Full care orders granted on consent, GAL refused hearing of further evidence – 2019vol2#29

Care orders for two children until they reached 18 were granted in a District court in a rural town with the consent of the parents, on the basis of a statement of facts agreed between the parents and the Child and Family Agency (CFA). The guardian ad litem (GAL) sought to have witnesses called to give evidence relating to allegations made by the older child, A, and to the behaviour of the younger child, but this was refused by the judge who said the threshold for making the care orders had been reached.

The parents, who were both from a European country and had the assistance of interpreters, were legally represented. They had three children, and the mother was pregnant. A, who had just ended her primary schooling, was not the biological child of the father, and had made a number of allegations against him, including that he inflicted severe physical punishment on her. These allegations were the basis for a criminal prosecution for child cruelty, of which he was convicted and received an eight months’ suspended sentence following a guilty plea.

The second child, B, suffered from a number of physical and intellectual disabilities and had special needs. A had alleged that B had been physically abused too, though the parents denied this. The third child, C, was not the subject of a care application.

The statement of facts agreed between the parents and the CFA, which was read to the court at the outset of the proceedings by the barrister for the CFA, said that A had made a number of allegations of physical abuse against her step-father, and he had admitted to some of them, leading to his conviction.

A had also stated that she was “poked in the bottom” by her step-father and had to share a bath with him, which he denied. However, he admitted to her allegation that she had to kiss him on the lips and massage him, and that she had witnessed the parents having sex on the night of their wedding, which the parents now accepted was inappropriate.

She also alleged that she was subjected to controlling abuse perpetrated by her step-father, including being made to engage in a daily exercise regime, learn Bible passages and being subjected to an overly strict disciplinary regime.

In relation to the mother, A said she witnessed an incident whereby the mother had threatened to self-harm, and the father had to intervene to take a knife from her. The mother acknowledged that the father was physically and emotionally abusive to A, and that she had done nothing to protect her. She also admitted she had once stabbed A with a nail scissors.

The mother had also told A that her biological father was dead, having died in a car crash. That was not true, and she now realised she should have told her the truth, which A now knew.

The statement said that the father “harbours resentment towards [A] for her disclosures and believes she is lying and needs psychological help.”

In relation to B, the statement said that she displayed concerning behaviours after access, including placing pens and clothes pegs inside her vagina, scratching her genital area and smearing her face and body with faeces from her nappy. This behaviour stopped when access was suspended. A neuropsychological report on her said it was highly likely she may have been sexually abused.

The statement continued that the parents accepted the full impact on the two children of the abuse and maltreatment they experienced. A did not wish to see either of them, and blamed her mother for not protecting her and B. She still appeared to fear her step-father. She had also voiced her frustration at the length of the court process (she first came into care three years earlier) which impeded her investing in her placement, her community, school and friends.

The agreed statement said that the father had been under huge stress as a result of both criminal and family law proceedings, leading to erratic and threatening behaviour which resulted in his wife leaving the home and seeking a safety order. However, there had been a reconciliation and she was now pregnant again. The statement continued that the family’s capacity to manage four children, three under six and one of whom had significant needs, would present considerable challenges. There had been a lot of family support provided which enabled them to parent C.

It was stated that both parents accepted their parenting of A and B had been inadequate.

The CFA barrister said a review was planned for 2021. It had been anticipated that the case would last for two weeks, and a number of witnesses had been listed, including some from outside the State.

The barrister for the GAL asked if the review would only concern the care plan and access, not the possible discharge of the care orders. In relation to the statement of facts, he wanted to clarify that A did not exclude having access to her mother in the future, but did not want to see her step-father.

“Our position is that it is insufficient for the parents to concede the threshold in general, they should concede the facts on which it is based,” he said. “It is important because findings of facts provide the basis for moving forward. It is also important for access or the supervision of access.”

Referring to the agreed statement of facts, he said that the father denied a lot of the physical abuse alleged by A, who said she was regularly physically abused, and he denied he put his finger in her anus. Her account was important for her care plan. “If she put forward a credible account, she deserves to have it acknowledged,” he said.

“We could have a truncated hearing. It is a decision for the court. Section 24 of the Child Care Act states that the welfare of the child is paramount. We say that for the welfare of the child it is important to have the facts proved. A lot has been conceded, but they are minor things. They do not reach the threshold for a care order.

“There was emotional abuse. [A] was told her natural father died in a car crash when he turned around in the car because she was crying.”

The mother’s barrister said that what had been agreed was making the welfare of the children paramount.

Referring to the allegation about putting a finger into A’s anus, the father’s barrister said that he had been upfront and open about using warm water and cotton wool in the anus of another child, (C), who was not the subject of this application. There were 18 agreed facts to show the threshold had been met, including a reference to the neuropsychologist’s opinion that B may have been sexually abused.

The GAL barrister said that the father had said (in relation to C) he used his finger to open the child’s bum, and used hot water around the bum. A had made reference to being poked in the bottom. The step-father accepted he asked for a massage and had kissed A on the lips, saying this was accepted in his country.

“The kissing of a child on the lips is abuse,” the judge commented.

The GAL barrister read from a statement by A, saying it indicated a serious level of harm. The agreed statement was, he said, one of allegations and denials.

Judge: “Do you want the case run or not?”

GAL barrister: “On the matters in dispute.”

Judge: “Where do you stop?”

The GAL barrister referred to a case in England where the local authority had sought to withdraw a care order application without evidence being heard, and the court had ruled in favour of hearing evidence.

The barrister for the CFA said each of the parents had acknowledged that the threshold had been met for care orders to the age of 18. It was not the case here that a care order application was being withdrawn, as had been the case in England.

“The court cannot do more than grant a full care order until 18. There is an issue of mootness,” he said.

The GAL barrister said that one of the witnesses he would like called was the public health nurse, relating to the allegations of (digital) penetration. The forensic psychologist from the UK who had been engaged (and was listed as a witness) had said that there was nothing in A’s statement that would cause doubts as to her veracity.

The father’s barrister said that the forensic psychologist had described what happened between A and her step-father as “sexually inappropriate” not “sexually abusive.” She said that evidence from the public health nurse related to C. At the time the father spoke to her he did not have an interpreter. There were cultural habits.

“What is agreed today goes to the threshold. This is a waste of the court’s time.”

The mother’s barrister said that the GAL barrister was seeking to draw a number of issues together in order to make additional findings. It was up to the CFA to make their case to the court, and they were doing that. It was up to the CFA to determine what witnesses they would be calling. The GAL position was not serving any purpose for the children.

The CFA barrister said that the only witnesses they were calling related to A and B. The file on C had been closed some time ago, and the CFA was never going to call witnesses relating to her. Substantial supports had been made available to the family, who had accepted them, so C was taken off the child protection register. The situation would be different if A and B were at home.

The mother’s barrister said that the GAL, out of criticism of a decision the CFA had made in relation to this child (C), was now trying to bring in additional witnesses. It was up to the CFA to put its case to the court. The father’s barrister said the GAL represented the voices of the children who were the subject of the application, not a child who was not even on the child protection register.

GAL barrister: “What the GAL is doing is giving voice to [A] who has consistently expressed concerns about [C].”

Judge: “The CFA conducts its own case. It controls the case and the witnesses to be called. Your client can criticise the case. I want to listen to the hearing I have been assigned to.”

The CFA barrister said that the only witness he was proposing to call was the chief social worker. The GAL barrister offered a list of documents he considered relevant, and indicated additional witnesses he would like called.

The mother’s barrister asked if the GAL was determining the witnesses. The GAL barrister said either the court could determine they would be heard, or the GAL could apply for them to be heard.

The CFA barrister said it was unusual for the CFA to rely on the consent of parents to full care orders. Where it did, the effect of the GAL application would be for people [who might consider consenting] to wonder if they agreed, might everything be opened anyway. The judge said that one sentence in the report of the forensic psychologist suggested he had been asked a question, and the judge asked that he be supplied with the letter to the psychologist. This was agreed and the case was adjourned for the day.

When it resumed the mother’s barrister said she was concerned about the application from the GAL to call witnesses the CFA was not calling. This was not the role of the GAL. She referred to the High Court judgment in AOB and O’Leary, given by Ms Justice Baker, which confirmed that a GAL was entitled to legal representation, but did not go further than that. It very clearly recognised that the GAL was not a party to the proceedings. That being the case she did not accept that the GAL barrister was entitled to call witnesses or direct the CFA to call witnessed it did not intend to call.

In circumstances where the CFA have put forward statements of fact which were not being challenged by the parents, the best interests of the child were being protected. The GAL barrister was attempting to go beyond the role of the GAL. If a GAL was entitled to go down this route it would be trampling on the role of the CFA.

The barrister for the father agreed, adding that granting legal representation to the GAL did not make them a party. The CFA was entitled to make its case as it saw fit, the GAL was entitled to express an opinion, but not to call witnesses to support it.

The GAL barrister said that the GAL’s statement of facts related to other important statements made by A. The English case to which he had referred stated that the court had the power to call witnesses, not the GAL. The GAL was suggesting that other witnesses be called and that the care order application for the third child not be withdrawn. The Section 24 provision, that the welfare of the child is paramount, applied.

He said that the court could permit the GAL to call witnesses. AOB and O’Leary was a very nuanced decision which did not lend itself to a one-line summary. On page 3 of the judgment it was stated that the court may permit the GAL to instruct a solicitor or solicitor and counsel, who would then conduct themselves like any other legal representatives.

On page 47 of that judgment it was stated that there were two ways a child could be represented under the Child Care Act – as a party or through a GAL. If the mother in AOB (who had challenged the GAL’s right to legal representation) was right it would produce an absurdity, whereby an older child had full party rights, but a younger and more vulnerable child had less rights. Baker had said that a child with a GAL did not have lesser rights, subject to the District Court.

The role of the GAL was different from the role of an expert witness. He or she represented the child and promoted the interests of the child, which was what the GAL was trying to do here. The child had a right to fair procedures, subject to the supervision of the court, he said. The judgment said that the child should have “full procedural rights to engage in the proceedings.”

He told the court he was applying to it to allow him to call witnesses.

The CFA barrister said that, in relation to the welfare of the child “we are already there” with care orders until the children were 18. “There can be no greater protection of their welfare. It can never be the role of the GAL to call up additional troops for the CFA.” He added that due to the consent obtained the matter was moot.

The mother’s barrister disputed the contention that AOB and O’Leary afforded all rights of a party to a GAL. “[The GAL] has rights akin to a party, not the rights of a party,” she said. “I don’t believe that Ms Justice Baker gave the GAL all the rights of a party. Just that in this case (AOB) the GAL had the right to legal representation.

“It is not simply a case of calling witnesses. [The GAL’s barrister] is seeking to adduce facts on which the CFA is not seeking to rely in its application. That cannot be correct. It would afford the GAL a role of watchdog over the CFA. That is not envisaged in law.”

The GAL barrister said that Baker also gave the GAL the right to cross-examine. That implied a right to call witnesses.

Giving his ruling on the GAL application, the judge said there was a distinct difference between the English case referred to and this case. [In the English case] there had been a proposal that with no evidence the children in the case be freed back into the care of their parents. In this case the GAL recommended that the court grant the care orders for A and B, which was precisely what the CFA was seeking and the parents agreed.

“I am going to rule the CFA calls its witnesses. The statement of facts clearly indicates to me that there is an acceptance by the parents that their parenting was inadequate. I am not going to allow you [to the GAL barrister] to call witnesses in circumstances where a full care order until 18 and beyond has been agreed.”

The CFA called the chief social worker to give evidence. He said A had come into care because of neglect. Concerns then arose about physical abuse and there were also allegations of sexually inappropriate behaviour. There was an extreme exercise regime. She spoke about being poked in the bottom and having to kiss the step-father on the lips. She said she was poked by the mother with a nail scissors, and she saw her mother attempting to self-harm with a knife. It was very frightening for a young girl. She was also told her natural father had died in a car crash, which was not correct, and that she was crying in the car at the time. She felt responsible for her father’s death.

She was now talking about getting to know her father, but the CFA knew nothing about him or where he was.

The mother did not protect her from the step-father. The mother spoke of wanting a father figure for A, that she found it difficult to parent her, of her being a “wild child”, and the step-father attempted to discipline her. The parents accept some of her allegations, not all, and at the early stages the step-father said she was out to destroy him, she was not telling the truth.

The social worker agreed that the forensic psychologist had found the girl’s evidence to be credible, with no evidence of fabrication. He had said she may not have been able to report all her adverse experiences.

He said A found the court process frustrating and had considerable difficulty in settling into her placement and community. It might well be she would have more to say when she learned of the order. At the moment she did not want to talk about certain things. She had not really been able to invest in friendships because she did not know if she would be moving or going home.

She was settling well into secondary school. Academically she was very bright, and was also musical. She was happy in her foster placement, though she had found it quite difficult. She did not want to return home either, she “just wanted to be like other children”. In relation to access, she had said she did not want to see her step-father ever again.

Referring to B, the social worker described her disturbing behaviour after access in 2017. It had taken her two or three days to return to normal.

He described her high level of needs. She had a lot of medical problems, as well as an intellectual disability. The neuropsychologist had assessed her and found it highly likely she may have been sexually abused, though there was no knowledge of by whom. Her behaviour was highly unusual for a child that age. This suggestion was fully denied by the parents.

The criminal proceedings (prosecution for child cruelty) and family law proceedings had been very stressful for the father, who took to abusing alcohol. The mother left the family home with C and applied for a safety order. The father had gone to his own country for a while. Reconciliation had now occurred and the mother was pregnant.

C had been the subject of considerable concerns and there was a pre-birth conference. Family supports were put in place, which worked. The parents had changed their parenting style. However, the older children had their own needs [which the parents would find it difficult to meet].

Asked by the mother’s barrister about access, the social worker said the CFA would like to get back on track with access for B, but needed first to get to the root of her disturbing behaviour.

He agreed with the GAL barrister that the neuropsychologist had said B should only have access if she requested it, but said there was a problem because due to her communication difficulties it was unlikely she would approach the CFA about it. Pictures had been suggested, but when she was shown photographs of her parents she became distressed. She also associated the access worker with access and reacted to her. He accepted a GAL suggestion that the foster carer for B have access to respite care.

He agreed that in 2016 the mother had said she believed everything A had alleged about her step-father, but she later retracted this. The barrister for the GAL said A had alleged she had been hit by the step-father with a belt. “Did you ever explore this with the mother?” he asked the social worker. “No,” he replied.

He said A was happy she had been believed. She might change her attitude to her step-father down the road. A knew her step-father had admitted certain things and had pleaded guilty in the criminal trial, so that she did not have to give evidence. “We will be led by her.” When she was in a permanent placement she might fully engage in therapeutic work, he said.

In relation to the new baby, he said it would be positive for both A and B to have a relationship with him or her, but if A did not want to see her parents this would involve the baby being in a room with a social worker the baby did not know.

Giving her evidence, the GAL described B’s special medical and educational needs. She was in a special school. She presented as content and was very attached to her foster carers. She was very distressed by access and going to access.

A was very bright. She found the length of the proceedings very difficult. She was anxious about what would happen if she returned to her parents’ care.

The GAL read from A’s victim impact statement prepared for the criminal trial. She said she lived with her mother until she was three, then the step-father came into their lives. She was beaten regularly, including with a belt. “At times I took beatings for [B]. I was forced to do stuff I didn’t want to do. He made me exercise every morning before school.”

She said she had seen her mother getting beaten a few times, and she used to watch adult movies. She said she had to go into care because of the beatings, and she moved a few times, which was very hard. “I have to go to counselling for what happened. I hope he understands what he did was wrong and I hope [C] is safe.” She added she did not want to see her parents.

The GAL said that care orders for both children up to the age of 18 should be made. She said it would be harmful for B to be cared for people she did not know, including those providing respite care.

She recommended the case return to court if there was no social worker allocated for six weeks. She should be discharged as the GAL, but be reappointed if the matter returned to court.

The judge asked her if she accepted that the agreed statement of facts pushed the case over the threshold. The GAL said that A had made a number of allegations that the father denied. He accepted he kissed her on the lips, sought massages and that she saw the couple having sex, which in themselves did not meet the threshold.

“I beg to differ,” the judge said. “If [A] witnessed her parents having sex it is sexual abuse.”

GAL: “If the other allegations are true it adds to the threshold, for example sharing a bath [with the step-father]. Being subjected to a harsh exercise regime does not get over the threshold.”

Judge: “I’m of the view that the statement of facts does get the application over the threshold. I don’t want to waste time. The father is entitled to deny certain things.”

GAL: “What is important to [A] is that she is believed.”

Judge: “Would the statement of facts be enhanced if the parents agreed that their parenting of [A] and [B] was inadequate?”

The mother’s barrister said that the court should not state as a fact each and every allegation made by A.

Granting the care order for both children, the judge said: “I believe the threshold has been met. I’m going to find the agreed statement of facts, plus an additional statement that the parents accept their parenting of [A] and [B] was inadequate, met the threshold.”

A date was agreed for review. The GAL was to be discharged at the end of January 2020, but reappointed in April 2021 when the case would be further reviewed.