Interim Care orders for six children where habitual residence being contested – 2023vol1#7

A judge in a rural town granted an interim care order for six children, Children A, B, C, D, E and F, who had recently moved to Ireland and were subject to protection under Article 11 of the Hague Child Protection Convention. The full hearing of the matter to deal with children’s jurisdiction and habitual residence was adjourned until the children’s father had engaged legal representation.

The judge directed that the Child and Family Agency (CFA) had authority under section 47 of the Child Care Act 1991 to consent to any medical interventions necessary for the children but she refused to grant consent for obtaining passports for the children. The judge sought the views of the parents who gave consent for one of the children, who is transgender, to be called by their preferred name and pronoun in school.

The judge addressed the parents at the start of the hearing. The mother was legally represented but the father was representing himself. The judge advised the father to engage legal representation for himself and explained how he should proceed with this. She noted that the father wished to remain in Ireland but that the mother wished to return to the UK. The children’s guardian ad litem (GAL) provided reports for the court and advised that the two older children, who were teenagers, had expressed their own views very articulately.

The lawyer for the CFA reported that there were no birth certificates available for the children initially as the parents did not have them. However, this issue was now mostly resolved. The judge said she was concerned that there was some confusion as to when and why the family had moved to Ireland and where the children had lived prior to arrival here. The judge enquired about the basis for the interim care order and the CFA lawyer explained that the Hague Convention provided for a provisional order to be made under Article 11 while the matters were being assessed here.

The judge said she had read a number of reports from the social workers in the UK that pertained to the time just prior to the family’s move to Ireland. She explained that she would need to hear evidence in this regard from those social workers via a court video link. She told the parents that the issue to be dealt with was the interim care order and that the children were to remain in their current placements. The children’s social worker informed the court that child-in-care reviews had been carried out and that the parents were invited to attend but did not attend.

The social worker reported that Child A, who was of senior post-primary school age, wished to return to the UK and live with his grandmother where he hoped to pursue his ambition of becoming a teacher. He had found the Irish education system confusing. Child B wanted to return to the UK to live with a grandaunt. Child C wanted to remain in the current placement with her relative. She had missed a significant amount of schooling and additional supports were recommended. The three younger children, of primary school ages, were well-settled in their foster placements but medical and educational assessments were recommended for all the children. The CFA lawyer described communication difficulties with the parents and said the mother did not have a mobile phone.

The lawyer for the GAL went through some of the GAL’s recommendations. Child B, who is transgender, was referred to the Child and Adolescent Mental Health Service (CAMHS), but was not accepted by CAMHS, who recommended that B should be referred to Jigsaw instead. The CFA lawyer said that B wished to have a preferred name and pronoun used in school. A letter of consent was required from B’s parents in this regard but they had not sent back the form. The judge asked the lawyer what would happen in the school if the parental consent was not given. The social worker replied that the school might use B’s preferred name and pronoun as a courtesy. She said that being able to use the correct identity was a big factor for B.

The mother’s lawyer asked the mother to explain what her issues were in relation to B’s request about preferred name and pronoun. The mother replied that she would prefer B to receive counselling initially before a decision was made. The GAL’s lawyer reported that B had expressed that this matter was of extreme importance and that counselling would take some considerable time. The judge asked when it was that B had started to make this request and the mother replied that it was since coming to Ireland. The CFA lawyer reported that B’s school had raised this issue six months previously and had sought parental consent. She said it would be difficult for B to continue for months in school not being referred to by a chosen name and pronoun.

Mother: “It may be difficult but may not be in [B]’s long term interests.”

The CFA lawyer pointed out that it was not medical treatment, just a name choice. The mother continued to express concerns that this was quite significant and that she was unsure about the long-term effects. The judge asked the mother if B’s request had been a surprise to her and the mother said B was mature in some ways but immature in other ways.

Judge: “This means a lot to [B]…[B] is refusing access with you…This is a young person who has reflected and wishes to be called a different pronoun. Have you changed your mind?”

Mother: “I’m happy to sign the form for the school but nothing else…limited to the school only.”

The judge asked B’s father what his views were on the name and pronoun issue and the father said he was consenting as long as it was just for the school. The judge asked about the communication difficulties between the CFA and the mother and the mother informed the court that she was getting a mobile phone that week and would give her number to the CFA.

The judge said she was satisfied to make the interim care order. The GAL’s lawyer asked about a direction for the children to obtain passports as the foster family intended to go overseas in the summer. The judge said she was making an order, with the consent of the parents, giving the CFA consent for medical treatments and assessments but was not making any order about the children’s passports. The judge listed the matter for a date three months later and confirmed that the video-link facility would be available on the date.