Interim care order extended amid questions on paternity – 2023vol1#21

There were two applications before the court in relation to one case involving very young siblings: an application to extend the interim care order (ICO) by 28 days and a question as to paternity based on DNA results.

In late 2022, the Child and Family Agency (CFA) brought an application before the court to extend the interim care order. The court was informed that the mother was consenting to the extension, however the purported father had provided no instructions to his legal representative.

The second application was brought by the CFA under section 47 of the Child Care Act 1991. This was to remove the second-named respondent from the proceedings as a question concerning paternity had now arisen. The lawyer for the father told the court that if the application was proceeding he would be making submissions as he felt the application was brought incorrectly. He said the CFA should bring their application under the District Court Rules and not under section 47.

The court was informed that although the second named respondent (purported father) had been engaging fully with social services to date and was on a journey towards family reunification he had not been able to fully instruct his legal team on this issue and therefore they would be asking the court to adjourn the matter along with the ICO.

The court was told that mother had identified another potential person who could be the father of the children.

The legal representative for the father said that whilst section 47 was a very wide and all-encompassing provision it should not be used in this instance. In addition, he said there was nobody in court to provide the evidence of the results.

The judge said he could not unsee test results that were before him on the screen and he asked “why are they on my screen?”. The lawyer for the father said that this was a live and ongoing issue and he said that the consideration of his client’s status should be held over.

The CFA solicitor told the judge they were not going to move the application today to remove the second named respondent from the proceedings and sought a two-week adjournment.

A question also arose that the potential other father was now entitled to be on notice of the proceedings.

The mother’s lawyer said she was consenting on a without prejudice basis to the ICO being extended for 28 days. She also said she was supporting the views of the father’s lawyer. She said he had been involved in the children’s lives and was not a stranger to them. The mother wanted him to continue to be in their lives and he had been involved in the journey to reunification.

The CFA made a point that there were constitutional implications in that the Act provided that the parents should be the respondents as per the constitutional set up. The judge agreed there were constitutional implications.

The judge extended the ICO for a further period of 28 days. He adjourned the section 47 application until later in the month. He gave liberty to the CFA to bring another application if necessary.

Subsequent hearing

When the case resumed the CFA indicated to the court that they were looking to extend the ICO in respect of the children. In addition, there was a section 47 application before the court looking to dispense with the mother’s consent regarding paternity testing.

The mother was legally represented as was the guardian ad litem (GAL).

The mother was not present in court and the solicitor had been unable to get in contact with her. Her lawyer told the court it was unusual for the mother not to be present in court as she usually provided instructions to her legal team.

The court was told that the mother had been clear four weeks ago regarding the father of the twins and the application before the court to remove him from proceedings. In addition the mother had identified who the potential father was. The court found it unfortunate that the mother was not in court on this occasion.

The GAL was supporting both the ICO extension and the application for a full Care Order and the section 47 application. The purpose of the section 47 application was to obtain paternity testing.

The social worker had prepared a report which was handed into court. The social worker gave evidence that there had been a long history of concerns around neglect, there had been dangerous incidents and allegations of child sexual abuse and concerns regarding the capacity of the mother to care for the children.

During the previous month the mother had had three scheduled access visits, however she had attended only one and had missed the other two.

A paternity test had previously been conducted but the result had not been as expected and the social workers were planning to have a further paternity test carried out on another male identified by the mother. This test was planned to take place before the next court date. The potential father would take a test as would the children.

Evidence was also given by the social worker that it had been explained to the mother that it was in the best interests of the children to know their paternity and it was important to establish it. The mother had also been told on several occasions by the social workers why it was important.

The social worker reported that the children were doing well, were taking notice of their surroundings and were enjoying the environment in their foster home.

The GAL gave evidence in respect of the children’s wellbeing and said they were still very young and therefore currently non-verbal. They were up to date on vaccinations.

Access had been decreased for the mother but that any access she had attended had gone well and she had been actively interacting with the children.

The GAL said that the mother had been very clear as to why she was objecting to the paternity testing – her relationship with her ex-partner is very difficult.

The GAL was supporting the section 47 application to dispense with the mother’s consent.

The ICO was extended for a further 28 days. The judge said he had heard the evidence regarding the section 47 application. He noted the mother was not present but dispensed with her consent on the basis it was in the children’s best interests.

The full Care Order hearing was fixed for March.