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 1 of 2017: Interim Care Orders extended for three children due to sex abuse allegations

See also Vol 2 of 2016: Parental access visits denied amid allegations of sexual abuse

The report below relates to the final two hearing days of a care order, held six weeks apart, in respect of three sibling children on the grounds of neglect and physical, sexual and emotional abuse. Child A and B are primary school age and Child C is an infant. The court in a rural town heard evidence from the father, the mother, two witnesses called on behalf of the respondent parents, and closing submissions by the legal representatives. In addition, an application was made for the judge to recuse himself from the case.

The Father

The father confirmed he was the biological father of Child B and Child C and acted in loco parentisto Child A. He was born in another European country. His father died when he was young and his mother still lived in his country of origin. He moved to Ireland 2004 and was joined by his ex-wife and two children from that marriage. He met the mother in Dublin when Child A was six months old and they moved in together. He accepted he was almost twice the age of the mother but said it was a normal age difference.

He moved to the provincial town and took up employment. Child B was born with his organs outside of his body and underwent successful surgery. The father was very happy when child B was born but he was upset as the child was sick.

The family came to the attention of the social work department in July 2009 and the investigation then closed. There had been a number of callouts between October 2013 and June 2014. The father agreed there was not enough food in the house in the months in 2014 and agreed their money was spent on alcohol. He said the children had clothing all of the time and said after a year in care child B was still wearing the same clothes they had packed.

The father accepted he had been drunk, in bed, hung over and not contactable on a regular basis. There were four incidents between 2009 and 2011 regarding Garda notifications of the father being drunk and he accepted that he and the mother shouted at each other but he said alcohol caused those rows. He denied there was domestic violence in the relationship and disputed the allegation that he had put the mother and Child A out of house on one occasion.

The father did not did not stop drinking when the children went into care. He said: “It was a big problem. I wasn’t trying to find a job at the time as I was drinking.” He said the parents drank because they “were upset that the children were taken.” He accepted he lied to the social workers about his drinking and he looked to have the children back home.

In October 2015, he was taken to hospital. His kidneys, heart and liver had been affected by alcohol and he was kept in hospital to begin a week-long detoxification programme. The father said: “I have not had a drink and I have been sober since I left the hospital, that was about two and half years ago.”

He denied anyone ever struck the children with a belt. He said when he was not drinking he took the children on trips to the beach to see the sea, to Dublin and to the playground. He said he was willing to work with the social work department for a better outcome.

He said: “When I was drunk the children could do whatever they wanted, they had more freedom.” The children would not attend school when the parents were drinking. The father said when he was drunk he “mostly knew the children were safe as they stayed in the house.” He said it was “definitely bad” for the children to witness arguing when the parents were drunk. “I don’t know any child who likes to see his parents taking drink. I don’t know how it affected them as I’m not a psychologist but the children were happy.”

Counsel for the CFA said: “Child A and B do not want to go home to live with you.” The father replied: “That is strange. Before the case they wanted to come back home.” The father did not think it would be stressful for the parents to have the children home. He did not think he was in danger of relapsing due to the stress caused by taking care of traumatised children.

The father accepted the children did not have enough food and that the house was dirty. He said: “When a person is drinking, he does not clean and there were a lot of cans, bottles, unwashed cutlery and dishes. I was drinking but not all the time. If I were drinking all the time, the children wouldn’t be at school and they were attending school.”

Counsel for the CFA asked: “You had a meeting with the social work department in May 2016 and at that meeting the mother told the social worker for Child A and B there was always food and 100 euros was spent on food every week?” The father replied: “Yes, that is the truth. We sent [female relative Y] to buy food. Food was always there but maybe not the type they liked.”

He denied he was changing his story and said female relative Y went to the shop where “she got ham, cheese and ethnic products but the children did not like the food.” He agreed there was no money in the house as alleged by child B in the interviews but denied the allegations of physical abuse.

Counsel for the CFA said: “Child A has a different account. [Child A] said the parents drink vodka and when they are drunk, they hit her.” The father said: “That is not true. [Child A] is lying.”

He denied there was an incident in early 2015 that left the mother in hospital with a broken jaw. He said he was not aggressive in that way and he never hit the mother. He admitted he had missed a number of access visits during 2014 and 2015 and regretted missing that time. He said: “The children were never left with strangers or friends and they stayed with [female relative X].” He never witnessed violence by Man X or the ex-partner of the female relative X.

He was unaware that Man Y was convicted of harassing a teenage girl and said there was nothing to be afraid of in terms of Man Y. He said three teenage females would visit the children and there was nothing inappropriate about the situation. He did not know the surnames of the females and said they were at the house “nearly non-stop.” None of the teenagers were invited to the parties at the house as they were underage. He denied he gave the young women alcohol.

Counsel for the CFA asked: “On the 5thJune, the social worker said [Man Y] wanted to speak to [Child A] before she went away with the social workers and the Gardaí, but the social worker would not allow it. The next day [Man Y] was still in the house and the house was messy.” He said: “I can’t recall the person attending as I was kept in living room with Gardaí.”

Counsel said: “[Child A] said ‘when there were parties, I saw them drinking and smoking it was not hidden from us, just the Gardaí, they smoked hard stuff.’” The father replied: “We smoked tobacco and drank alcohol. I have not hidden anything from the Gardaí.” He said he managed to keep partying for many days.

He met the social worker for Child C in March 2016 and signed a letter to have the children medically examined. He later met the social worker for Children A and B and said he was reluctant to sign anything and was seeking an independent doctor in Dublin. Counsel for the CFA said: “The children made very serious allegations of physical and sexual abuse against you both, you told the social worker for Child A and B both you and the mother spoke of how all the professionals and CFA were all lying and out to get you?” He replied: “Yes I did, it is my opinion and I believe it.”

He denied the allegations of sexual abuse made by both children against him, the mother and others and said: “We never harmed our children in any way.” He denied he was involved in the rape and oral rape of Child A and B. He said, with regards to the statements made by the children in their interviews: “They might have heard those words in school.” He was aware the children exhibited sexualised behaviour and attributed the behaviour to the former foster carers. He said: “Something happened in that house.”

Access ceased after the allegations of abuse were made and the father was unsure if the children knew he was not drinking now. He said: “In my opinion we can blame social workers for blocking our access for so long. The children never said they didn’t want to go to access.” He said he would like to see the children if the court were to make an order regarding access. He saw Child B at the first communion of Child A last year and said: “I want them [the children] to see that I have changed and I am taking great care of our family. I am working and making more money now than in 2014.” The parents were renting a home with enough space for each child. He said: “The home is clean and safe and a lot different from when I was drinking.”

The father saw Child C every two weeks and she recognised him. He said: “I think she knows who I am as she calls me papa.” He described the relationship with Child C as very good. He said there was a “warm and clean house waiting [for her].” He said: “I love her so much and we would give her so much love.”

He recalled recording a video at access with Child C and explained: “When I recorded it, I had different thoughts and was thinking of the defence in the case.” He said the social worker remarked in court that she had noticed the mother’s behaviour and how she acted differently when changing the nappies of Child C. He deleted the video straight after he was asked to do so. He did not accept that the recording was inappropriate and maintained he “was recording the entire body of Child C and there was nothing happening.” He believed he was capable of being a good father.

Counsel for the CFA asked: “You have heard all these things being said about what the children went through. Do you find it upsetting?” He replied: “I am upset that I cannot see them and I am in pain. I am a parent and I would love to have them back home. I want my children to come home but it is up to the judge.”

The Mother

The mother said she moved to Ireland when she was 18 years old. Prior to moving to Ireland she lived with her grandmother in the same European country as the father and became pregnant with Child A when she was 17 years old. Her mother was living in Ireland at the time and she went to her country of origin to bring her two daughters to Ireland.

The biological father of Child A did not want anything to do with the mother or child when he found out she was pregnant. She said she was introduced to the father of Child B and C by her brother. The family lived at an address for four years in a provincial town and she was minding the house and the children but was drinking. She said: “There was alcohol but I never drank to the stage where I was unconscious or asleep.” Female relative Y reported the mother to the social workers for being unconscious from drink. The mother explained female relative Y “was cross with me and brought up this issue.”

The mother explained: “The children were present during rows and sometimes they heard it and sometimes not. They should not have been witnessing how I was drinking alcohol and I am ashamed.” She remembered calling the Gardaí as there were arguments all the time and the father had been removed from the house due to the screaming and shouting. She explained: “I was in the court and I withdrew some statements and the complaint of assault.” She denied the father threatened to hit the children with a hammer and kill the whole family and himself.

The solicitor for the GAL said: “[Child A] advised the GAL that the mother tried to kill herself with the strings of the blinds?” The mother replied: “This never happened.”

Counsel for the CFA asked “Child A said, ‘they kept drinking and wouldn’t stop and when they were very drunk they kept on hitting me for no reason.’” The mother responded: “I am not denying the drink but I won’t admit hitting the child.” She said: “When the children were bold they were sent to their room and their tablets were taken from them. It was not needed many times as I always tried to explain wrong behaviour to them.”

She admitted: “I never gave the children enough of my time, we never went to the playground. I am disgusted with myself and I regret a lot. The children missed a lot of school but they did well in school. The teacher only said good things about Child A and B and I was so proud.”

The mother said before the children were taken into care, “everything was OK.” She took them to visit Santa before Christmas and they celebrated St Patrick’s Day together by dressing up in green clothes. Child A was “normal, happy and smiley” when she lived at home and was great at making salads, loved playing and going shopping. The mother warned Child A not to talk to strangers and did not accept the evidence of the Foster Carer A that Child A flirted with boys.

Child B was full of life, energetic and happy but he preferred to share his issues with his father. She said Man Y “was visiting us when we drank and now he only greets us on the street. He paid no attention to the children. He tolerated them and he was able to answer questions from them.” She said “Child B approached him with a toy and he showed no interest.” She did not believe Man Y hit or hurt the children. She maintained: “If he had hurt them, he would have been thrown out and reported to the Gardaí.” She was no longer still friends with Man X and Man Y and she said would only meet Man Y when she went shopping.

When the children went into care the mother felt sad and empty. She said: “I wanted to stop drinking but I did not and I missed a number of access visits.”

Counsel for the CFA asked “you had a three-day party [from the day the children were taken into care]?” The mother replied: “It was for one day only. It is a tradition to bless your house when you move in and celebrate. The party started at 2pm and there was a full bottle of vodka on the table. The social worker arrived at 4pm and I was wearing trousers and a vest.” She denied she had been wearing hot pants, one sock and no shoes. Counsel for the CFA asked: “You were partying for days and there were bottles and cans everywhere?” She responded: “That is not true. The bottle of vodka was half full and it was placed on the table when the Gardaí took my children. The children were taken into voluntary care and I was forced to do this.”

The mother did not accept that the children could not use the toilet during their first night in care. Child B had said the bed and clothes were “pissy” in his interviews. The mother explained Child B “had an accident when he drank before going to bed but he did not wet himself as he could get out of bed, use the toilet and go back to bed.” The school never contacted the parents about the children’s hygiene and she denied there was a smell of urine from the children and that their toys were dirty and suitable for much younger children.

She said when the children went into care she gave them two bags of clothing. She said at access the parents noticed the broken shoes of Child B. The mother had to buy him new shoes. She recalled an incident with Child A at access. When the social worker left the room, Child A wanted to complain and said something in English to female relative Y. Child A begged female relative Y not to share it with anyone, and when the social worker came in Child A said: “It’s not important anymore.”

She explained another incident at access in 2014 near the social work offices. She said: “on that road I saw [Man X and Man Y]. There was a park close to the social workers’ offices where they picked to drink. When I went to see the children they [Man X and Man Y] went to the park and it was a coincidence we met on the road. I knew the others were not allowed to come for access. I am telling the truth.” She denied Man X took child A’s hand and that there was a smell of drink from the mother and the two men. She said later that day she went home, was cooking, cleaning and was happy. Counsel for the CFA said: “The social worker called out to your house at 4.30pm and Man Y was in the house and his eyes bloodshot and glazed?” She said: “I don’t remember.” Counsel said: “The father was asleep on the floor in his underpants?” She replied: “I don’t remember.”

She explained Man X was the boyfriend of female relative Y, and he was there maybe once or twice a week and drank in the house. Man X loved playing with Child B and treated the child as his brother. “If something bad happened to Child B, he would assist him,” she said. Man X did not sexually assault Child B. The mother said the other young women were friends of female relative Y and she knew female Z. The children loved female Z as she used to play jigsaws with them. She denied the female Z raped or abused the children and said, “if she did, she would be reported.”

She met female X through female relative Y and female X came a few times a week to the house to visit the mother. Female X treated the children as her own siblings. The third female visited only twice, was never given alcohol and never sexually abused the children. The mother said she did not see the three females but kept in touch with one of them. She explained: “When I lived in my own country I had my best friend and in Ireland there are not so many friends. These people [the three young females] don’t visit me much.”

The solicitor for the GAL asked: “The reason the three females, man X and man Y were involved was due to the children and now the children are gone, you have no relationship with them anymore?” The mother disagreed and said: “They don’t visit as there is no vodka.”

The mother said she never sexually abused or raped the children. She never allowed anyone else sexually abuse or rape the children. The solicitor for the GAL asked: “the children are lying about the abuse?” The mother responded “I don’t know but I believe they were told to say it.” She denied she had shown Child A pornography and said “I’m an adult and I’m not watching it, why would I show it to a child?”

She said she did not make the children rub their private parts with teddy bears as alleged. “The children were always happy and could not wait to see us again. The children might be traumatised but we must consider what happened at the places they stayed and we have to take their view into account. The children wanted to come home at access,” she said.

She agreed she was a bad mother for not turning up for access but said she did not drink since her birthday in 2015. She often lied to the social workers because she “was afraid of the consequences, afraid the social workers would not allow me to see the children and afraid to say out loud that I was drinking.” She said she lied once and was not allowed to see the children.

The mother was trying to learn English and would tell the children she missed and loved them and it was hard without them. She would teach them about their own traditions and prepare a plan about their own culture. She said: “I want to make sure my children are safe, and not fed false information. I wish, with all my heart, to have my children back.”

She said she was capable of putting the children before herself and the father. “I would support the children and clarify how they felt and listen to what they wanted to say. I would trust them and I would break up with the father if there were allegations against him and bring the case to the Gardaí. There is a greater love for the children [than the father]. If I get my children back, no one will have them for more than two minutes as I need to make up for the time that I did not have them” she said.

Counsel for the CFA said: “The only way of keeping the children safe is to make a care order to the age of 18.” The mother replied: “I disagree with what has been said. I hope every statement has been taken into account and that we will be given a chance to be a full and happy family again.”

TheGuardian ad Litem

The GAL was appointed for Child A and B in 2015 and for Child C in 2016. She had prepared a number of reports and the judge read the reports. The GAL said she was recommending a care order for all of the children until they attained the age of 18 and she stood over the recommendations contained in her report.

Recusal Application

In April, the GAL communicated to the court that Child A and Child B, who are of primary school age, had expressed an interest in meeting the judge. The father expressed his dissatisfaction with this proposal but both parents did agree and the meeting went ahead. The GAL and foster carer were present in the room while the judge met with the children. The meeting was recorded on the DAR and a note of the meeting was circulated to all parties.

On reviewing the note of the meeting between the children and the judge, counsel for the father made an application for the judge to recuse himself from the case. The barrister noted that she was doing so “with extreme reluctant”, especially given the length of time that the case had been running.

The basis for her recusal application was that the judge had not adhered to the safeguards set down in the case of DE.She alleged that in the course of the meeting the judge asked “open questions” of the children which gave rise to him gathering new evidence in the form of additional disclosures from one of the children.

She said the questions went beyond ascertaining the children’s wishes and feeling into the “why” of those wishes and feelings, and by so doing fell into error. These disclosures had not been part of the CFA’s case, which was now closed, so they had not been put to the respondent parents nor had there been an opportunity to cross examine witnesses on these disclosures. She said she believed there was no mala fideson the part of the judge but the test was whether an objective bystander would take these disclosures into account and she believed they would.

Counsel for the mother said that in her opinion the meeting with the children strayed outside of the scope of what was agreed in DEand the court now found itself in a situation where it had gathered five new pieces of evidence. She asked the judge to disregard the meeting in its entirety. However, she was not aware of any case law that would allow the court to disregard the child’s evidence. She commented that an option might be to state a case to the High Court as to whether the court had the power to disregard the evidence.

Counsel for the CFA said he did not see any breach of the principles in DE, he noted it was not a private discussion and all parties have been made aware of the contents of the meeting. He said the purpose of the meeting was “to benefit the children, to give them a sense of involvement and connection to proceedings, an opportunity to know who is making decisions about them and to reassure them that they have been understood”.

He commented that the children would not have that reassurance and it would be “wrong and verging on the abusive” to have stopped the child from talking. The barrister queried if it was correct to refer to ‘evidence’ in this situation as evidence refers only that given under oath or in an affidavit. He said the children’s disclosure offered very little new information to the existing allegations that comprise the CFA case. He said the CFA was happy to close its case on the heard evidence and was happy to disregard the evidence heard by the judge during his meeting with the children.

The solicitor for the gad litem (GAL) supported the CFA’s position. The judge met the children at their request, the parents were aware that the meeting was taking place, the GAL attended and the meeting was recorded on the DAR. She noted: “The onus is on applicant to establish objective bias, I don’t believe that this been established on the balance of probability”.

The judge said: “What the boy said I had no control over.” The judge declined the application that he recuse himself from this case. He noted that it would be a “totally disproportionate measure on my part to recuse myself”.

Female W

Female W, the final witness, was called to testify by counsel for the mother. The witness was not from this jurisdiction and English was not her first language, however, she gave evidence without the assistance of an interpreter.

At the time of giving evidence she was twenty years old. She came to Ireland with her family when she was 12 years of age and got to know the family in this case shortly after arriving in Ireland. She lived close to where the parents were living and “visited every day”. She described the family home back then as “clean, everything was good” but admitted that when the parents were drinking the house was a mess, “dirty”, it was “not good”. She said she had visited the parents in their new home and it was “better now”, the parents have stopped drinking since the children were taken away.

In response to questioning she acknowledged that she knew or had met the other people identified during the hearing, the two other teenage girls, Man X, Man Y, the two female relatives and partner. There was one individual she said she not met, a male relative.

She said when the parents were drinking the children were with her and the female relative. She said the children were never dirty. She said she never drank or saw the other teenage girls drink in the house, nor had she stayed overnight or witnessed anyone staying overnight. The allegations made by the children against their parents and allegations of sexual abuse against her were put to her. She vehemently denied all of these allegations and said maybe the sexual abuse “happened in another house”.

Female W told the court that Man Y “fancied her”, she described that “he texted her every day, bought her things, everyone knew it”. The court was informed that at that time Man Y was 29 or 30 years of age and she was 12 years of age. She used to be friends with Man Y but she was no longer had any contact with him. She said she did not have a relationship with Man Y.

She added that when she was 13 or 14 years of age he started to harass her. He would come to her home, banging on the windows and shouting “I love you” and was jealous. In the past few weeks, she secured a judicial order against him so he can no longer talk to her or go to her house.

She lives with her sister and her sister’s child and the child was not able to sleep due to these activities. She complained on several occasions to the Gardaí who had called to the house during these disturbances. She admitted that Man Y’s behaviour had frightened her. When asked did it worry her that Man Y was in the house of the family in this case she said she did not care because “she was just with the children”, he did not harass other children and did not touch the children. In response to questioning she said she had no one in the court today to support as her family members were working.

Final Submissions

The legal representatives provided their final submissions to the court on the case orally and also in written form. Counsel for the CFA said the CFA was seeking a care order in respect of all three children under s.18 of the Child Care Act. He said that under the new constitutional framework of Article 42A the threshold for State intervention was similar to s.18, the best interest of the children and having regard to the views of the child were now elevated to constitutional principles.

The children have said they did not want to go home nor did they want to have access with their parents. The burden of proof was on the CFA and the standard of proof was balance of probability. He reiterated and summarised the grounds under which the CFA was seeking a care order – that both parents neglected the children over time and abused Child A and Child B sexually, physically and emotionally, caused them emotional trauma and allowed the children be sexually abused by others. The children were subjected to parental alcohol misuse and serious domestic violence disturbances and there was a chronic and serious lack of school attendance.

He claimed the parents were untruthful to social workers in respect of their alcohol abuse up to July 2015 and did not have insight into the presentation and behaviour needs of their children. The children were insecurely attached to their parents and did not want to return to live with them. He noted that the CFA’s findings did not rest on any one witness, a consistent picture emerged from the testimony of social workers, foster carers, and from the children themselves in their Garda interviews and work with the psychologist.

Counsel for the CFA noted that Man Y, the man who was “chasing after a 13-year-old girl who he fancied and everyone knew”, was found to be upstairs in the house with Child A when everyone else was under the influence. In relation to drug misuse, counsel said the father said the “white stuff” on the table was “washing powder”, however one of the children mentioned that they smoked the hard stuff which was hidden from Gardaí.

The children were consistent from the start that they were physically abused by both their parents. Shortly after it had been explained to the children that an interim care order had been granted the children disclosed sexual abuse. Counsel said: “It was the court order that made the difference, [Child B] said: ‘We’re not the foster kids anymore, because we have to live with [foster carers]’”. The details of their lives disclosed by the children – the drinking, late to school, lack of food, lack of clothing and bedding, poor house hygiene, the people in the house, the fact the parents slept downstairs, the domestic violence experienced by the grandmother – all turned out to be true.

The children had proven that they were “able to a give truthful account” while the parent had not. The children’s accounts corroborated each other in terms of the individuals who allegedly sexually abused them, they also describe grooming behaviour of watching porn with their mother and practicing with a teddy bear. He acknowledged that there might be slight inconsistencies between the children’s accounts but said: “The children are not on trial” and they might be confused if they were abused on multiple occasions.

He noted the unusual age gap between the parents, when the parent’s relationship began the father was 34 years of age and the mother was 18 years of age with an infant child (who he was not the father of). He said no explanation had been given as to why there were “three petite, pretty, young girls, aged 13, 14 and 15, at the time at parties in the house”. He pointed to inconsistencies in the evidence of the witnesses called by respondent parents.

Counsel for the mother provided her closing submission. She acknowledged the standard was the balance of probability and said: “The more serious the allegation the more convincing and steadfast the evidence was needed to tip that balance.” She said from 2012 to mid-2015 the parents “operated a nest of neglect for their children, the picture painted is of mess of a home, and neglectful circumstances that the children had to endure.”

She addressed in turn each of the 12 items about which the CFA were seeking the court to make findings of fact. She pointed to weaknesses in the evidence including that the children’s evidence varied, the psychologist admitted the test had been incorrectly administered, the medical evidence did not prove sexual abuse, no witness was called in relation to school attendance or the presentation of the children while attending school.

The barrister questioned some of the evidence given by Foster Carer A, and criticised how the foster care had reported the disclosures and communicated with the children. She also pointed out that the Garda who conducted the interviews with the children was not called to account for her training and initial conversation with the children, and that no criminal charges had being brought. She said the most recent social workers had no concerns about the capacity of the parents to parent or about their new home, save for the allegation of child sexual abuse.

The mother accepted drinking and that the house was a mess which was not acceptable. She said the parents “have reformed”. The mother denied sexually abused the children. The barrister communicated that the mother admits she was “a terrible mother when the children were in her care” but she had become sober and had learned English. She said: “The allegations will haunt her for the rest of her life”. The barrister noted that if the court makes a finding of fact in relation to sexual abuse the mother might “not have care of any future child”.

Counsel for the father adopted the submission of the barrister for the mother as it related to the father. She said the weight attached to the Garda DVDs “needs to be quite low” given that during the cross examination of the psychologist a fundamental concern arose as to whether the child was referring to vaginal or anal penetration. The barrister called for the evidence of the Foster Carer A to be disregarded in its entirety given that it was second or third hand hearsay and that she was not an expert. She noted that if the court makes a finding of fact in relation to historic neglect but not in relation to child sexual abuse then the threshold would not be reached in relation to Child C. In such circumstances she would be calling for a supervision order with a reunification over a period of time.

The solicitor for the GAL reminded the court that the parents commissioned a report but choose not to disclose its finding to the court. She also disputed an issue raised that the CFA was considering returning the children prior to the child sex abuse allegations being made. She supported the CFA’s application for a care order for all three children up the children reaching the age of 18 years.

In addition, the Child and Family Agency (CFA) applied to extend the interim care order in relation to each of the three children by consent subject to a reasonable date. The social worker gave evidence to support the ICO which was granted by the court. An application by the parents in relation to access was adjourned.

A decision from the judge is awaited.