See follow up Vol 1 of 2018: https://www.childlawproject.ie/latest-volume/access-to-young-child-suspended-temporarily-by-district-court/
A full Care Order was granted for an infant in the District Court. The court heard that the single mother had a learning disability and struggled with judgment, reasoning and planning ability. The mother did not accept that she had a mild learning disability and had therefore not engaged with the necessary support services. She needed 24/7 support to care for the child, but no family members had come forward. There was also a history of drug addiction.
Her GP told the court that the mother had a “borderline low IQ and particular difficulty in understanding important issues or problems,” her motivation was up and down and she tended to be depressed and paranoid. She had difficulty forming relationships and being consistent.
The GP had prescribed her anti-depressants and Xanax over 12 years ago. He had also referred her to a local psychiatric service for assessment. He had tried to wean her off the Xanax, “but she kept coming back for more prescriptions. She did a detox for two weeks [in early autumn 2012].”
HSE: “Why was it necessary to wean her off the medication and why was it indicated to do the detox?”
GP: “In my opinion she was addicted to Xanax and needed to do a detox, it was from all the benzodiazepines.”
In April 2013 the courts asked for toxicology to be carried out using dip-sticks to check urine samples for opiates, benzos, methadone and amphetamines, said the GP. The first and last samples were positive for opiates, the two negative samples had not been supervised.
He had a confrontation with the mother last summer, when he saw she had brought a sample jar with her. “She got aggressive and confrontational and stormed out of the surgery. Outside she was verbally aggressive, she opened her sample jar and threw the contents in my direction, then she walked off.” She stopped attending his surgery after that.
He found her very demanding and manipulative of the staff when trying to obtain a repeat prescription.
In response to a letter from the social worker, he had stated: “There is no single reason why [the mother] would be unsuitable to carry out the role for caring for her child.”
He told the court: “The issues flagged at the time were medication issues, a lack of understanding of the situation that she was in, poor insight, manipulative behaviour, a history of depression and addiction, a lack of ability to be consistent in carrying out basic duties, difficulty finishing a course, difficulty getting on with staff in the workplace and getting aggressive at times, missing a lot of days at work.”
Mother: “You lying little fuck.”
GP: “If [the mother] were in a position where she was the sole carer for the child I would suspect that everything would be fine for a certain number of weeks, not even months, and she would fail in maintaining the basic level of care for the child. Unless supports were provided for her I don’t think it would work in the long run. Her mother wouldn’t be a suitable carer, she’s elderly and is unstable on her feet, she suffers herself from bouts of depression.”
The GP said the situation as it was with the child living with relatives was the best situation, that the child would do better there.
He told the mother’s solicitor that her depression was not relevant. A lot of people had depression and it did not mean they were not able to carry out their day-to-day work. “A lot of people have borderline intellectual disabilities and get on quite well with life,” he added.
He said he was not aware if the mother had been assessed as a slow learner, there had been no psychometric testing or assessment. Her mother had told him she thought her daughter was autistic as a young child.
She had no problem expressing herself but he often wondered if she had taken in what he had said. Sometimes she did not seem to recall discussions from the previous visit. She had a strong addiction tendency which he did not think would change. She was on prescribed Xanax for 10 years, in the end she was on weekly dispensing so she could only pick up a week’s prescription at a time.
Social Worker’s evidence
The social worker told the court that supports were identified in the early stage. Initially a social worker had supervised the access in the family home but tension had mounted and the mother had become hostile and abusive towards the social worker. A family support worker was then allocated with the specific task of modelling parenting and teaching basic parenting tasks in an access house.
From the time of the birth concerns were very high about her basic ability to look after the baby. He was left unattended for long periods of time in the hospital. He was found alone with vomit on his mouth, and alone with his face tight up against the cot. He was also found in dirty clothes.
She said the mother found it difficult to open bottle tops and put in the correct measure of formula, bottles were being overheated and she had “huge difficulty in changing the nappy.” She found it hard to do two things at once. “She is not able to ensure the safety of the baby while she changes the nappy.” On one occasion the mother turned her back on the baby while he was unsecured in his high chair, he lunged forward and the social worker caught him.
“Putting clothes on him is difficult for her, she needs assistance, if she can’t do something she is inclined not to.” She had not shown initiative and had to be prompted to change a dirty nappy. “[The mother’s] ability to learn any of those basic parenting tasks in the past year has been very low, we’re still talking about the basic things, feeding the baby etc,” said the social worker.
A learning disability should not dictate capacity unless the IQ below a certain level. The mother’s IQ was below that level, at lower than 60. “A major element of someone’s capacity to parent as well is their willingness and motivation. In relation to [the mother’s], her willingness has not been there, access goes well if the family support worker initiates the task, [but] she does not like to take direction and becomes hostile.”
There was no progress. The baby had a lot of health needs, at one point he was on two inhalers, a nebuliser, a steroid and an antibiotic, the social worker had no confidence the mother would be able to deal with that.
Social worker: “[The mother] doesn’t believe she has a learning difficulty so she doesn’t attend supports, she lives with her mother, family members have indicated they don’t get involved with her due to her hostile behaviour in front of [the baby]. That reflects back to observations that she has a resistance to engaging and receiving support.”
HSE solicitor: “To what extent can [her own mother] help?”
Social worker: “She has stated she is not in a position to care for the child. She had had three hospital admissions, she took an overdose, [the mother’s] sister died and the mother was in hospital for five months after that, there were two hospital admissions of six weeks each to [psychiatric hospital].”
The social work department did not believe she was in a position to be the main carer and the grand-mother had always stated that.
The HSE solicitor asked her for an analysis of risks, strengths and protective factors.
Social worker: “There has been little or no progression in her ability to take on and learn skills of parenting and completing parenting tasks; to ensure basic safety, willingness to take on advice hasn’t been there, concern would be extremely high in relation to her ability to care for her son, he would be at risk.”
The social worker had such major concerns that she would not approve any unsupervised access.
Judge: “If you had no drug history at all would you be making the application.”
Social worker: “Yes, absolutely. Whatever the cause of it is we are still left in the same position as day one, the net result of fundamental lack of capacity to parent.”
The baby was currently in relative foster care for which there had been a long-term match. The carers were very attuned to his needs. The onus was on both sides to work on the relationship, the mother had not contacted the foster family for a long time.
Mother: “I ring every day you stupid bitch.”
Judge: “I’m sorry you are not to speak in that manner to anyone in court.”
Judge: “If you took the hostility out of this case would it have any effect on your opinion?”
SW: “Given the basic level that we’re at, even if [the mother] had presented as very willing to learn I don’t think that changes her capacity to learn, while it has affected her relationships with people, I don’t think it has affected her outcome. I think if there was an insight it might be easier to manage all round. In terms of whether she’d be able to achieve the tasks, I don’t believe so.
Social Care Worker
The social care worker who had supervised access told the court she did not doubt the mother was doing her best, but she struggled “on a weekly basis with the basic tasks”. The following week she would need the same direction for the same task, this had not changed to date.
Judge: “All parents struggle at some stage, particularly new parents with all of the tasks that you have described.”
Social care worker: “I understand that judge, but in my professional experience working with people over the timeframe. She struggles on a weekly basis, it’s continuously repeating itself, she hasn’t continued to do it off her own bat on a weekly basis.
A Garda gave evidence of arresting the mother for shoplifting when she appeared to be under the influence of drugs.
The clinical psychologist told the court that she had assessed the mother’s intellectual ability. Her score fell within the mild disability range, this meant that she would struggle with overall reasoning ability and planning ability and need additional support. It would be difficult for the mother to judge situations where the baby could possibly be at risk in terms of health and safety.
Clinical psychologist: “As a child develops their needs become more complex, it would become more challenging for [the mother] to meet that; planning for education, assessing the school, making applications, all of those things would be a struggle. There’s plenty of evidence that people with a mild learning disability can marry and have children but also they would need extra support around it. I’m not aware she has any supports at the moment, she indicated to me her mum wouldn’t be able to give her a lot of support in the context of the baby.”
Regarding the level of support the mother needed, the psychologist said that she would have to have support at all times, because health and safety issues or a medical issue could occur at any stage.
The mother told the court that she lived with her mother, she had hoped her aunt and her mother would have come to court.
She told the judge her baby “was put into care cos my mother thought we wouldn’t be able to cope with my father passing away, my auntie said she’d help and my cousins would help me, what [the GP] said was nonsense, I don’t have a disability at all, I know how to feed him, he’s on the solid food now, my cousin was telling me he’s on the mashed potatoes, I got new clothes for him in the shop, I got him a load of games to play with, I have no problem changing nappies or putting on a jacket or suit, there’s nothing wrong with me, I don’t have a disability.”
No one in school had ever suggested she had a learning disability and she had no assistance with reading, writing or maths. She had left school without taking exams and worked for two years after attending a Youth Reach course. Her parents never said she needed extra assistance.
She had no contact with the father of the child, he had shown no interest in the child.
Mother: “Me mother has bonded with [the baby] and I have, and I really miss him. I was really looking forward to having my baby and bringing my son home but when they took him off me in the hospital I just broke down and cried. I was heartbroken they took my baby away.”
She had an advocate for the proceedings. Had she ever understood any of the concerns of the HSE, asked her solicitor.
“I understand in case the child falls or anything or if he bangs his head, it is a responsibility, but I am able to look after a baby,” she told him. “I love my son to bits, I love him with all my heart, I think about him every day of the week, anyone that takes your baby away, I don’t know how they can do it.”
Mother’s solicitor: “The social worker and access worker say they tell you the same thing.”
Mother: “No, I know how to change my baby now, I know how to feed him, change his stockings and shoes.”
Mother’s solicitor: “Do you recognise that they’re constantly repeating this?”
Mother: “They keep going over the same thing all the time, that I can’t fasten a button on a shirt, they’re silly things, you know.”
Mother’s solicitor: “Another thing that was said is that you can be a bit fiery, a bit angry.”
Mother: “I know when [the social worker] was talking yesterday, I was a bit fiery, if one of you was sitting here with [them] talking about you like that you would get annoyed.”
Mother’s solicitor: “Have you ever considered you have some difficulty with anger, keeping it under control.”
Mother: “Ah no, it broke my heart listening to that, but it’s very hard to keep it in, I apologise for my outburst, I’m after been through a lot with me sister and me Dad.”
Mother’s solicitor: “Have you thought about what would happen if you were looking after him?”
Mother: “There’s a school five minutes up the road, there’s a football club up the road for when he’s five.”
She said she realised the importance of maintaining good contact with whoever was with the baby, but she wanted to have him back.
When asked about the issue of prescription drugs, she told the court that she had taken E when she used to go to raves. “I used to take some Es back then, but I’ve grown up a lot since then. The raves came to an end, I was doing too many E, it came to an end, the rave scene was over for me, I went to [the GP] and he put me on two anti-depressants a day and two Xanax a day, but I’m off them now.”
She currently had no GP, she had no access to anti-depressants but she was feeling ok.
She gave photos to the judge of her with her baby and her mother.
“There’s at least one judge’s view that it should be the first entry on each file, a photo of the child,” said the judge.
“I love him to bits, I’d do anything for that child,” she told him.
“What’s your vibe as to how he reacts to you?” asked her solicitor.
“He smiles, hands out and he loves his nanny. It’s a pity my father isn’t here and my sister to see him, none of this would have happened if my father had been alive, he wouldn’t have put up with this.”
She said she would work with a service that would help.
“I miss my son, I think about him 24 hours a day, my mother misses him dreadful, at the time she wasn’t thinking because my father passed away. We just want [the baby] back.”
The judge asked if she agreed with anything the social workers said about his safety with her. She said no, she was holding him correctly and had tested the bottles, they were not too hot.
Her mother had expressed to the social worker that she would not be able to provide support, did she accept that she had said that?
She accepted that, but that was over her father, she changed her mind three weeks ago when her aunt and cousins said they’d help. She disagreed with the GP’s view that her mother would not be able to look after the baby.
The GAL told the court he was in agreement with the Child & Family Agency in terms of seeking the full Care Order.
In essence, his role as guardian ad litem looked at the child’s wishes, however the infant was pre-verbal so could not give his feelings. He was in an attached state of primary care-giving, he had had a year beset with medical aliments, treated competently by foster carers and his GP.
The expectation of need here was that his carer would be able to provide him with nurtured consistent care, with safety at all stages of development. He did not believe the baby would be parented competently by the mother, not now and not as he progressed in age.
In his initial report he stated that parents with intellectual disability were not necessarily precluded from parenting. He had looked at her support network and family supports and was concerned there was limited support within this to support her care of the child. She had not given any evidence she would work with professionals. His conclusion was that the child was best placed where he was.
The GAL said that his opinion was based on capacity and understanding which he did not see. “Sadly in this case I can’t see any positives to [the mother] parenting [the child].”
Mother: “How dare you, you don’t even know me. Muppet.”
GAL: “I haven’t seen the family come forward and make a strong, positive plan, I’ve asked the social work department about it as well and they haven’t seen the family come forward. If [the mother] maintains there are no problems, there’s nothing wrong with her parenting, it’s everybody else’s fault I can’t see how it would be to his benefit to return home.
“When you put it together with all the known facts, looking for areas of strength, confidence, ability, then look at supports needed, the supports far outweigh the strengths. This goes to the core of his expectation of need, and whether he can look forward to an expectation of care and nurture that would allow him to grow and I can see nothing from the evidence that would [show this].”
Mother: “I haven’t had the chance to become a mother, the HSE had it in for me since they took my child off me. You wouldn’t treat a dog the way you treat me.”
Three days later, the judge granted a full care order until the child reached 18.
He noted there had been insufficient information to locate the father, but there was evidence that he at least knew of the pregnancy. The judge was satisfied to proceed.
He found that the mother deeply loved her son and there was a good bond. She was affectionate towards him and wanted to care for him full time. The Child & Family Agency recognised that [the mother] was agreeable to the clinical psychological assessment and cooperated.
He found that mother had a chronic drug addiction in the past, she clearly had difficulties with addiction and behaviours such as aggression and manipulation around prescription, not untypical of such an addiction.
The judge said it was not clear whether the previously existing chronic drug addiction continued, but he did accept the evidence of the Guard regarding what the mother said to him about a prescription drug, he also accepted the incident of what happened around urinalysis with the GP.
He found there was no engagement with services.
He was satisfied the mother had a mild learning disability, and accepted the clinical psychologist’s opinion based on her testing methodology. That finding was corroborated by the observations of the witnesses. It was not clear if there was a formal diagnosis of the mother in the past.
The objective assessment of the social work department was that only basic needs would be met under constant supervision. The judge accepted the evidence of the Child & Family Agency in particular, they had attempted to improve these skills, but regrettably there was no capacity to retain these skills. There was no likelihood for an improvement of such capacity whatever the motivation, and the baby’s needs would become increasingly complex in the future.
Judge: “It is generally recognised a mild learning disability by itself does not determine care of a child, what [the clinical psychologist] said in my view is correct that the challenges of parenthood can be met with adequate supports, except in this case, and support is 24/7 support of adequate care. I understand that such support would usually be from a partner or close family members. While the mother has asserted both her mother and aunt would help I accept from witnesses that both the mother and aunt do not think they would be able to provide [that support].”
The social work department were not able to provide the 24/7 support that was necessary: “Even if such a service were available it would not be in [the child’s] best interests, the level of support required to sustain a placement with [the mother] is not realistic and ultimately unfair on [the child].
“I accept that mother has not been able to engage with the Child & Family Agency and has displayed aggressive behaviour, it is an unfortunate further barrier, a gap between the mother and the Child & Family Agency exacerbates the situation, but is not determinate of the case.
“I accept that the mother has given her evidence in good faith, but for the statement above and reasons given I prefer the evidence of the CFA and the [professional witnesses].”
The judge saw “no demonstrable path of reunification, the child’s best interests are served by a care order until 18 [years of age]”.
He made the order pursuant to Section 18.1.c of the 1991 Child Care Act (providing for Care Orders). In accordance with Section 37 of that Act, access arrangements were to be made in line with the care order.
“Am I getting my son back?” interjected the mother.
The judge continued that if a social worker’s visit to the foster home did not occur every six months, the case would have to come back to court.
The mother stood up and lunged towards the social worker, shouting: “You fuckin’ bitch I’ll kill you if I don’t get my son back.” A Garda came into the court and stood behind the mother.
“If you can please be as calm as possible, I have to deliver this,” asked the judge.
“I’ll find out where you live,” shouted the mother. She tried to lunge at the social worker again.
The mother asked the judge was she getting her son back.
“Regrettably, no,” he answered.
“Will I see my son?” she asked.
“Access will be under the Act,” he told her.