Interim Care Order for baby refused when Emergency Care Order expired – 2014vol1#1

A District Court in a rural town refused to grant an Interim Care Order for a 10-day-old baby, B, where previously an Emergency Care Order had been granted by a different judge in the same court.

The parents had unsuccessfully challenged the ECO in the High Court, and the case was under appeal to the Supreme Court, but meanwhile the ECO was about to expire and the case came back to the District Court as an application from the HSE (since January 2014 the Child and Family Agency) for an Interim Care Order.

At the outset senior counsel for the mother asked for an adjournment of the proceedings, as the case was before the Supreme Court. Counsel for the HSE pointed out that when the ECO expired the child would return home, as there would be no order under which he could remain in care.

A discussion took place as the whether the parents might consent to an arrangement whereby the child would remain in HSE care pending the hearing of the Supreme Court appeal. However there was no agreement on this and the ICO hearing resumed.

Senior counsel for the mother outlined the circumstances of the case. The couple had been together for seven years. They married about a week before the birth of the child. The father had previously been married to a woman who suffered severely from mental illness and who had died. He had separated from his wife and moved abroad and his two children from this relationship were taken into care. The mother had a daughter from a previous relationship, child A, who was about 10 when the couple met.

Two years after the couple got together an incident occurred involving A, where there was an allegation that she was punched by the father of the baby, resulting in A being taken into care, initially in the care of the mother’s brother.

These matters were relevant to the current proceedings involving the new-born baby of this couple, the counsel said. They had written to the HSE asking for any relevant documentation relating to those cases.

“I don’t think there will be any disagreement from the parties that to take a new-born from a mother is a very harsh remedy, the threshold is extremely high and the evidence must be extremely compelling,” said the mother’s senior counsel. “She must not be in a position where she is faced with a battery of professional witnesses, who carry all the grativas that goes with such qualification and experience, recounting in many cases events of many, many years ago, the last one of them not even in any way directed at her.”

He said they were seeking an adjournment of the Interim Care Order hearing, and a Supervision Order was also a remedy.

The father’s barrister said the father had never been prosecuted for the alleged punching of the girl, which he denied.

The judge said: “Unless I am persuaded that there is an immediate and imminent danger to the welfare of the child, having heard all the evidence, this court will take the view in those circumstances that a Supervision Order would be the sensible road to go down. But that’s without prejudice. If the evidence was to disclose immediate and imminent danger, such that no court could responsibly take the risk that the child might be in some way in danger, those are the kind of cases where the courts grants a Care Order.”

Social work evidence

The case then went into evidence and the social worker told the court that the social work department became aware that the mother was pregnant in May, when she told her daughter, who was in care, during an access visit.

The social work department received a referral from the maternity department of the local hospital when the mother was 29 weeks pregnant. The father had left a message on the hospital answering machine saying that the mother would not attend the hospital as they feared the HSE would take the baby.

The social work department then visited the parents and expressed the HSE’s concerns about their parental capacity. These were related to the fact that the father’s two other children had been taken into care arising out of their mother’s mental health difficulties. He had sought custody of the children, but had not been granted it because he did not engage with the social work department’s parental capacity assessment. He had not been living with the children because of his estrangement from their mother. The HSE barrister asked the social worker if there had been a barring or a safety order against him from his then wife.

The social worker said there had, but said she could not produce it.

Judge: “You’re blaming him because of [his wife’s] mental illness, saying he couldn’t have meaningful relationship with his wife who was mentally ill, therefore he’s to blame.”

He asked if there had been any criminal prosecution of the father for assaulting his wife, and the social worker said ‘No’. The father had then gone abroad.

The social worker referred to the evidence she had given for the Emergency Care Order, based on her pre-birth assessment of the couple, which had taken into account the fact that both parents already had children in the care of the HSE. She said the first concern she had was the complete dominance the father appeared to have over the mother.

The mother underwent a cognitive assessment by a senior clinical psychologist in September, which identified low cognitive functioning, meaning she would be less able to overcome the dominance of the father. When her first child was born she had lived with her mother, who had helped her.

She said that during the meetings the father was “obstructive, abusive and aggressive”. He did not take on board any concerns about his parenting capacity and made it clear he did not wish to work with the HSE in addressing them. “I have concerns that the child would be at risk of physical and emotional abuse. I have concerns that [the father] has made it clear he will not work with the HSE in order to safeguard the child, we have no avenue to protect the child at home.” She was concerned that the mother was completely dominated by the father and not in a position to protect the baby.

The mother had two hours’ access a day with the baby. The judge asked how could a natural mother have a bond by only seeing the child for two hours a day and feeding him during that time.

Outlining the time-line of the case, the social worker said she spoke to the mother for the first time in early July.

A child protection plan had commenced on June 21st as the father had said he would not bring the mother to hospital if she went into labour.

The mother’s senior counsel said she had not even met the parents by June 21st, and in the child protection plan the social worker had written that if the mother was to attempt to leave the hospital with the baby following the birth an Garda Siochana were to be rung. He said the HSE did not have an open mind on the case, though they had not met the parents.

The social worker admitted that the parents had come across the hospital file with the letter saying the baby was not to leave the hospital with the mother. She confirmed she had made this decision without any reference to the parents.
The mother’s senior counsel said the father was expressing a fear that his unborn child would be removed before he and his partner had a chance of rearing it. It was natural for a parent to want to protect his child and a parent’s greatest fear is of a child being removed. When he rang the hospital [after learning of the child protection plan] he was expressing his fear.

The judge read from the child protection plan and commented: “What you were saying there bluntly was, it would be called in South African law preventive detention under the apartheid regime, that’s exactly what you were doing.

“I have to put it to you, and you’re under oath, that you decided straight away, that this child is never ever going to be allowed to go out of the hospital with her mother and father and go home. And that you had no intention in the wide, wide world of considering a supervision situation when this child protection plan was hatched.”

The social worker said this was not the case and the judge asked why a Supervision Order with stringent conditions was not considered. She said that in the absence of an assessment they had to consider what was safest for the baby at the time.

The entry of the mother and baby into a mother and baby unit had been considered, but when the mother married the father it was felt that he would be involved in parenting the child and this unit was no longer an option. The social worker said the mother was not seen as a protective factor.

Mother’s senior counsel: “You had formed the view she wasn’t a protective parent and therefore shouldn’t have her baby and [the baby] coming away from her as soon as it could be done was in the interests of the baby.”

Social worker: “It was to say that legal advice should be sought upon the birth…”

Mother’s senior counsel: “On the basis that you have a closed mind, you think he’s a rotten partner, you think he’s very difficult to put up with, and because he won’t engage with you because he deeply distrusts you, you can’t see it in any other light.

“Do you not think it unusual that he had no previous convictions if he was as unreasonable and acrimonious as you make him out to be? Also, he does not drink. He turned up at meetings with people to assist him, one a pastor who was also a medical doctor, after the 21st June and he [the pastor] was refused entry.”

The HSE barrister said the pastor could not attend the meeting as he was not a party to the proceedings.

Mother’s senior counsel: “Do you not think that destroyed any element of trust, even before you met them on July 3rd, that on June 21st you were of a mind-set that the decision was already taken?”

Asked by the judge why they did not seek a Supervision Order, the social worker said that it would not be an adequate protection because it was not 24/7. They had concerns about the mother’s capacity to parent the baby on a 24-hour basis, and about the father’s abusive and aggressive behaviour, which also manifested itself in relation to his own children who stated they did not want to have access with him due to his aggressive behaviour.

The judge: “Would you accept that if he hadn’t any relationship with the two children that were taken into care when he was [abroad] because they were very young at the time, that there was no bonding relationship and perhaps then when they went into a foster home and he was not involved it was rather like meeting a stranger and it’s very difficult in that situation to have a meaningful relationship?”

Social worker: “I feel what took place in access went over and above these difficulties.”

She said the social work department tried to work with the father on these issues and he had not engaged and made it clear he did not wish to.

A Garda gave evidence of a protection order and barring order being sought against the father by his first wife nine years earlier.

Evidence about the older child

The evidence then turned to the circumstances concerning the older child, A, being taken into care. Following the alleged punching incident she went into a voluntary care arrangement with the mother’s brother. According to the social worker there were concerns that the mother was not taking the punching incident [by her partner] seriously enough.

This placement broke down when the uncle hit the girl on the head with a plank and the HSE applied for a full Care Order. The social worker told the court it was difficult to have regular contact with the mother at that time, so A was not returned to her.

The mother’s senior counsel read out a letter from the solicitor for the girl’s guardian ad litem (GAL), which expressed very serious concerns about the girl having been placed in the care of her uncle, against whom credible allegations of sexual abuse had been made. His wife denied the veracity of the allegations, which undermined her ability to police the situation and protect A.

Senior counsel: “Here’s what was established beyond any doubt: that there was an allegation made against [the brother], that it was assessed, it was deemed to be credible and that you and your department were actually made aware of it. And the response which was achieved in this letter sets out how you dealt with it in the following terms: ‘An assessment was made by the Child Protection social team that it was in A’s best interests to remain with her aunt and uncle under the agreed supervision of her aunt.’

“So when you’re told about the risk you don’t say, ’oh look, we can’t possible keep this child here where there’s some risk which has been assessed as actually credible’. You say, ‘no, we’re quite happy to take the risk’. As it turns out yer man hit her over the head with a bit of wood. What I want to know is how the whole process operates and now you’re in court saying this fella [B’s father] may have punched her in the stomach and we can’t risk anything. How is that approach to be reconciled?”

The judge commented: “Compared to the assault perpetrated on [A] by [the uncle] and his misbehaviour and his misdeeds, [the father and mother] were not in the same league.”

Social worker: “What I would say is in our department’s experience [the mother] on her own has been more open to child-centred decision-making.”

“She prioritises [the father] over the child and you’re afraid that B would be at risk because of that. Is that it?” asked the judge. The social worker acknowledged that the mother was very loving and would not deliberately harm her child.

“So really the nub of the matter is [the father]. If he was out of the equation I feel I’d be talking about a Supervision Order with very strict conditions,” the judge said.

Team leader

The team leader was recalled and the judge put this question to her. She agreed but added that the mother did not have insight into the concerns the social work department had concerning her husband. The team leader felt he was domineering and would dictate to his wife in whatever she tried to do.

The HSE barrister said if the judge refused an Interim Care Order and was minded to grant a Supervision Order he felt it would only be enforceable if the father agreed to absent himself voluntarily for a defined period.

Mother’s evidence

The mother gave evidence of rearing her older daughter while living with her parents in the family home. While her mother “was there when I needed her” she had brought A up on her own. She also cared for her mother following her diagnosis with cancer until her death two months later.

She met the father of the baby at the centre of these proceedings seven years ago. Asked if he was domineering, she said: “I can stand up to him when I want to, but he’s not a violent person.” She said he had never hit her.

“He told me if he ever hits me I’m to walk away and not look back and give him a second glance. I was in violent relationships before and I know a violent person.”

Asked about the incident where he was alleged to have punched A, she said: “If I thought [the father] hit my daughter, the first thing I’d do is get away from him and stay away from him, I wouldn’t stay with him as long as I have.”

She acknowledged that the attempts by the HSE to engage with the couple had not worked and accepted that they had a job to do in keeping a handle on how the baby was doing, especially in the early months. She said she was prepared to do whatever was necessary in this regard.

She said she had no contact with her own family because she was afraid of them. They had threatened her before her mother died. Asked what they threatened her with, she said: “They told me if I told anyone about my past I’d be dead.”

Judge: “What did they mean by your past?”

Mother: “Because I was sexually assaulted when I was 13. And I was told if I told anyone I was dead, by me three brothers and sister.”

Judge: “When you were sexually assaulted when you were 13 years of age, was that by a family member?”

Mother: “Yes.”

She added she had been assaulted by a brother. After her mother’s death her relationship with her father fell apart, as he took the same view [of the assault] as her siblings.

She made a complaint to the Gardai, but they closed it because it was “a family matter” and they could not get involved.

She said B’s father was not living in the family home at the moment, though he had been there the previous night as there was access with the baby at 8 in the morning and she had to be brought for access. They also saw each other at church on Sunday and met on Tuesdays. Asked why they were not living together as husband and wife, she said: “Because we agreed to do it that way.”

Judge: “So you’re asking me to believe that first of all you’re married to this man, you love this man, and that you have an unusual arrangement that you meet at church on a Sunday and you meet on a Tuesday and you don’t live as man and wife under the same roof, is that the position?”

Mother: “Yes.”

As she was being cross-examined by the HSE barrister, her senior counsel interjected to object to the framing of the questions, pointing out to the judge that a psychometric test had shown the mother’s verbal reasoning skills were within the extremely low range, with 99.5 per cent of the population having a higher ability in this area. This made it difficult for her to deal with questions containing multiple clauses. The psychological report said she sometimes said she understood things when she didn’t understand them. She had scored much better in other areas.

The judge said he wanted her capacity to parent a child, and the issue of the alleged domination of her by the father, to be addressed by the HSE barrister.

The HSE barrister put it to her that she was still living with the father and had discussed the case with him, and he had told her it would be better if she said they were only seeing each other twice a week. She said this was not true.

She denied that her daughter, A, had gone into care because she was assaulted by the father. She said she had gone into care because she [the mother] had been assaulted by her brother, with whom she was living, as she [the mother] was thrown out of the family home and had moved in with the father of B, contrary to her family’s wishes.

“I tried to get a place of me own but me family took her and said to stay away from [A].”

The judge said her family could not take her child from her, she was the mother. “Why did you not stand up for your child and say, ‘you’ll do no such thing, keep your hands off my child, I’ll rear the child’?”

Mother: “I did say that but I got punched in the face by my brother.”

The judge asked her if this was the same brother who had sexually assaulted her, and she replied that it was. She said her father was afraid of him as well, he had broken their father’s nose.

Asked why therefore she had not gone to the Gardai and say there was child abduction, she said she did, but the Gardai did not want to get involved. The judge said he did not believe this.

After a brief adjournment her senior counsel said that the solicitor had managed to get a letter written by A’s guardian ad litem, setting out the chronologies and complaining that the HSE had knowingly placed or acquiesced in the placing of a child in the house of a person against whom it found a credible claim of sexual abuse had been made.

The senior counsel read out the GAL’s letter, which said: “It is our view that the events of 3rd March 2009, just six weeks into a placement which was to last some 13 months, demonstrate that the social work department was not only actively supportive of quote ‘the private family arrangement’ close quote, but was in fact instrumental in its maintenance. On 3rd March 2009 [the mother] (who is sitting here) made a complaint to an Garda Siochana that her daughter was being held without consent by [her brother].

“From what can be gathered from the records of the social work department it appears that this complaint led to the Guards visiting the home of [the brother and his wife] to remove [A] under Section 12 of the Child Care Act 1991, (that’s the emergency provision that says you have to grab a child even without the intervention of a court). It appears further that when the Guards contacted the HSE, as that section obliges them to do, the HSE out-of-hours service arranged to have [A] returned immediately to the home of [the brother].”

The senior counsel said that they could have lost their case had they not obtained this letter, which was not furnished to them by the HSE, as it should have been. This meant that the HSE’s own counsel was pursuing a line of cross-examination that was contradicted by documentation in the hands of his client, on which he had not been briefed.

The judge said: “This is incredible.”

The senior counsel said the HSE had in its possession documentation showing “that the lady did actually make a complaint, furthermore we [the HSE] brought our influence to bear to put the child back in with [the brother] and thirdly we never mentioned this incident in any report we brought before the court and four the guardian ad litem was so outraged by this behaviour they wrote a letter on the record indicating that this could not have been an accident, accusing the HSE of covering it up, in effect.”

Judge: “It’s shocking.”

Cross-examined by the solicitor for the father, the mother said again that she did not see him hit her daughter. Asked about the difficulties in the relationship between them and HSE staff, which she had acknowledged, she said that the father was very calm around other people.

The judge said he had heard evidence of him behaving “in an outrageous manner” with HSE staff, leading to the gardai being called on one occasion. He said the public health nurse, who struck him as a very level-headed individual, left the court in no doubt that the man was acting out of control.

“He gets angry because he gets intimidated by the HSE,” the mother replied. “He never loses the head with anyone, he’s real calm and he’s relaxed with other people around him.”

Father’s evidence

The father told the court he didn’t get on with the HSE because they were “intimidating and bullying”. He said the incident which led to the gardai being called happened when the social worker pulled the baby out of his hand. “They make me feel like shit. They basically treat me as if I’m dirt.”

He said he and his wife were living apart because the HSE did not want them together.

He said the HSE had been bullying him since the case of his late former wife, who had serious mental health problems. “They’re always pushing my buttons to get a reaction.”

Judge: “But you see, if you didn’t react, what would happen?”

Father: “I suppose they wouldn’t have nothing to say.”

The judge told him that if he persisted in his stance that he would have nothing to do with the HSE or discuss anything with them concerning the child, he left the court with no choice but to grant an Interim Care Order or a Care Order. “It would be a different attitude if you were to fully cooperate with the HSE in every facet of the looking after of this child, you would then give me an option of a Supervision Order with very strict conditions.”

He said he loved his child to bits and did not want the court to make a Care Order.

Judge: “Well, how can you convince me that it’s safe for me when I make a decision to grant a Supervision Order subject to the most stringent conditions and those will require you to act like an altar boy. Are you capable of acting like an altar boy?”

Father: “I am, your honour.”

His barrister asked him if he would consider a course to help him deal with his emotions and how to deal with adverse difficult situations when people started to press his buttons and he started to get annoyed. He said he would.

Barrister: “Would you do whatever it takes essentially to have yourself, your wife and your child at home in your house, with you, a peaceful life.”

Father: “That’s all I want.”

The barrister said he had no previous convictions or anything to suggest he was a danger to anyone, let alone a child.

Asked about the fact that his previous wife had obtained protection and barring orders against him, he said she was mentally unwell, she had breakdowns and was bi-polar and would seek the orders. When she was well she would ask him to come home. He eventually moved out in 2004 when she was sick.

The judge asked him why he went abroad and did not seek custody of his two children of this marriage. The father said the HSE were bullying him so he went abroad. The judge said the court was then left with no choice but to put his children into care. The father said he had not been given a chance to be a father and the HSE were saying he lacked parenting skills.

Judge’s ruling

Giving his ruling, the judge said he had to be satisfied on the balance of probabilities that there was a real and imminent danger to the welfare of the child.

He said it was clear from the evidence that the HSE had attempted to engage in a proactive way with the parents in relation to parenting skills, pre- and post-natal matters. It was also clear that the father behaved in an utterly irrational manner in totally refusing to engage with personnel of the HSE to such an extent that the HSE could not provide a plan which would secure the safety of the child.

He said he had to take into account the responsibilities and capacity of the mother and the role of the father.

Referring to the mother, he said that while she was at the lower level of cognitive intelligence, she was not so dysfunctional as to be incapable of being a good mother to her child. He was satisfied that with adequate supports and supervision by the HSE she would be in a position to rear her child and would be a very good mother. It was not a figment of her imagination that at 13 she was cruelly raped by a sibling and that had a traumatic effect on her. Her kindness was demonstrated by the fact that she nursed her mother during her terminal illness.

“She seems to be a lady who has a positive attitude, she is of quiet disposition, she is a kind person, she is a gentle person and is a loving person,” he said. “If it were the case that [the father] was not in the picture, I would have ended this case long ago today and granted a Supervision Order with conditions.”

He added that wrong choices were made by the HSE at the time of her daughter being taken into care. It was breath-taking that the child had been handed back to the brother. It should not be visited on the mother what happened to her daughter. Others were to be blamed for what happened to her. There was no suggestion that she was other than a good mother to her daughter up to the age of 12, when she was taken into care.

Turning to the father, he said in his view he had serious psychiatric problems, not just psychological. “[He] is at war with the world. He has had a difficult time,” he said.

He said he accepted that the father meant well in his relationship with the mother and she genuinely believed he was a good person. But he had a very domineering personality. He had a fixation with the HSE which had blighted his intelligence, thought and judgment to the extent that he seemed incapable of putting the interests of his son first.

He said he was faced with a dilemma – was it fair that the mother, who deserved the chance to rear her son with support, was, because of the actions of her husband, facing a Care Order application for the second time in her life. “This is one of the most difficult cases that I have ever had to deal with in 14 years on the bench.

“I believe that whilst this court shares deeply the concerns of the HSE, that if the court were to grant an ICO the chances of [the mother] being reunited with her child at this stage would be greatly minimised in that it is greatly difficult for her to bond with her child.

“The court believes that [the mother] deserves a chance.”

He said the matter could be resolved by a road map with non-negotiable conditions.

These would be that the father would have to attend anger-management, attend for psychotherapy and one-to-one counselling. Under no circumstances would the court tolerate him losing his temper with anyone, be it members of HSE staff, personnel or others who would be involved in a Supervision Order.

If the father breached these conditions the HSE should immediately bring the case to him wherever he was sitting.

He said he was refusing the Interim Care Order and granting a Supervision Order under the above conditions.

The barrister for the HSE said that in circumstances where the ICO had been refused, and only in those circumstances, he was inviting the court to make the Supervision Order under the conditions outlined by the judge. He said the HSE wanted to add the conditions that the couple cooperate with daily home visits by the social work staff and/or public health nurse staff. The mother had to attend her GP and mental health services and both parents had to participate in parental assessment by the social work team. The child should attend his GP or paediatric consultant for assessment as required by the HSE.

When the case came up for review two months later, the solicitor for the Child and Family Support Agency said that the agency was seeking an adjournment of its application for a Care Order, and was not seeking a renewal of the Supervision Order.