommendations of the GP.”
In respect of B and C the social worker told the court that one of the children in the foster placement had a medical condition which in and of itself did not make the child high risk but if the child had the flu or a virus or fever it increased the risk of the condition worsening.
Judge: “We can all accept that not everyone knows a great deal about the virus and who is susceptible to it. There seems to be no telling who these people will be. There are higher risk categories but everyone is at risk.”
Social worker: “Clearly I am not a medical professional but I am relaying the concerns of the foster carers. On some level due to the adversarial nature of the system …[it] forces us to take a polarised position. I think it is important for children to have access, but I have to take into consideration the views of the foster carers … Every week and every month we will reassess the position. I hope at the end of this month we can reinstate access for everyone.
“I am also happy to look at other ways that might make it work but the foster carers made their position clear that access will not go ahead in level 5 restrictions and they will pull the placement. Given the attachments made it will be detrimental to remove [the children] from their placement while proceedings are happening and not in their best interest.”
The social worker said that he did think there was a real risk that placements would be pulled in particular for B and C.
The CFA solicitor asked the social worker to explain to the court how he had arrived at the view that access could not occur during level 5 restrictions.
Social worker: “I have to look at the household where the child lives and all the parties that attend access and their concerns and wishes. Also [the imposition of] level 5 restrictions for the whole country.”
The CFA solicitor asked what access had been facilitated and the social worker said that A was making phone calls twice per week with his parents and he was encouraged by the foster carer to make those phone calls.
CFA solicitor: “In general what is your view about access, do you support it?”
Social worker: “Absolutely and particularly in this case due to the complexity and the parenting capacity assessment it is important to have access. Access is going ahead with [D] as there are no concerns in his placement’s household.”
Social worker: “I am very conscious how the parents must feel not being able to see them face-to-face and I empathise and if the restrictions return to level 3 they will happily have him attend access again. But if the advice is to restrict movement and stay in [one’s] own county as much as possible then they don’t want to make the choice between having [A] in the household and their perceived safety of their family. They are mindful of the difficulties it causes to the parents.”
The social worker said that every access would be assessed on its own merits “with a clean slate” once level 5 restrictions had eased, and the CFA were already committed to making up access that had been lost in particular for A, taking into account his wishes. He suggested a day out together over Christmas, and said the CFA would be happy to facilitate it.
The social worker agreed that if the parenting capacity assessor was to observe access there needed to be time for access to normalise again after the extended break. The social worker said that the lack of face-to-face access did not compromise any reunification plan and the CFA would base it on recommendations once the assessment was completed.
CFA Solicitor: “What do you think would be the impact on the foster placement if access is forced on at this point?”
Social worker: “It would put the foster carers in a difficult position. They have shown the amount of work, support and care that they want to give [A]. They want him to do well and give him every opportunity in life that he can have while staying with them. They don’t want to have to choose between the safety of their family and him staying with them. It would put the placement under serious pressure. There is no guarantee a new placement would be more amenable to access during level 5 restrictions. We just don’t know that either.…I think it would be detrimental for [A].”
In respect of B and C the social worker said that the foster carers were “categorically unwilling to have access during level 5”. The social worker said that the foster carers had stated that they wanted B and C to stay with them and they did not want to make the choice between them and the safety of their own child.
The social worker confirmed that the children were attending pre-school but were trying to adhere to the Covid restrictions as much as possible. The social worker said that video call had taken place which “by all accounts went quite well”.
The CFA solicitor asked that as a previous access had been cancelled during level 3 could he give an assurance to the parents that level 3 restrictions would not be a bar to access.
Social worker: “I hope. We are all dealing with an unfolding situation with new procedure, policies and restrictions. The foster carers were concerned at level 3 restrictions as they didn’t want the parents travelling from [a named county] when numbers were high there.”
The social worker said that he had discussed the possibility of access outdoors with other precautions with the foster carers and they had said that they were willing to look at those options at level 3.
Social worker: “The difference is that [B and C] are quite young and social distancing will be a challenge and they would be seeking contact and touch and it makes it a bit more complicated trying to facilitate access during the restrictions.”
The social worker told the court that other than Covid-19 there were no concerns about the foster carers’ commitment to access.
The social worker said that in respect of the risk assessment he would take on board everyone’s views and would consult with the GAL however “ultimately the risk assessment for access has to be carried out by myself and the CFA have to come to that decision”.
When asked by the barrister for the mother the social worker agreed that there was an obligation on him as an agent of the CFA to provide reasonable access to the parents. The barrister asked why it had fallen to the mother to bring to the attention of the court the fact that the CFA “would not be providing access for a three-month period”. The social worker said that there was no decision to cancel access for three months but that each individual access was cancelled on its own.
Barrister: “Why did you not think it was necessary to update the court that the CFA were not going to provide access.”
Social worker: “Access is not court ordered at the moment.… We came to the decision after consultation with the foster carers that access couldn’t go ahead.”
Barrister: “Is reasonable access being provided at this point in time?”
Social worker: “When section 37 was written I don’t think they had in mind that there would be a global pandemic and there would be restrictions imposed on the whole country. It is an unusual time and unusual decisions have to be made. There is access with the younger child as [there are] no underlying conditions so access can go ahead. For the other foster carers’ homes there are concerns.”
Barrister: “At this point in time is any access being provided?”
Social worker: “Contact is being provided but not access.”
The mother’s barrister raised the issue with the social worker that the mother’s legal team had not been informed that the monthly access was being cancelled.
Mother’s barrister: “I accept Covid 19 is unprecedented but what I am asking you specifically is what is the position in terms of access when the whole country is in level 3?”
Social worker: “It will have to be risk assessed again.”
Barrister: “So it may still not take place?”
Social worker: “It may take place.”
The social worker said that he could not give a guarantee that access would take place at level 3 as there were “no guarantees in life” but the anticipation and hope was that access could resume once the level 5 restrictions were lifted.
The barrister said he was perplexed as to why access had to be cancelled in September at level 3 and whether it was a proportionate decision and that an even longer period of access than might have been necessary had now been missed.
Social worker: “These are unprecedented times and the foster carers had to process the information like everyone else. Over time they may realise things might not be quite as they were or how [they were] perceived at the time and that is why the access visits have to be risk assessed on each access as we are learning as we go.”
The barrister asked the social worker about his previous undertaking to provide an access risk assessment by a specific date. The risk assessment form had still not been provided the evening before access had been scheduled despite requests from the mother’s legal representatives. The social worker said that he had carried out the risk assessment in an informal way but that he had been delayed in filling out the form as it “had been an incredibly busy week” and he apologised for the delay. The barrister emphasised the reasons that they had sought the risk assessment was that if access was not to take place the mother would seek to challenge that decision prior to the scheduled access.
In relation to communication with the mother when access was cancelled, the social worker said that he had tried to explain that it was being cancelled due to the level 5 restrictions.
The social worker was asked whether the children were attending school and whether the foster carers were leaving their home. He said that he understood that they were trying to adhere to Covid restrictions and he knew they were going shopping and to school.
Barrister: “Reunification is an ongoing possibility in this case and you have been asked whether the suspension of access will impact reunification and you say absolutely not?”
Social worker: “No, absolutely not.”
The barrister put to the social worker that the suspension of access whereby the children did not see their mother for a period of three months “is of course going to impact the relationship”. The social worker accepted that a period of three months was a more significant period for a child than for an adult. The barrister said that the suspension of access was possibly going to have a detrimental impact on their presentation and may make problems worse.
Judge: “If this situation persists with the foster carers and their concerns…what is in the children’s best interests? The GAL has said the placement is important. It seems a bit of a catch 22 with the agency and the foster carers …It is all very well to say that somebody’s position is irrational and not at square, but the fact is some people are so frightened they not going out of their houses. There are other ramifications to this. I have sympathy for the view of the parents that they need to be kept informed of what the decisions are and why.”
Mother’s barrister: “In respect of the Covid 19 pandemic it is accepted that it presents unprecedented challenges.”
Judge: “It is a struggle for all of us.”
Barrister: “But access in this case was suspended from March to June and access [took place] once in July and once in August and then it was suspended again thereafter and may or may not take place. There is a significant likelihood we might find ourselves in the same position again and that results in the CFA’s and the GAL‘s implication that the placement is more important than access with the parents and reunification.”
The judge asked the parties to consider if the court was to adjourn the matter to the beginning of December to allow the CFA to produce a risk assessment and an access plan so it was “absolutely clear what the position is”. The judge stressed that the children were geographically very far apart and said that there were “a whole lot of moving parts”.
Judge: “Some of this is perhaps mis-communication. The court has limited scope of what it can do when in a pandemic.”
Mother’s barrister: “The pandemic does not result in the suspension of legal principles underpinning family access.”
The judge said that access had not happened and the issue was “where do we go from here”. It was his own view that something more could be explored and some creative solutions found about how things might be done.
The barrister for the father told the court that they heard what the court was saying but at that point the court needed to either make an order that there should be no access during level 5, or to order that in-person access takes place with creative solutions such as screens, masks, social distancing or outdoors, which were all things that the father was willing to do for in-person access.
This barrister identified a number of issues that she wanted to raise. The first was whether the foster carers had been informed that travel for access was an exclusion to the level 5 travel restrictions. The second point was that the barrister wanted clarification as to whether the foster carers “might cancel” the placement or “will cancel” the placement. The barrister said that she wanted an affidavit from the foster carers that they had considered the law and had considered the fact that the children had not seen their parents and notwithstanding a court-directed access outdoors that they would be stepping away from the placement.
The barrister took issue with the foster carers’ concerns not being before the court on affidavit and that the legislature’s position was that education and access could go ahead as essential but that “the foster carers are saying that they agree with the education point and not access”. The father’s barrister emphasised that the court had to make a decision in respect of the access application.
The judge said that simply making an order which will have huge consequences for the children, “let’s not contemplate the placement breaking down and see what can be done and explore that between now and then.”
The barrister said that she appreciated that the court was trying to overcome impasses but if the matter was to come back in December the parents would be in no better position.
Father’s barrister: “If access is to be suspended again in December we can bring another access application but we have brought this application that Covid is leaving access suspended or set aside. The situation is that there had been no access for over two months and it is too long.”
Judge: “The pandemic is going to go on for a much longer time and not going to ease up. It is incumbent on the CFA to find ways of working around it.”
The barrister submitted that if the court thought that the decision to cancel was legally sound the application could be rejected but that if the court wanted access to be accommodated the court could make an order to that effect. The parents were seeking an order of the court in respect of the position the CFA had adopted concerning access during the Covid 19 restrictions.
The solicitor for the CFA submitted that the CFA were not setting aside the legal principles with regard to access but were looking at them through a certain prism.
CFA solicitor: “What is reasonable in normal times is one thing and normal in a pandemic is another thing. Everyone is on a learning curve.”
The cross examination of the social worker continued and the mother’s barrister asked about the reference in the first risk assessment to the mother being in direct provision, but this was not in the subsequent risk assessments although she continued to live in direct provision.
Social worker: “Each access is to be risk assessed on its own. It was my first risk assessment and I have educated myself since on what is meant to go into it. To be honest then and now the fact she lives where she is isn’t taken into account when it comes to making the decision on access. It was written in by myself and nothing to do with the foster carers… a clumsy way of formulating the risk assessment the first time I did it. The fact she is in direct provision should in no way impede access.”
Barrister: “Was it a reason why access was cancelled?”
Social worker: “No.”
Barrister: “Why is it in the risk assessment? Why is it there as a reason if [it is] not in fact a reason?”
Social worker: “The reason [access was] cancelled [was] because of the concerns of the foster carer… I most likely filled it in error but [it was] not part of the decision to cancel access.”
Barrister: “The GAL said he had a conversation with you and told you you couldn’t discriminate on direct provision and told you to take it out. Do you recall that conversation?”
Social worker: “Yes, we had a conversation.”
The barrister asked the social worker about another section of the risk assessment asking what is “the possible impact on the child” for access not taking place.
Barrister: “In both September and October you have said ‘N/A’. My understanding is that means ‘not applicable’. It asked about the possible impact on the child. The CFA has said it is always guided by the best interests of the child. Am I right that ‘N/A’ means not applicable.”
Social worker: “Yes.”
Barrister: “So in this risk assessment, which is underpinning resistance to an application for access, in both risk assessments you have not analysed the possible impact of the suspension of access on the children.”
Social worker: “I wouldn’t say that but the fact is the reasons why access is being cancelled is down to the concerns of the foster carer and medical concerns and it isn’t necessarily something that concerns [ B and C].”
Mother’s barrister: “But that is the section… the court has to be guided by proportionality and there is no evidence that proportionality of the decision [was considered] or what the guiding principles were.”
Social worker: “If that’s the way you read it, ok.”
In her cross examination of the social worker the father’s barrister said that there were a number of points that she wanted put on the record.
Father’s barrister: “The government and its advisors have put the country in level 5 but leave schools open and access to continue. You are aware of that?”
Social worker: “Yes.”
Father’s barrister: “They have left schools open, have the foster carers decided to comply with that advice?”
Social worker: “Yes.”
The social worker said that there was guidance that access should take place where possible and should be risk-assessed. The barrister said that there may be guidance from the CFA but that she would “call out the law” and she read out the relevant provision of S.I. No. 448 of 2020 Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (No. 8) Regulations 2020 and that it was a reasonable excuse to travel outside a county of residence to give effect to arrangements for access.
“(n) if the person is a parent or guardian of a child, or a person having a right of access to a child, give effect to arrangements for access to the child by –
(i) the person, or
(ii) another person who is –
(I) a parent or guardian of the child, or
(II) a person having a right of access to the child”
The barrister stated that it was her reading of the provision that it was a reasonable excuse [for travel] for access to go ahead.
Father’s barrister: “The government has decided that school can go ahead and the foster carer have decided to comply, but so can access but the foster carer has decided not to comply with that.”
The social worker confirmed that he had told the foster carers that the government in legislation had deemed access a reasonable excuse, but they had stated that because of their concerns they did not wish for access to go ahead during level 5 restrictions. The barrister asked the social worker how much he had interrogated the foster carers as to the extent they leave the house during the restrictions.
Social Worker: “They are doing whatever is necessary in terms of shopping and schooling and besides from that restricting their movement and that is as much as I interrogated them.”
Barrister: “Did you say to them if we have access within your 5 km radius, outside with masks on at a two-metre distance could you facilitate that?”
The social worker said that he had discussed it with the foster carers and with additional safeguards whether they would allow access to go ahead and he said that “the answer is no”.
The social worker told the court that he would have to be guided by the GP as well who said that they are high risk and should not be mixing with people as much as possible.
Barrister: “Has the GP suggested to cease education?”
Social Worker: “No. During the first lockdown everything was shut down, even the courts.”
Barrister: “That is not entirely correct.”
The social worker said that during the first round of lockdown the GP had said it was important to see their parents but that it was “probably safer not to attend access”.
In respect of a potential placement breakdown the barrister sought clarification as to whether it was the case that if access was ordered the foster carers would stop the placement or would have to at that stage consider their position.
Social worker: “They said they are hopeful that they won’t have to make the decision or choice between [A] in the household but they have said they don’t want to have to make the decision.. it would make it difficult to continue with the placement.”
The barrister said that if the court was to direct access the foster carers could put on affidavit that if A was to have access outside, with masks, within 5 km that they would stop the placement and then have that affidavit available for the court.
Social worker: “They have demonstrated over a long period of time how committed they are to access and now somehow imply negligent or discriminating.”
Father’s barrister: “I am not suggesting negligent. I am suggesting an irrational approach to government advice… They will listen to advice on shopping and school but are not going to listen to advice in respect of safe outdoor access. Can you see the inconsistency with their attitude?”
Social worker: “There is inconsistency nationally. The regulations on many levels don’t make sense… There are people outside with takeaway pints.”
Barrister: “It is an unreasonable position to deem it unsafe for my client to meet his son outside with a mask on but safe to go to school with multiple children whose parents are having outside pints. They are willing to allow that risk to take place.”
The barrister said that she was asking the court to direct access and make the foster carers to make the decision they have not yet made and “then we can see what the outcome is”.
Social worker: “I think it is the wrong decision to force it.”
Barrister: “[As] somebody who has trained about children’s development and what they need, what is more important, their relationship with their parent or education?”
Social worker: “Depends on the parent. What kind of parents are they?”
Barrister: “My client, who has raised his child from a young age.”
The barrister for the GAL asked the social worker whether A continued to manifest anxiety after phone contact with his parents. The social worker agreed with the GAL’s position that the potential risk of the foster placements breakdown or the alternative respite placement suggested would not be in the best interests of the child and that due to A’s and the foster carers’ high risk circumstances access during level 5 restrictions would not be appropriate. The barrister for the GAL asked the social worker to undertake comprehensive assessments in a timely fashion and explore face-to-face alternatives and inform the parties prior to the decision being made so that they could input into the decision making process.
The mother’s barrister made a number of final submissions to the court to support the access applications. The barrister said that his first submission was that section 37 was still in place and by the insertion of the word “shall” in the provision there was a mandatory obligation of the CFA to provide reasonable access to the parents of a child. The barrister referred the court again to SI 448/2020 that provided as a reasonable excuse to leave a county to give effect to access arrangements for a child.
Mother’s barrister: “It is not the case that no reasonable access is being provided but in fact no access at all is being provided and that is the position since August of this year.”
The barrister stressed that there was a period of access suspension from March until June and the barrister had been instructed not to issue an access application to allow the CFA time to put the safeguards in place. The barrister submitted that it was now at the time of a second lockdown and the safeguards were still not in place. He said that the situation was exacerbated as access was only scheduled for once per month and it was not weekly or fortnightly where there had been regular access in the intervening period between the lockdowns.
Mother’s barrister: “The reality of this case is my client has had access with her children twice since March 2020.”
He said that the court must have regard to the proportionality of the decisions, and the two risk assessments where there was “absolutely no evidence whatsoever of the assessment of the impact on the children” as the answer to that question in both cases had been “N/A”.
The barrister referred the court to the European Court of Human Rights decision K&T v Finland and relied upon that decision to support the access application.
The barrister also submitted that the risk assessments placed before the court did not take into account that the mother was undergoing weekly Covid-19 testing in direct provision and that if direct provision was an issue the CFA should provide alternative accommodation for the mother.
He said that the court had to have regard to the rationality or otherwise of the foster carers’ position that no safeguards would address their concern when there was evidence that the children continued to go to school and that the foster carers were also leaving their home.
Mother’s barrister: “It is possible to put adequate safeguards in place for a more proportionate response to be adopted.”
The barrister referred the court to Article 42A of the Constitution and Article 8 of the ECHR and that there was a legal presumption that children are best brought up in the care of their parents. The barrister submitted that the CFA’s position was asking the court to place the foster care placement at a higher level in the hierarchy than the children having access to or being reunified with their parents. If the court was to say that the CFA’s decision was unreasonable that there would be major ramifications in terms of the trajectory of the case going forward.
Mother’s barrister: “The foster carer cannot dictate whether reunification is a possibility.”
The barrister submitted that it could not be ignored that the first risk assessment referred to the mother’s position in direct provision as to why access was suspended and this was not a legitimate reason to suspend access.
Mother’s barrister: “It is a catch-22 and a difficult situation but it is a difficult situation for the family long into the future if access is allowed to be suspended for three months to December and if it is the same again in January. There are major ramifications both for the children and parents and as a family unit.”
The barrister for the father adopted the submission made on behalf of the mother.
The CFA solicitor submitted that the assertion that there was no access was not accepted as there was access by video conferencing and phone calls and it was only physical access that had not taken place. The solicitor submitted that the ECHR decision relied upon was “delivered long before the pandemic” and that she would like to see “the case law for this period of time”.
The solicitor read out the CFA guidelines to the court and emphasised that the best interests of the child was the paramount consideration for the court. The solicitor submitted that it was not necessarily the case that it would interfere with reunification as a proper plan could be made for steps to be taken for reunification.
The solicitor submitted that direct provision had been inserted as a reason but that on reflection it was not a reason which was demonstrated by the fact that access had proceeded with D.
The solicitor read out to the court the entire CFA advisory notice for children in care that provided that access was to be determined on a case-by-case basis with a risk assessment. The advisory notice referred to the underlying health needs of children that should be considered, medical issues in the foster carers’ home and whether due to the child’s age there would be difficulties with social distancing.
The solicitor submitted that the CFA did not want to suspend access which was demonstrated with access with D as there was no underlying conditions the access could proceed. The solicitor said that unfortunately for the three children there were medical issues within the foster carers home to be considered. The solicitor submitted that the CFA was aware of their responsibility with regard to access and wished to comply and that a right of access could continue where it was possible and safe to do so.
CFA Solicitor: “The CFA understands that it is deeply upsetting for parents that access has to be postponed. The impact of Covid 19 on relationships across the whole country is as of yet untold. Many families have not seen parents or children.”
The barrister for the GAL reiterated the GAL’s position as had been set out in correspondence. The barrister raised a procedural issue with the mother not having given evidence to the court and relying on the grounding affidavit sworn by her solicitor on her instruction.
Judge: “Would you accept in many proceedings an agent may swear an affidavit on the basis of instructions?”
This barrister made a number of submissions in respect of SI 448/2020 (the Statutory Instrument outlining Covid restrictions) and asked whether it would also exempt access arrangement that did not comply with the regulations and the organisation of events. The barrister reiterated the GAL’s position supporting the access restrictions, stating that the possibility of a placement breakdown if access was directed would not be in the best interest of the children.
In giving his decision the judge said that the Covid restrictions had created a great deal of difficulty for the implementation of access but having regard to the best interest of the children the difficulties had to be overcome with no reasonable end to the pandemic in sight. The court directed the CFA to have a plan to resume safe access on or before 4th December 2020 and the plan was to have due regard to A’s wishes and the Covid restrictions in force from time to time. The judge said that he expected that something would be done about the situation as the “Covid pandemic could conceivably [cause] problems in eighteen months’ time”
The court formally refused the access application seeking in-person access and indicated that he wanted a plan before the court indicating what “can be done” and that he wanted the plan within a reasonable period.
Asked for clarification of his reasons for refusing the application, the judge said: “The application is refused on the basis of my direction… The reason is that the court doesn’t have a plan before it on the basis of which it can make the order. The court needs to have a plan before it and the reasonableness can then be tested. If in the plan it can’t just be left to Covid restrictions. The plans will have to come into this court in cases where there is no reasonably foreseeable end to this pandemic.”