High Court to consider case stated by District Court on obligations of State to mother with intellectual disability – 2017vol2#5

See follow up Vol 1 of 2018: High Court asked to state case on Section 47 powers in relation to a mother with an intellectual disability

In late 2017, the District Court in a provincial city heard an application by the Child and Family Agency (CFA) for a two-year care order for a period for an infant, on the basis that the mother could not meet the child’s needs due to an intellectual disability. Her solicitor challenged the application on the basis that the CFA had not undertaken a full and comprehensive assessment to identify the mother’s strengths and needs.

The Child Care Law Reporting Project was presented for two short hearings in late 2017 and was provided, with the court’s approval, with a copy of submissions to the court made by the CFA and the mother’s legal representative.

The social work report said: “The mother greatly loves her daughter… and is very committed to her contact with her,” however, she was not able adequately to meet the child’s needs due.

The parents were known to the social work department while they were growing up. The CFA asserted that both parents experienced high levels of trauma and adversity in their early childhoods which had impacted on their overall social functioning and family relationships. A cognitive assessment, conducted in early 2017 found the mother’s functioning to be in the mild intellectual disability range and showed a marked difference in her level of comprehension compared to other females of her age.

In late November 2016 a child protection referral was made by a maternity hospital to the CFA in relation a pregnant woman on the grounds of domestic violence. Given the short timeline it was not possible to convene a pre-birth case conference. In mid-December 2016 (prior to the birth of the child), the parents were referred by a social worker to a residential Parent and Infant Unit in relation to concerns about their ability to parent due to “intellectual disability and their emotional and social behaviour”.

The child was born in December 2016. On being discharged from hospital, it was agreed that the mother and baby would live with the mother’s family for a three week period as a bridging arrangement until they were admitted to the unit. During this period the family were visited at home by support services. In mid-January 2017, the mother and baby were admitted to a residential assessment unit for a 12 week assessment. The CFA noted that no care order application was made until the assessment at the unit was completed.

In late April 2017 on their last day at the unit, the CFA secured an interim care order (ICO) on consent and the child was placed in a foster care. Since that date the child has remained in care with the same foster carer under extensions to the ICO. The social work report stated that the child was doing well, her needs were being met and she was being well cared for by the foster carer. Since the child was placed in care weekly access has taken place between the child and her mother.

The CFA solicitor said the mother had been referred to the national advocacy service in February 2017 but they did not have capacity to take her on at the time. The service had recently made contact with the mother.

The father had acknowledged a history of domestic violence within a previous relationship and the mother had reported domestic abuse by the father in the course of her pregnancy. However, on admission to the unit both parents denied the presence of domestic violence within their relationship. After three weeks at the unit, the father’s placement was terminated due to concerns for the mother’s physical safety. To date, the father had not sought access with his daughter nor taken no part in these proceedings. The parents’ relationship was now ended.

However in April 2017 the unit alleged that the mother was still in contact with the father and was not being honest about it. The CFA considered the mother to be parenting alone. The father had a child from a previous relationship but had no contact with that child who was also in the care of the CFA.

Unit Assessment
While at the unit, the mother was provided with an “exceptionally high degree of support”, including support with basic care for the baby and practical planning tasks. Six weeks into the placement in March 2017 the mother was told there were concerns regarding her ability to care for the baby and if she were to parent her child she would need a significant amount of support. In response, the social worker attempted to convene a family welfare conference but the mother struggled to identify potential invitees and indicated that there was nobody in her family who could provide the level of support that was required.

The unit issued a final assessment report. It stated that during the placement the mother was “open and willing to engage”. However, the unit had “significant concerns with regards to the impact of her cognitive profile on her parenting in terms of attunement and physical safety.” The mother “struggled with some of the most basic aspects of [the child’s] care” such that “without the scaffolding provided by the unit team, [the child’s] needs would not have been met in a consistent and safe way.” The report concluded that the mother “does not have the capacity to provide a safe and appropriate level of parenting to her daughter to facilitate a reasonable emotional and physical developmental trajectory.”

Child Protection Conference
In April 2017, the CFA held a child protection case conference at which a number of protective and risk factors were identified. The unit’s assessment report was a key source of information. The professionals present at the conference agreed the child was at an on-going risk of significant [unintentional] harm in the care the mother and a decision was made to seek a care order.

In relation to access with the child who was now in care, the September 2017 the social work report concluded that the mother needed “a high level of prompts and guidance at each access and was never ‘without staff presence for longer than 10 minutes’, with staff being always within earshot.”

The mother’s family indicated that although they wished to be supportive they were not in a position to care for the child at this time. They “could not be there 24/7”. In September 2017, several family members were assessed by the CFA as potential foster carers but such a placement was not progressed.

Independent Assessment
In July 2017, the court commissioned a consultant psychologist, Expert A, to prepare an independent report under section 27 of the 1991 Act. The aim of the report was to set out “what supports if any, would be sufficient and necessary to allow [the mother] to parent her daughter on a full or part time basis”. The report was submitted to court in mid-October 2017 by which time the care order proceedings had already begun. The psychologist did not dispute the unit’s finding that the mother needs a high level of care to enable her to parent her daughter adequately, however, he challenged the focus of the assessment. The psychologist mooted, but did not recommend, 24/7 type care.

The psychologist’s report made a series of recommendations in relation to the mother’s personal development need and supports for parenting and access. The CFA solicitor reported that progress had been made in implementing some of these recommendations.

The social work report of October 2017 concluded that for the mother to parent she would need a 24/7 residential type setting or a shared care arrangement.

The CFA ruled out a shared care arrangement as an option in this case as it would not “adequately ensure [the child’s] needs are being consistently met, in addition to ensuring her safety”. It also noted that the mother did not have “adequate family support to support her parenting on a part time basis”.

It was noted that there was no 24/7 setting available in this State. The CFA were not supportive of a 24/7 care setting as it would not meet the child’s emotional needs. The social worker said such a setting would not be in the child’s best interests as it would lead the child to be “reliant on various staff members to have her needs met and receiving inconsistent parenting”.

Some studies existed on 24/7 care settings which demonstrated that this type of care allowed an individual to parent more effectively. However, the CFA noted that the studies did not contain information on the level of disability of the parents availing of the service. In addition, the CFA said there was no evaluation or longitudinal study to assess if the model was successful from a child’s perspective. The CFA questioned what impact such a care regime would have on the child’s development, attachment style and future emotional and psychological welfare.

The CFA drew attention to CFA v K [2014] IEDC 02 in which Toale J decided a case concerning a mother with an intellectual disability. The judge found: “Even if [a 24/7] service were available…, it would not in my view be in A’s interest now or in the long term to be parented (if it can be described as such) in that way.” The judge accepted the conclusion of the parenting capacity assessment that: “The level of support required to sustain a placement with his mother is not realistic and ultimately, unfair on A himself”.

The respondent’s solicitor pointed out that as a comprehensive assessment has not been undertaken, we do not know if a 24/7 service is what the mother needs to parent her daughter.

The later part of the hearing was taken up with legal argument on whether or not the actions taken by the CFA in this case met the proportionality test for interference with the right to family life.

Respondent’s Position
The solicitor for the respondent mother argued that the CFA care order application was premature and in such circumstances the authorised agency had not met the evidential threshold required under Section 18 of the 1991 Act. He argued that even if the evidential threshold of section 18 had been met, the CFA had failed in its positive obligation to act in a proportionate manner towards the mother and her daughter.

The solicitor contended that
• The CFA’s assessment of the mother’s capacity was incomplete.
• The CFA’s application for a care order for two years was premature.
• The care order suggested by the CFA has not been shown to be the least minimal interference available in the mother’s personal and family rights.
• The CFA was overly reliant on the unit’s assessment. The lack of capacity of the mother as outlined by the unit was an unfair and inappropriate standard to be applied in this case. For the mother’s rights to be respected and vindicated in these proceedings the correct standard to be established was whether or not the mother can adequately parent her daughter at home with sufficient and appropriate family support services.
• Without the specific parental assessment and without the chance of parenting her daughter at home with supports which enhance her strengths the mother was being discriminated due her disability; being treated unequally with other parents, before the law; and is not being afforded a fair trial.
• The CFA have not fully considered all options completely and fairly thus they have not sufficiently established that they had no other alternative but to institute the section 18 proceedings.
• The CFA have not established their action to institute section 18 proceedings were necessary and proportionate.
• The CFA should not have commenced the hearing of section 18 proceedings without affording the mother a specific strength based assessment and thereafter the opportunity to parent her daughter at home with supports.
• The Court must at all times act in a constitutional manner (Coughlan -v- Pattwell [1993] 1IR 31), and in compliance with the ECHR.

CFA Position
The CFA contended that, in this case, they have met the threshold required for a care order under section 18 and that the two year care order sought was proportionate.

The CFA stated a threshold must be met before a court can make a care order and that the burden of proof lay on the CFA and the standard of proof is on the balance of probabilities. Any threshold must be proportionate insofar as it goes no further than what is strictly necessary to ensure the welfare of the child in question. The court must be satisfied that a less interventionist order, such as a supervision order under section 19 of the 1991 Act, would be insufficient to protect the health, development and welfare of the child. Citing Child and Family Agency -v- RC [2017] IEDC 02, the CFA said even where the threshold has been reached the court must consider the issue of the proportionality of the order granted.

The CFA cited CFA v HL & KL [2014] IEDC 20 and said the court must balance the rights of both the mother and daughter to live as a family on the one hand with the State’s legitimate right to intervene in the best interests of the child to secure her welfare on the other hand. In so doing, the best interest of the child remain the paramount and overarching consideration.

The CFA set out its legal strategy making reference to its obligations under sections 3, 4, 16, 18 and 24 of the Child Care Act 1991; under Article 41.1.1 and Article 42A of the Constitution of Ireland. It cited Irish case law including Re Article 26 and the Adoption (No. 2) Bill 1987 [1989] IR 656; Murray v Ireland [1985] IR 532; North Western Health Board v W (H) [2001] IESC 90; and FH v Judge Staunton [2013] IEHC 533. The CFA cited a number of District Court judgments. The CFA also acknowledged its obligations under Article 8 of the European Convention on Human Rights (ECHR) and its jurisprudence uphold the right to family life and that an inference with this right must be not be arbitrary and must be lawful.

Two Year Order: The residential unit recommended a care order until the child reached 18 years but the CFA chose to seek a two year order. This shorter time frame would allow for on-going review and possible reassessment of the situation while also ensuring that the child’s safety is protected throughout that period. It would ensure the CFA was ECHR Article 8 compliant.

The judge asked if there was a prospect of change leading to a remedying of the mother’s difficulties over the course of the proposed two year care period. The CFA solicitor said: “You are damned if you do and damned if you don’t”. She said the CFA believed it was not proportionate at this stage to seek a care order until the child reaches 18 years given her young age. The CFA solicitor said the mother’s disability diagnosis was not likely to change but what would change is the child herself, she would be three years of age, verbal, mobile and attending childcare at the end of the proposed two year care order.

The CFA said they were not ruling out reunification and would continue, as is its obligation, to consider reunification where possible, safe and shown to be in the child’s best interests. They cited three cases from the European Court of Human Rights (ECtHR) in which the State was found not to have breached Article 8 of the ECHR which guarantees the right to family life. In R & H v United Kingdom the court held that “Article 8 does not require that domestic authorities make endless attempts at family reunification; it only requires that they take all the necessary steps that can reasonably be demanded to facilitate the reunion of the child and his or her parents”. In V v Slovenia the court found no violation of Article 8 on the basis that “sustained efforts were made on the part of the authorities to facilitate contact and possible family reunification, and that the situation was regularly examined to see whether there had been any improvement in the family situation”. Similarly, in Jovanovic v Sweden no violation of Article 8 was found as efforts were made to keep the case under review, involve the applicant in decision-making and to facilitate contact.

The CFA said a two year order would also allow the present situation of access with the mother and extended family to continue (twice weekly). The bond between child and mother would be supported and nurtured. The foster carer and mother had a positive relationship and the foster carer was open to facilitating further contact outside of scheduled access and for the mother to attend medical and developmental appointments.

The CFA said: The respondent rely on Saviny v Ukraine as an authority for the proposition that there must be sufficient and relevant reasons for interference in family life and the fact of a parent having a mild intellectual disability does not suffice without evidence to the contrary as to a specific risk or danger. The CFA differentiated this case from that of Saviny v Ukraine by the fact that the evidence to the court was “sufficiently subjective”, the CFA demonstrated “clear risks and dangers” to the child’s health and welfare if she was to be returned to the care of her mother and the risks did not arise solely by virtue of the mother’s mild intellectual disability but as result of a variety of factors, including the lack of a stable relationship with the father, the lack of understanding by the mother’s family as to the level of supported required for her to date, in addition to the impact of the mother’s disability on her capability to parent effectively in the community.

Proportionality: A broad discussion took place on how to assess if the State had acted proportionately towards the family, in line with the obligation set out in Article 42A of the Constitution. The respondent’s solicitor argued the effect of Article 42.A was that the mother “is entitled to the Constitutional presumption that her daughter is best placed in her care and that the State through the CFA can only interfere in exceptional circumstances and only by proportionate means.” The parties agreed that the onus on proof was on the State to show their actions are proportionate and ECHR compliant, as opposed to an onus on the respondent to show it to be disproportionate.

It was noted that since the amendment passed into law the phrase “by proportionate means as provided by law” had not been defined by statute or by legal authority. However, the respondent’s solicitor said the term proportionate had a clear meaning in European law and the superior courts had accepted it was an essential principle to be considered when assessing compliance with Article 8 of the European Convention on Human Rights. He said Pullen v Dublin City Council (No 1) [2008] IEHC 379 found the Article 8 proportionality consideration had four constituent elements: being legitimate aim, rational connection, minimal impairment and overall balance. The respondent’s solicitor said the CFA action in this case failed the rational connection test, the minimal impairment test and the overall balance test.

The respondent’s solicitor also referenced the Dáil Éireann debate of 25 September 2012 on Article 42A in which Frances Fitzgerald (the then Minister for Children and Youth Affairs) stated the new changes would:

strengthen the protection of all children by putting their safety and welfare at the centre of decision making ………by reaffirming and underpinning the State’s continuing development of early intervention and family support services to protect children in their homes.

Fitzgerald cautioned that this approach must be:

proportionate to the harm or risk to the child that needs to be addressed. This means that a child will only be removed from the care of his or her parents when there is no alternative option which can protect his or her safety and welfare

The Dáil debates on Article 42A were clear, if the State failed to provide early intervention then it was in breach of Article 42A and its actions were unlawful. The respondent’s solicitor cited Mr Justice Humphrey’s decision in A and Other v the Child and Family Agency in which he states that a care order “can only be made where the supports or other assistance would be not sufficient so as to remediate the situation”.

To be compliant with the proportionality test, the respondent’s solicitor said, the State must do two things. First, it must carry out a proper assessment of the parent and secondly it must consider what supports it might give and if such supports were fair and reasonable. The solicitor argued that the CFA had not provided a proper assessment of his client. In addition, despite the State being aware of my client’s mild intellectual disability, it had done nothing to support her to parent her child. The only step taken was to arrange an assessment in the residential unit.

He said while there is “no question of an open cheque”, it was clear from ECHR case law that the State must provide appropriate measures so sufficient support can be given. The solicitor noted that there was no state policy on what level of support would be considered sufficient. There was also no policy or funding stream to support parents with mild intellectual disabilities to parent their children.

The CFA must act proportionately at all stages of engagement with the family, said the respondent’s solicitor. This included the point at which an initial decision was made to intervene in the family, to place a child in care, to apply for a care order application, and even when the threshold has been met the court had to consider the proportionality of the order and how that order would be implemented.

Disability: The respondent’s solicitor also set out that the mother as a person “with a mild intellectual disability is entitled to the constitutional and statutory protection of not being discriminated on the basis of disability.” The mother, as a respondent in the proceedings, is entitled to the constitutional protection of equality before the Law (Art 40.1) and to the constitutional protection of right to a fair trial. He also cited the mother’s rights under the Convention on the Rights of Persons with Disabilities and the Disability Act 2005. The court was informed that from the statistics of the Child Care Law Reporting Project there was a higher risk of a child of a parent with a disability entering the care system. The judge noted the lack of capacity on the part of a parent with a mild learning disability was a widespread issue and that there were a number of such cases currently before the courts.

Assessment: The respondent’s solicitor argued that an essential question that must be determined was whether or not the assessment of the support that the mother would require to enable her to parent her daughter was sufficient. The findings of the unit’s assessment were not in dispute. However, the respondent’s solicitor raised concerns about the methodology (the focus). He said the unit’s assessment was child-centred it focused primarily on whether or not the mother could adequately parent the child.

It did not specifically assess what the mother needed to parent her child, her strengths, what gaps exist and what she practical supports she would require to enable her to parent her daughter. It did not assess in a fair, cumulative and comprehensively manner how the mother’s needs could be supported fully or partially by her family: what family support was available to her and the child. He said there was a duty on the State to show that the assessment was not just centred on child’s needs but that it was also carried out in a non-discriminatory way to have strengths fully assessed. The solicitor said a better assessment would give the court far more information and would allow it to make a fair decision.

The judge said: “I can’t invent assessments, I need to take what is before me. What is before me is that [the mother] cannot look after her child without significant support.” While the solicitor agreed with this statement, he argued that the unit’s assessment was for a specific purpose and was flawed as it did not deal with the State’s obligation to not discriminate against people on the basis of her disability. The assessment completed by the unit applied the same principles in all cases and employed a child-centred approach. The unit adapted its generic parenting plan to take into account the mother’s disability. The respondent’s solicitor argued instead the unit should have developed a specific parenting plan for the mother and assessed her against that.

The respondent’s solicitor argued that the assessment was flawed. He said the unit did “as a good a job as they could but it was the wrong job so my client’s rights were not vindicated” and so it was not permissible for the court to make an order. The judge said based on the evidence presented to date he was unable to make a finding of fact on whether or not the assessment carried out was sufficient, “I need evidence that [the assessment] is substantially flawed.” The judge asked: “There is evidence that [the assessment] could have been better, but is it insufficient?” and he posed the question what should be done if it was accepted that the assessment was “flawed but sufficient”?

The question was raised as to whether or not the court could grant a care order in circumstances where it was found that the CFA had not complied with its constitutional obligation on proportionality, and if granted would such an order be considered unlawful and thus invalid.

A discussion took place on whether a question from this case could be stated to the High Court and the respondent solicitor handed into the court a list of proposed question for consideration. The judge commented that if this was to be done, the High Court would require findings of fact, noting: “I’m short on facts.” He requested the CFA and respondent’s legal representatives to work together to identify issues that were not vexatious that could lead to the court making a findings of fact. It was agreed that an audio record of the DAR would be released to allow the parties isolate the evidence of relevant witnesses in relation to whether or not the assessment was sufficient, took proper account of the mother’s disability and the recommendations made.

In late 2017, the judge made several extensions to the ICO and adjourned the care order application to the same date. In early January 2018, the court made a six month care order in respect of the child. In addition, the judge stated a consultative case from the District Court to the High Court with respect to the extent the District Court can direct services and supports under section 47 of the Child Care Act 1991. A date for a High Court hearing was being sought.