See follow up Vol 1 of 2018: Judgment awaited three months after care order hearing concludes
See also Vol 2 of 2017: Allegations of sexual assault at the heart of care order hearing for three children
See also Vol 2 of 2016: Parental access visits denied amid allegations of sexual abuse
The report below outlines three hearings of the same case heard in a District Court in a rural town over a four month period. The case involves three siblings who are currently in foster care. Two school-age children (Child A and Child B) entered care in summer 2014 on the grounds of neglect. Eighteen months later the children made allegations of child sexual abuse against their parents and other adults. Following these disclosures, an Emergency Care Order was granted to take the youngest child (Child C) into care at birth. All three children are in care under an Interim Care Order, as provided for under section 17 of the Child Care Act 1991. At each of the three hearings the parents were present in court, legally represented and supported by translators.
Application to Access Garda DVDs of Child Interviews
In early 2016, An Garda Síochána interviewed Child A and Child B in relation to disclosures of sexual abuse. These interviews were recorded on DVDs. In late 2016, the court heard an application by the Child and Family Agency (CFA) to allow for the sharing of the Garda DVDs with an independent expert (referred to in this report as Expert A), named CFA staff and a specialist transcription service.
The parents were seeking to engage Expert A, a psychologist who is based outside of the State’s jurisdiction, to provide them with a second opinion on the credibility of the sexual abuse allegations made by the children. Counsel for the CFA explained that Expert A needed the DVDs and a verbatim account of the DVD interviews to conduct his review. Counsel further explained that in an unrelated Irish case an error occurred in the transcription of a videoed interview so to guard against such a reoccurrence the CFA wished to check the transcription against the DVD recording prior to the transcription being given to the expert. The parents consented to this proposal.
The CFA was happy for the parents to secure a second opinion and for the DVDs to be provided to the named independent expert. The CFA stipulated that their consent was on condition that the DVDs were kept confidential and not disclosed to any third party, specifically that the parents and their legal representatives would not gain access to the DVDs at this time. Counsel for the CFA acknowledged that the court, GAL and respondents (parents) and their legal representatives would have access to the DVDs prior to the Care Order hearing. However, an application to allow such access would be made at a future point and was not the subject of this application.
The court heard the Gardaí were preparing a file for the Director of Public Prosecutions (DPP) in relation to bringing criminal charges relating to alleged sexual abuse. The application to share the DVDs with Expert A was opposed by An Garda Síochána, who were legally represented in court. The solicitor representing the Gardaí said that the Garda Commissioner had concerns about furnishing evidence prior to the completion of an investigation and submission of the file to the DPP. To support his argument the solicitor cited the 2011 Supreme Court case of McLoughlin v Aviva Insurance. He argued that if the order was granted the disclosure of the DVDs would “compromise the investigation into a very serious case”. The solicitor said the Gardaí needed more time to submit an affidavit to court. Counsel for the CFA responded that they had had ample notice of this application which was lodged nearly two months earlier.
Counsel for the CFA argued that Expert A would need two months to conclude his work and that it was likely to be a similar timeframe before the directions of the DPP were known. In addition, Counsel noted that all of the allegations made by the children in the DVDs had already been put to the parents and the named third parties. Counsel commented that “child care proceedings cannot await the outcome of criminal proceedings”. He said there was a public interest to protect the children from abuse. Counsel noted that there was precedence in that a similar order was made in the District Court in Dublin while a criminal investigation was ongoing. Counsel cited relevant legislation and the 2001 European Court of Human Rights case of TP and KM v United Kingdom to support his application.
The parents, through their legal representatives, stressed their frustration with the length of the care proceedings, saying the parents “can see no light at the end of the tunnel” and noted that case law had been offered that child care proceeding are in the public interest.
The court heard that Expert A was available to begin work in the coming weeks. Counsel for the CFA warned that if there was no decision that day about whether or not the expert could access the Garda DVDs it could not be guaranteed the expert would remain available to undertake for this piece of work. Counsel cautioned that if this happened – and Expert A was no longer available – “we would be in a worse position” and the question of the expert receiving the DVDs would be “moot”.
The judge remarked that it was envisaged that, to a large extent, the interview of a child following disclosures of child sexual abuse should be conducted jointly by the Gardaí and the CFA so as to avoid issues such as those before the court today. Joint interviewing would mean children were not subjected to two interviews by two organs of the State. The Gardaí did not take on board that interviews should take place jointly. The Gardaí conducted their interviews first and so the children were subjected to a second invasive interview, the judge said.
The judge commented that this was a “very serious investigation”. He adjourned the application for two weeks over the Christmas holiday period noting that unless the Garda had a definite answer he would grant the order as requested. At the follow-on hearing two weeks later the judge granted the CFA application to allow Expert A be provided with the DVD recordings and a transcription of same.
At a hearing of the same case three months later, the CFA applied to the court for orders on three matters – an extension to an Interim Care Order in respect of the three sibling children, an application to reduce access with Child C and application to allow Child C to travel outside the jurisdiction.
Application to reduce access and extend the Interim Care Orders
The CFA made an application to reduce the level of access between the youngest child – Child C, an infant – and the parents. Child C had been in care since birth. Since that time she had had access five times a week with the parents. The CFA made an application to reduce this access to twice weekly.
A retired professor of social work [Expert B] with particular expertise in the area of attachment and emotional development gave evidence. She was commissioned to compile an assessment for the case but the focus of her evidence that day was solely on the issue of access. As part of her assessment, she had observed access between the parents and Child C. She described their engagement with the child as of “good quality but very intense … the baby is bombarded by interaction, which is quite overwhelming and tiring, but all right”.
Expert B said that from a developmental point of view a baby from the age of six to seven months begins to develop an attachment with the person or persons the child is seeing on a frequent basis. Prior to this age, it did not really matter who cared for the child once the care was of a good quality.
Looking at the case history, Expert B observed that the probability was that Child C might not be returning to parental care. She said the decision on access must look at whether it was appropriate to build up an attachment which might need to be discontinued. She commented that contact five times a week “is very high at this stage”. She said “to be kind to the child and the parents” what was needed was something that would serve the purpose if the child was returned to parental care. She said access twice a week would serve that purpose because it would keep the familiarity and link with the parents, but five times a week would mean the child would suffer loss if she was not returned to parental care.
Counsel for the CFA said there were two possibilities in relation to access between now and the Care Order hearing in a number of months. Access could be either reduced to two times a week or remain at five times a week. If it was decided that the child was to remain in care he asked which option was worse. Expert B replied that in the first year of life the child’s developmental task is to build an attachment to the people he or she was exposed to.
She believed it was pragmatic and safer to reduce contact with the parents to protect the child from potential suffering if it was decided that she was not to return to their care. The aim was to avoid the child from potentially suffering loss and a discontinuity of that emotional link. The option of access twice a week served the purpose of keeping the child familiar [with her parents] but preventing a very strong emotional link with the parents from developing.
Counsel for the mother asked why the word used by Expert B in her testimony, “bombarded”, was not included in her report. The expert replied that the level of interaction on the part of the parents was them trying to make the best out of the time they had with the child, which was quite understandable from their point of view. However, she noted that the child only had a certain level of energy and concentration and so she fell asleep during access.
She noted that the foster carers reported that the child was very tired after access and it disrupted her routine. The foster carers (who also have an older foster child) were trying to accommodate access as they understood the parents wanted to see the child. However, fewer access visits would be easier for them. Counsel for the mother argued that many families use childcare involving travel five times a week. Expert B replied that this is different as childcare workers do not invest emotionally in the children they are caring for to the same degree as parents.
On foot of questioning from counsel for the mother, the expert confirmed that Child C will form her primary attachment to the foster carers. She said the child seeing the parents twice weekly would not stop her from forming a primary attachment to the foster carers. But she noted that what posed a risk to the child was a high frequency of parental access at this crucial stage of emotional development. She said the child would get more confused and uncertain and the high frequency of parental access would be of no advantage to the child.
Expert B said the question that needed to be examined was: “Is it wise, appropriate and necessary to have that level of contact with the probability that the attachment may be reduced?” She said it risked causing the child “unnecessary pain and confusion through the discontinuing or a reduction” of access. She argued that the child could maintain familiarity with the parents through a much lower level of access and that if the child was discharged back to parental care she would have sufficient familiarity to rebuild and strengthen her relationship with the parents.
The expert told the court that just in case something else was to happen it was wise and in the child’s best interest to address this issue with care given the child’s age and stage of emotional development so she could be protected from possible loss. She recommended the development of a less strong emotional link through the reduction of the frequency of access. She said a step-by-step reduction was the best approach unless it was an emergency situation.
Counsel for the mother asked if she believed the allegations against the parents were true. Expert B replied that she had not been asked to conduct a forensic sexual abuse assessment. However, she said when young children tell you explicit details of sexual activity that, given their age, they could not have experienced themselves, it points to them either having experienced or witnessed it themselves. She said that the children made disclosures when she was undertaking her assessment: “It jumped out from the children… it came naturally for them.”
Expert B denied an allegation put to her by counsel for the mother that the expert had “told the mother the allegations were true and she was never getting her children back”. Counsel asked if she had explored other explanations for the children’s behaviour. Expert B replied that there was no explanation for the knowledge the children had other than that they had experienced it, giving an example of a precise description by one of the children of a sexual act. She said it was “highly probable that it did happen and that it happened as the children described”.
Counsel for the mother argued that Expert B had exceeded her brief and had made findings based on a brief conversation with the children. At this point the judge reminded the parties that the application before them was in relation to access with Child C. He said Expert B was offering her opinion, but the issue of whether or not the children return home will be decided in a different court by a different judge.
Counsel for the father questioned Expert B about the potential impact of discontinuity on the child. The expert repeated that the child had reached an age where she was forming strong emotional links with people she was exposed to and there was a question mark as to whether or not the child would go back to her family. She said there was no disadvantage to the child in lessening the access and that the child must be protected from the possibility of discontinuity.
Counsel for the father commented that there was an absence of permanency in the child’s situation, there was “drift taking place” in this case. He noted that Expert B had conducted research into drift and delay and had identified a link between the duration of cases and permanency of placement. He noted that in the UK cases are ideally concluded within 12 weeks, whereas “we are in the 70th week of this case”.
The judge reminded the parties that 18 to 20 months earlier it appeared we were dealing with a neglect child care case and that it was at a very late stage that the issue of child sexual abuse came to light. Counsel argued the current issue of access would not have arisen if there had not been unreasonable delays in this case. Expert B replied that this topic was not within her brief in this case. She noted that in her report submitted in December 2016 she had recommended an immediate reduction of access for Child C.
The report by the guardian ad litem (GAL) also recommended a reduction in access. The GAL gave evidence to the court that her recommendation was based on what she observed at access on two occasions and her conclusion was that the child was developing disordered emotional responses.
The GAL acknowledged that the mother attended access regularly and on time. She described in her report her observations of a recent access visit at which the child, mother, supervisor and interpreter were present. During the 45 minute visit the GAL focused on watching the child’s facial interactions. The GAL said that the mother worked hard to get a response from the child, she interacted non-stop offering the child one toy after another. She described the access as “quite bizarre to observe”. She said “the level of stimulation was not natural and so the baby started to shut down”.
She commented that the baby’s face showed a “disturbing lack of expression, the baby wasn’t getting time to respond”. She noted that at one point the child handed a toy back to the mother but the mother missed this clue and opportunity to interact as she was too busy. Overall, the baby was giving very few clues for interaction. The GAL told the court that this was “teaching the baby disoriented emotional responses, the child is closing down, she has no emotional face and this is an inappropriate coping mechanism”. She said it was her understanding that the mother had been offered guidance and suggestions on how best to stimulate and play with the child at access but was reluctant to access them.
The GAL’s recommendation was that access should be reduced and she agreed with Expert B’s evidence that the child was unlikely to be returned to the care of the parents. She said legal pressures were influencing the CFA’s application for access to be set at two times a week, her recommendation would be that access happened less frequently. She noted that Expert B also recommended reducing access to a lower level.
Counsel for the mother pointed out that Expert B had said access was of a “good quality”. The GAL gave her view that the mother was working so hard with the baby during the access there was very little time when the mother was not looking directly at the child. She said this level of interaction had led the child to come up with her own responses which was a disordered emotional response. She said that normal interaction was to offer the baby cues and hope they would offer you cues back. If parents were open such an issue could be addressed through good modelling by a trained access worker. The GAL had seen the mother with the baby twice, but said it was not her place to intervene or offer advice.
The GAL acknowledged that supervised access was very difficult and commented that it was not easy to watch the desperation of the mother. She explained that her role in access was to watch how the baby responded. She said she was concerned about the child’s disordered emotional responses and it was her belief that the baby “cannot cope with the level of stimulation in the access, the amount of access is frenetic and the response is disordered emotions”.
Counsel for the father also cross-examined the GAL. In response to his questions, the GAL replied that in light of the disordered emotional responses that she observed in the baby on two occasions she believed access should be reduced to once in every six weeks and then once every two months. This would offer the child an appropriate and potentially more manageable level of contact with the parents. She noted that the older children had limited access with their parents.
In response to criticism that this hearing was pre-judging the case, counsel for the CFA rejected this and said the court was case-managing it until a hearing date was assigned. Counsel for the CFA concluded by summarising the rationale for his application. Twice a week was sufficient if the child ultimately went home and five times a week was too much as the child might experience an avoidable loss.
The mother testified through an interpreter. She described what she did on a typical access visit. She said the child was “very happy” to see her, she described how her daughter had the “greatest smile” and how she had taught her how to clap hands, and was teaching her how to talk and move. She showed the court two photos taken on her phone of the child smiling at the previous day’s access visit.
Counsel for the CFA asked her to respond to the evidence that during access Child C had no expression on her face when looking at the mother. The mother disputed this and said the child was happy every day. Counsel asked her to respond to the evidence that she was doing too many things and not letting the child take a break. The mother replied she was doing her best and that 45 minutes or an hour and a half was still too little time.
She denied that the social workers had spoken to her about reducing the activity during the access visit. She was asked about the evidence given that it would be “unkind” to the child to maintain this level of access. The mother said she strongly disagreed, “I am her natural mum and she should build a relationship more to myself and not with the foster carers as they are only temporary family.” She said: “I have had her under my heart for nine months and I gave birth to her, not the other lady.” She asked the court not to reduce the access time.
Counsel for the mother said Expert B’s testimony was “premised on the assumption that the child is not going home.” The court had a duty to ensure there was a continuation of [the parental] bond. His client factually disputed what the GAL had observed. He noted that these proceedings related only to an Interim Care Order.
The judge told the court that the decision he had to make was one “that is in the best interests of the child rather than a decision to meet the need of the parent.” He noted that the two expert witnesses differed on the reasoning but had come to the same conclusion. He ruled that it was in the best interest of the child that access be reduced. He noted that the application sought by the CFA was to reduce access to twice a week and ruled that access should be gradually reduced to once a fortnight.
Dispense with Parental Consent to Allow Child Travel
The CFA also made an application under section 47 of the Child Care Act 1991 to dispense with parental consent to allow Child C to travel outside of the jurisdiction for a holiday. The social worker gave evidence that the foster carers had planned a holiday over the Easter break and would like to include Child C in the holiday. The child had a passport. The CFA sought to dispense with the consent of parents on the basis that it was in the best interests of the child to go on holiday with the foster carers as a family unit, it would be socially good to go to different places and to be included in all aspects of family life.
The other option was that the child could go to respite care but the foster carer did not want her to be placed with another carer. The question was raised that the child was very small to be travelling, she would not remember it and could go to respite care. The social worker disputed the fact that the child would not be impacted by respite care.
The parents were not consenting to the section 47 application in relation to the holiday. The judge granted the section 47 application allowing the CFA to dispense with the parents’ consent to permit the foster carers to include Child C on a family holiday. The judge asked rhetorically “how could it be in the best interest of the child for her to placed in respite care with strangers?” He granted permission for the child to leave the jurisdiction over a specified five day period.
Extension to Interim Care Orders for older children
The CFA social worker was asked about alcohol use by the parents. She said she had seen no evidence of alcohol abuse. Counsel for the CFA informed the court that the Garda file had gone to the Director of Public Prosecutions (DPP) and that at the next court hearing they would be able to bring an application in relation to all parties having access to the Garda DVDs.
The court was told the parents were not consenting to the extension of the Interim Care Orders. The judge commented that the children were interviewed by both the Garda and social workers, the Garda held interviews by themselves and had released the DVDs of that interview to a consultant, Expert A. He said there are two different processes ongoing, which freed this case up to progress. He ruled that it was appropriate for him to extend the Interim Care Order in respect of the three children for one month and adjourned the Care Order application to the same date. The judge said he hoped that by the next hearing date the report from Expert A would have been submitted to the parents and the date set for the Care Order hearing.
One month later at the next hearing of this care, a number of applications were before the court – exchange of DVDs, in camera rule, enquiries abroad, extension to the Interim Care Orders and issues relating to access and gift giving.
Counsel for the CFA began the hearing by clarifying that they had inadvertently misled the court at the last hearing. They had indicated that the Garda file has been filed with the DPP. In fact at the time of that last hearing the file had not yet been lodged. However, he could now confirm that the file had been lodged with the DPP, and the Gardaí were awaiting the DPP’s directions.
Exchange of DVDs
The CFA made an application for the Gardaí to provide the DVDs of the child interviews to all parties in the case. A technical amendment was made to the application to allow the transfer of the encrypted DVDs in appropriate formats, for example on a USB. The judge granted the order on consent subject to relevant security conditions.
In Camera Rule
Counsel for the father made an application to lift the in camera rule to allow the parents to discuss the details of the child care proceedings with staff from their national consulate in Ireland. Two members of staff from the consulate were present in court for this part of the hearing. The application was sought as the parents were seeking advice from the consulate and they had found that the in camera rule was restricting their communication.
Counsel for the father explained that the objective of this application was for the consulate to be able to support the parents in understanding the process and procedures involved in these proceedings. He cited Section 5 of the Diplomatic Relations and Immunities Act 1967 which gives effect in Irish law to the Vienna Convention on Diplomatic Relations 1961 and provides for freedom of communication between nationals and their consulate.
Counsel for the CFA indicated that they would consent to the application to lift the in camera rule once two safeguards were put in place: firstly that the Embassy staff could not discuss the child care proceedings with anyone else and secondly that the CFA would object if the communication included the sharing of documents. The GAL and An Garda Síochána raised no objection to this application.
The judge ruled that the in camera rule could be lifted in order to allow for the parents to communicate with staff in the consulate, subject to the conditions outlined by the CFA. The consulate staff expressed their thanks to the court and the CFA.
The CFA sought the court’s permission to dispense with the consent of the parents to allow the CFA to engage with the social services agencies in other jurisdictions for the purpose of completing a background check on the parents. Counsel for the CFA explained that the language of the order sought has been framed broadly. As the International Social Services could be slow to respond to such a request the CFA also sought to contact the relevant Embassy and national police force. It was understood that the mother did not have other children, however the father had children living in the other jurisdiction.
Counsel for the father said he was concerned that this application might delay the child care proceedings and the application for the Care Order hearing. Counsel for the CFA confirmed that the case would go on and this application should not be a reason for delay. The judge dispensed with parents’ consent to allow the CFA to make enquiries abroad about the parents’ background.
Interim Care Order Extension
The CFA then brought an application to the court, on consent, to extend the Interim Care Order in respect of all three children. A principle social worker gave evidence to support these applications. She reported that the two older children (Child A and B) were “happy and content in foster care” and “happy to remain there”. She reported that Child C (the youngest child) “continues to develop well” and was “more settled” since the frequency of access with parents was reduced, it was now fortnightly.
The judge granted the CFA application to extend the Interim Care Order for one month in respect of the three sibling children.
Access and Gifts
The court heard that one of the school-going children was planning to make their First Holy Communion shortly. The CFA proposed, in line with the child’s wishes, that the parents attend the ceremony, take photographs with the children and then leave and the children would continue the celebrations with the foster family.
The CFA raised the issue of the parents bringing gifts to access visits. The social worker said it was ordinary practice to encourage parents to bring gifts for children. However, she informed the court: “I don’t think it is helpful in this case, the focus should be on the relationship and not on presents.”
She explained that it was hard for the staff to assess the quality of the access visit as the children were focused on the presents and not on the relationship. The social workers believed the children’s anticipation of getting a present was impacting on their reasons for attending access and on their behaviour before and after access. She noted that it was usual for the children to wet the bed before or after an access visit, as had happened in relation to the last access visit.
The CFA had put in place a temporary ban on the parents giving the children presents. It was okay on special occasions but the presents must be given to the social workers who would then give it to the children. The CFA acknowledged that it was the cultural practice of the parents to “bring a little something” on a visit. The social worker said they have explained to the children that it was not that the parents did not want to bring them presents but that the social workers had asked the parents not to do this.
The solicitor for the mother said it was “extremely important to bring something small” to the children, “even a chocolate bar”. This practice was confirmed by the consulate as a cultural practice for the parents. The social worker replied: “In this particular case, with its specific sets of circumstances, they do not want this to be motivating factor for the child to attend access. They want the focus on the relationship and not what the gift is.” In response to a question from the solicitor, the CFA confirmed that this decision could be reviewed in time. No application was before the court in relation to gift-giving and consequently no order was made by the judge.
Care Order Hearing
The solicitor for the GAL asked about dates for the Care Order hearing, the judge replied that there were “major issues” regarding securing dates.
The Child Care Law Reporting Project did not attend the latest hearing of this case but understands that the Interim Care Order in respect of all three children was extended and the report of Expert B on the credibility of the children’s disclosures had been furnished to the parents.