Judge asks whether District Court systems can deal with long complex cases, following 68 days of hearings – 2016vol2#6

A case that went on for two and a half years raised “serious questions as to whether the District Court has systems in place for serious child care cases,” according to the judge who heard the Care Order proceedings, preceded by prolonged Interim Care Order proceedings before another judge. Care Orders were granted for five children at the end of the case.

“It raises, in my mind serious questions about whether the district court has the rules and procedures in case to handle such complex cases. It seems that neighbouring countries have better procedures … [Irish] district courts tend to go quite slowly,” he said.

“I am nonetheless, the judge,” he acknowledged. “It is not in anyone’s interests that a case like this runs for such a period, especially [the interests of] children,” the judge said. “As a judge I must take responsibility for imperfections in the system and I do so.”

The judge recalled that there had been a number of witnesses, including social workers, psychologists, paediatricians, foster carers and neuro-scientists.  The case had first come before the courts in December 2013 and there had been a number of Interim Care Orders. The Care Order proceedings began in September 2015, and, after 68 days of hearings, concluded in June 2016 with his ruling.

The children ranged in age from two to eight years old. Here the oldest is identified as A, the second B, down to the fifth child who is identified as E. The father [Father X] in the case was biological father to four of the five children.

The mother was herself the victim of incest and sexual abuse since the age of five. The Agency had been in contact with the family for several years, as the mother had given birth to her first child (Child A) at the age of 16 while in she herself was in care. At that time, the CFA began providing support services to the family on a voluntary basis.

The parents had been in a relationship since the mother was a teenager, and had been a father figure present in all five of the children’s lives. Both parents suffered from mental impairments. As a child, the father had suffered a head injury and had various mental health and cognitive impairments. Although the mother had been institutionalized in the past to stabilize her mental health, neither parent consistently received treatment.

Since they became parents at such a young age with little or no support, the couple had never been able to care for the children on their own. The CFA social workers found that the family’s home was squalid, smelled of dog faeces and urine. At times, the children were found to be filthy, unwashed and unkempt, and had contracted fleas. The CFA also found that some of the children’s language and educational development were lacking, and that the parents were unable to meet the children’s needs even with CFA support.

The court noted that the case spanned two different areas of the country, and that none of the homes the children had ever lived in were stable or safe. In 2015, the court issued orders directing the CFA to initiate DNA tests to establish the paternity of the children. The mother gave evidence that Father Y (of one of the children) had never been involved in any of her children’s lives because he had been incarcerated for sexually assaulting a minor. The Judge found this evidence prejudicial.

“Mom said she didn’t want the child’s father involved, but it was she herself who engaged with this unsuitable father, while she was in a relationship with the father in this case … I don’t know the facts of it, but that seems to be her position.”

The judge explained that while the issue of paternity and the mother’s past relationships was “non-pivotal” in the case, the mother’s lack of candour with social workers and the contradicting evidence she had given in court spoke to her lack of credibility and cooperation during the process.

The court also cited various times since 2013 where the parents entered into a voluntary agreements with the CFA to temporarily place the children into foster care.  While in foster care, the older children began to disclose to their foster parents incidences of neglect, as well as physical and sexual abuse that they had allegedly suffered while in their parent’s care. This prompted the CFA to undertake a more thorough investigation of the matter, contracting several expert evaluations and prompting additional mental health supports to be put in place for the children.

The court found that the parents “needed the CFA to help them through bad periods and bad times,” but that the parents had a right to expect that their children would be returned to them pursuant to the voluntary nature of the agreement. While the parents in this case had sometimes been “motivated by the CFA” to place the children into voluntary care “on other occasions, the mother was motivated by impending birth of another child.” The court felt this was relevant because it showed that Father X lacked the will and/or capacity to care for his own children while the mother was incapacitated.

The court noted that the conditions of the earlier voluntary care “arrangements” with the CFA were unreasonably unclear so as to create uncertainty in the children’s lives which precipitating an “unseemly incident” outside the foster carer’s home in 2013. During the autumn of 2013, the parents abruptly revoked their consent to the voluntary care arrangement with the CFA, then presented themselves at the foster carer’s home to collect their children without notice.

While there was now an Interim Care Order in place, “there are no methods set forth in [the arrangement] where the mechanics of terminating voluntary care are concerned.”  The foster carer had no choice but to hand the children over to their parents. “One expects it would be done in a planned and organised manner. That it couldn’t be in that case tells me they weren’t putting the interests of their children first. The only consideration in the eyes of the court was that the children weren’t in bed,” the judge said.

This situation was later “sorted out by agreement” between the parents and the CFA, and a guardian ad litem (GAL) was appointed to the case to ascertain and represent the will and best interests of the children.

“What this [incident] demonstrates is a lack of insight into the children’s needs and the serious consequences [of their actions],” said the judge. “The CFA should have anticipated these needs, and should have done more to put these terms into an agreement … an open ended agreement was never intended to be the arrangement … it may take legislation to become correct.”

The judge noted that the children are currently placed in different foster homes, as well as receiving various support services from the CFA’s network of professionals to meet their physical and emotional needs.

There is an ongoing criminal investigation into some aspects of this case. During the investigation and the CFA’s evaluation of the allegations made by the children, the parent’s access to the children has been limited to once per week and supervised by CFA social workers. The judge found credible evidence from social workers that the parents have routinely attended such access and been positively engaged with the agency.

The court accepted the CFA’s evidence that both the mother and father X love their children, but do not have the capacity to deal their own needs in addition to all five of their children’s complex physical and mental health needs. “[Child E, aged 2] has been in care practically her whole life. Those children are in the care of foster carers who are skilled in meeting complex needs, and they have difficulty meeting the needs of the children.”

The court went on to cite the conditions in the home which had precipitated the children being taken into care: “The moving around … the mother admits she was wrong, but they have a cold, unsuitable home  … children left in nappies … the social worker says there is a lack of proper stimulation … what I won’t forget is that the educational officer [who visited the home] said it was one of the worst she had ever been in during the course of her career … difficulty getting in, and when she did get in, [father X] was in charge and [the mother] was absent. There were no proper conditions for the dogs, never mind the children. The odour was overwhelming…”

The CFA offered evidence from Psychologist 1, the director of a local mental health clinic who had evaluated and provided mental healthcare to the children. He had interviewed the children at length on numerous issues, but did not keep any notes or offer any written evaluations into evidence. His testimony was based exclusively on memory. In addition, the CFA offered into evidence a forensic psychological evaluation of the older children which had been conducted at specialist centre which handles cases involving child sexual abuse.

The judge said that Section 42 (a) of the Constitution, inserted following the Children’s Rights referendum in 2012, refers to “exceptional circumstances” when parents cannot care for their children, and the State then taking “proportionate means” to protect them. It also refers to the principal and paramount consideration being the welfare of the child, and the need to consider the views of the child. “My understanding is that that changes the law,” he said.

“During the court hearing many issues arose. The systems and rules are not really working. Some of what I heard was not really relevant to the hearing. It could be decided outside the court.”

The judge summarised some of the issues that had prolonged the case. He referred to the issue of disclosures and hearsay concerning statements made by the children. “The children were not in a position to give evidence and it was not in their interests to do so. It was decided that the best thing was to have the people to whom the statements were made give evidence – the foster carers and social workers. It meant the foster carers came to give evidence. I rarely have foster carers give evidence, but there are cases where it is necessary,” he said.


“One of the foster carers who gave evidence became ill and could not continue when the cross-examination began and she didn’t come back. The respondents objected to her evidence on a fair procedure basis. The law is designed to allow hearsay evidence of children to be brought into court in such circumstances. It is a matter for the court to weigh up the evidence.


“I believe that legally and constitutionally it was correct [to consider this evidence], especially when we look at Article 42 A. I always keep to the forefront of my mind the concept of paramount consideration. It does not mean I discount other considerations.


“Another issue was whether Dr [Z] [a psychologist] had the permission of the respondents to access their historic social work files. It might have been better if he had adopted the practice of other professionals and have consent reduced to writing and signed.


“The question of access was an ongoing issue. I set out a system of access before the case began. I believed it was correct while Interim Care Orders were in place. I think when Interim Care Orders are in place different considerations apply. There is a different legal basis for an Interim Care Order and a full Care Order. It is not envisaged that interim care continues for a long period. I directed that access was once a week for an hour and 15 minutes. I wanted a structured basis for social workers and parents to meet and discuss issues while the hearing was going on,” the judge continued.


The judge said that another issue that prolonged the case was that of a DNA test. DNA tests are a matter for the parents and for a time the parents were not legally represented. He said he ruled that, while a DNA test should be carried out, the information should not released until they were represented. “I thought it essential for my purposes that this information should be available. It turned out that child E was not a full sibling of the other children and that the father in this case is in fact in loco parentis to the child.”


Another contentious issue was the evidence of the team leader [who had outlined her concerns about child sex abuse], he said. “I thought she should give evidence in her role as a senior social worker and not as an expert in child sexual abuse.”


Turning to the substance of the case, he said that the parents had been very dedicated to the proceedings throughout. They denied the grounds existed for Care Orders, and specifically denied that they had sexually assaulted any of their children. There was no question of substance abuse whatsoever, which was to their credit.


He said that he had heard of their difficult backgrounds. The mother had been the victim of child sexual abuse and was in care herself from the age of 13, including a period in secure care. He was not sure he had received the full story of her past history. “I know in other jurisdictions it would be necessary that every report and assessment was made available to the court. I don’t know what arrangements were made for therapy [for her] and what was carried out. I don’t know what after-care arrangements were made. I know from the evidence of the mother that she needed help and psychotherapy to help her be a good enough parent.


“I know she’s ambivalent and untrusting of professionals. She has a simplistic notion of what parenting involves, especially in relation to her children’s educational and psychological problems. The circle was never squared for the mother, she was just left there. She was a child when she had her first child. A vulnerable child became a vulnerable child-parent.


“She moved out of care and for a time moved into the house of [her partner’s] father, who had himself been convicted of the most serious offences against children. It was the worst possible beginning for family life.”


He said the children’s father had given different versions of his history to professionals and to the court. He had “lived in the shadow of child sexual abuse for many years. It was quite extraordinary how long it took to establish the factual basis of all this. I would have hoped the social work department would have records.


“One of the areas I had problems with was he was not open with the court about his father’s conviction. That causes me huge concern when I come to assess his evidence.”

It said it was very concerning that a 22-year-old [as he then was] entered a relationship with a 16-year-old who was in care under a Care Order at the time. “I am concerned about how the relationship developed and the circumstances in which the mother left care.”

He said the relationship appeared to be unstable, fracturing over the years. The father was not the biological father of E, and what surprised him was that the mother said she did not want the biological father to have any contact with the child, as he was not a suitable person to have contact with children. Yet she was in a relationship with him while parenting her own children.

Another issue that gave him concern was the history of voluntary care arrangements. When the mother was pregnant she sought respite care for her children. “Why did the father not care for the children? There should have been no need for respite care. The problem with voluntary care is the lack of structure. It’s OK if it works. If it doesn’t work there’s a problem. The contents of the consent form are usually extremely sparse. When problems arise the arrangement is terminated. Here it was terminated in an unplanned manner at the house of the foster carers.

“The CFA should have handled the voluntary care arrangement better. The onus is on the social work department. Open-ended voluntary care was never intended. It may require legal intervention to get it correct.

“The facts show the parents don’t have the capacity to meet the needs of their children, especially of the children with special needs. Even the foster carers, who are skilled, have difficulties in meeting the needs of these children.”

Having briefly described some of the living conditions in the family’s home, he said that in cross-examination the mother had accepted there was chronic neglect of the children. One of the doctors thought that the neglect had contributed to the condition of the oldest child [who has considerable special needs].


Turning to the question of alleged child sexual abuse, he said it was very rare for a person to admit it. “The reality is that the perpetrators of child sexual abuse do not appear different from the rest of us, they have little difficulty in participating in society. It is a hidden world. Rarely do perpetrators admit to sexual abuse. It is reprehensible behaviour that is unacceptable to society … it is a hidden world and difficult to assess, and it is extremely difficult to assess in relation to small children.”


He said the CFA had set out a dossier of incidents involving the children, in which they simulated sexual acts with themselves and others. These indicated the children had familiarity with sexual matters that children so young should not have. The expert who gave evidence for the parents said that the sexualised behaviour went well beyond what one would expect from children this age.


There had been an allegation concerning the youngest child, and the issue of memory became involved given her age. The court was told about the encoding of memories, and that traumatic memories last longer than positive memories, especially if they occur before the first two years of childhood. The court had heard three experts on memory, two for the CFA and one for the parents. He was more persuaded by the expert for the CFA.


With regards to Psychologist 1 [for the CFA], the court rejected the notion that his lack of documentation in the case negatively impacted his credibility in giving evidence in this case. “[Psychologist 1] might not keep notes, but he has a great memory, is hugely informed and has huge knowledge on this subject,” the judge said.

The respondents’ expert [Psychologist 2] had made herself available to the court for seven days. She was highly critical of the specialist child sex abuse unit that had assessed the children. However, the judge said he thought she did not understand that they were providing an “integrated assessment”, conducted where there is an absence of disclosure but there is a likelihood of a risk of child sexual abuse. It was not an assessment of credibility by a psychologist, but a needs assessment for therapeutic purposes. He stressed that it was valuable that experts like her came to give evidence in such cases and the unit concerned could learn from it.

The judge said that based on the evidence he believed that the older children (if not all of the children) had (at the very least) witnessed sexual misconduct and abuse while in their parent’s care, but that no expert had been able to conclusively identify the perpetrator(s) or prove that these children were the victims of sexual assault. The court decided that the evidence had to be weighed as follows:

[Psychologist 2] had explained to the court she was an independent witness, she had had no contact with the parents, the social workers or other professionals and, more importantly, with the children. She did not have access to all the material. “I have to weigh up her evidence against that of the experts who did have access to all the material and the children. On the balance of probabilities, I accept that the disclosures of the children were as a result of their experiences and not of coaching.”

A guardian ad litem was appointed at the first Interim Care Order. While normally a GAL gives evidence at the end of a case, because disclosures had been made to the GAL she was called earlier, he explained.

Referring to the role of the GAL, the judge said: “The Children’s Acts Advisory Board did good work in producing guidelines. The guardian reviews all social worker reports and evidence, then lay out an opinion, but she didn’t do that way, she laid out all the evidence for me [suggesting] the child protection concerns were well founded.”

The CFA had asked him to make a number of findings of fact. He said he was satisfied by the evidence it would not be appropriate to make a Supervision Order, or to make a Care Order for less than the children’s full minority, until they were 18. The evidence of the CFA was sufficient to justify Care Orders, and that of the parents was not sufficient to rebut it.

In relation to the findings of fact, he said the question of child sexual abuse was much more difficult than that of neglect. He found that the children were sexually abused while in the care of their parents, and that the parents were aware of it.

Making the order, he said the court found that the threshold in Section 18 (1) of the Child Care Act had been met, and the children’s health, development and welfare would be avoidably impaired if he did not make a Care Order.