Judgment delivered, care order granted for “traumatised child”

See also Vol 3 of 2014: https://www.childlawproject.ie/publications/case-histories-2014-volume-3/interim-care-order-for-young-girl-with-sexualised-behaviour-and-language/

See also Vol 2 of 2014: https://www.childlawproject.ie/application-adjourned-for-investigation-into-very-distressing-behaviours/

In July 2018, a full care order was granted in the Dublin District Court for a young child. The care order application had commenced in 2015. The judgment was read out in court, the child’s mother and grandparents were present. This report is of the judgment as delivered, not the evidence as given during the hearings. Reports of the preceding interim care order applications have been published on the CCLRP website.

The Background

The child (B) was placed with her maternal grandparents in voluntary care on an informal basis when she was born. The care of children is shared in the Travelling Community, according to the evidence provided to the court by a psychologist.

The List of Witnesses

The maternal grandmother gave evidence and three character witnesses also appeared for the grandmother. During the substantive part of the hearing, which was heard over 22 days, witnesses included the guardian ad litem (GAL). The case came back to court for case management as well as other applications.

The judge had to analyse whether enough effort had been made by Child and Family Agency (CFA) to assist the child’s mother and grandparents. Evidence had been given that over the years the CFA had made efforts to assist her parents, in particular in 2008 when it became clear they were struggling with their relationship.

At that point a child protection meeting was conducted and it was concluded that B’s brother, the older child, A, should be in the care of maternal grandparents so that the parents could address their issues and the aim was reunification of A with his family before child B was born.

But there was strife in the family. Child A, the older child, began to attend crèche. B was born with withdrawal symptoms, failed to thrive and she did not reach her developmental milestones. There was evidence of inconsistent attendance at the public health nurse (PHN) appointments and she went to hospital due to concerns about low weight gain. A case conference decision was made that A would be cared for by the grandparents to allow the parents to address obstacles in caring for B.

This was an informal family arrangement but children A and B returned to their parents and for a period it seemed that the parents were making strides. There was another case conference in May 2010 which explored why it was that the family had problems and what they were. These were identified as failure to engage, addiction issues, non-compliance with social workers, strife and domestic capacity.

The agency did consider a section 36 foster care arrangement with the grandparents but at that point an allegation of abuse was levelled by the parents against the grand-parents and a serious allegation of physical and sexual by the grandfather. This was investigated and it was concluded that the allegation was unfounded, but the agency did not approve the grandparents as foster parents. However, the children were still placed via a private family arrangement with the grandparents and a maternal aunt in May 2010.

In Oct 2013 the manager of the daytime childcare service contacted the agency duty social worker and reported an incident concerning child B of sexualised behaviour and language. She was four years old at the time, the behaviour was beyond the age and stage and development of a child of her years. The allocated social worker began to support and offer advice to the grandparents.

The social workers liaised with the crèche and the little girl was seen in 2014 by an assessment and therapy centre for child sexual abuse. Several family meetings were held, there was an A&E appointment, a paediatrician referral, and the agency facilitated the procurement of an independent professional for a parental capacity assessment. Therefore, the judge was satisfied that there were sufficient efforts to keep B with her family.

The proceedings had commenced in January 2015 and the judge had considered the position adopted by all of the parties. The CFA had filed a summary of facts document, the proposed findings, a list of proposed witnesses, a history and chronology of the case and a response received. The agency findings were that B was neglected in the care of her mother; there had been exposure to sex abuse; exposure to sexual content and poor sex boundaries in the care of her grandparents. The grandparents could provide no explanation for her behaviour, this had led the agency to conclude her health, development and welfare had been avoidably impaired or neglected and a care order was necessary till the age of 18.

The mother and grandparents strenuously denied neglect or sexual abuse, exposure to sexual content or poor sex boundaries. The agency was put upon full proof of all the facts in the case and the GAL supported the application of the agency in seeking the care order.

The judge heard evidence chronologically from the clinical psychologist, the social worker and the GAL. In respect of Section 23 [of the Children Act 1997] – to admit certain statements made by B to certain individuals as evidence of fact contrary to the hearsay rule – the judge heard two child specialist interviewers from An Garda Siochana; a project worker in B’s creche, a creche worker, a pre-school teacher, a psychologist regarding the parenting capacity assessment, a social care worker with the fostering service, one Garda, the PHN, a teacher, an access worker, an endocrinologist, a foster carer, a psychotherapist, an allocated social worker from 2013, a consultant paediatrician, a GAL for Child A, a social care worker, a forensic clinical psychologist, the grandmother, three character witnesses for the grandmother, one of whom was from a Travellers’ organisation, and B’s GAL.

The judge considered the evidence under the following headings: the crèche; medical evidence; parenting capacity assessment; the psychological evidence, the Garda specialist interviews; the disclosures to the foster carer; the social workers; grandmother; family members; character witnesses and the GAL before engaging in an analysis of the evidence.

Hearsay evidence

There were 20 applications to admit hearsay evidence under Section 23. Everybody had wanted some hearsay admitted to evidence but objected to other statements. The judge requested that a combined hearsay statement be furnished and this was now in booklet 7, set out into schedules. No one suggested that Child B come into court and give evidence, either directly or via video evidence, it would have significantly impacted on her health and welfare.

The judge had considered the schedules of booklet 7, and said it was not in the best interests of the children to give evidence either in person or otherwise. She received an application objecting to the hearsay statements of the children on the grounds that it was not in the interests of constitutional justice. She had considered all the case law in the submissions and had decided to admit the statements.

However, she determined that statements made to people who were available to give evidence would be admitted and statements made to people who were not available were not admitted.

History of family unit

Some of the history of the family unit was well documented in the evidence, interconnections between family members were key elements relevant to the findings of facts. The agency had serious findings against the mother and against the mother and grandparents. However, the evidence before the court had to be cogent. A finding of fact had to be based on evidence including inferences that could be properly drawn on the evidence and not on speculation or suspicion.

Having considered all the evidence, the judge said her findings of fact must be explained, so she said she would refer to some of those findings but did not intend to outline the detail of the sexual behaviours and language.

Findings of fact

The childcare services and primary school that B had attended were in a community in a recognised area of social need. There were services for babies up to three in the crèche facility. B commenced there in 2012, each section had 13 children. The next service in the crèche was for the pre-schoolers. B commenced in there in 2013 when she was about four.

When she began in the 0-3 section in 2012 she was three years’ old. She was described as a tiny child, “spicy” was the description used for her choice of language, she was not toilet trained, she still had a bottle, her behaviour was significantly behind those of her peers, her basic physical care was haphazard. In the second year of the service when she was in the older section, the nature of her sexualised behaviour worsened, the manager of the service notified the CFA of what they saw which was extreme and graphic and well beyond what would be considered normal curiosity of a child’s body parts. Evidence was given that the staff had not seen this kind of behaviour manifested in the service before or after B.

The child was brought and collected to the crèche by multiple carers, one staff member who worked in both sections with B particularly noticed her use of language and behaviour and the significant change in her demeanour, she had become lighting quick and aggressive and lashed out at staff.

In Oct 2013 there was an incident that involved B and another child and staff began to monitor and record the incidents. A project worker there had to provide additional support for her as she transitioned from the first section in the crèche to the second.  She had difficult and aggressive behaviour, she would strip naked in class, point to her genital area and behave aggressively, she used graphic sexual language, threw toys when in a tantrum and two staff members needed to supervise her. Her use of particular words to identify body parts was noted and there was a marked changed in her presentation in 2012.

The judge said she was satisfied that the recorded statements she made to these three staff members should be admitted as hearsay.

She began primary school in September 2014 and had shared access to an SNA with three other children; this increased later to a full time SNA along with reduced hours. However, this had not been adequate to her needs, she was in the care of the agency at this time and her behaviour continued to cause concern for the same reasons as the crèche. She had two bad days out of three, anything might trigger a meltdown in class.

Her Junior Infants teacher said she was a difficult child to teach in a mainstream class, she had extended periods of agitation, which worsened from October 2014 onwards. She had destructive, aggressive, volatile behaviour and sought out the company of older girls in the schoolyard. Her teacher thought any mention of family life could be a trigger.

B was removed from class physically if required by the SNA and teacher, this was both damaging and counterproductive, albeit necessary in order to protect staff and other children that were vulnerable in the class. The judge found this to be fair and accurate evidence. B’s emotional and behavioural disturbance was beyond the ability of the school to manage and cope with. By this time a full time SNA was allocated to the school but a pattern of behaviour had been established.

Medical evidence

A public health nurse had reviewed the family’s records and noted the level of concerns due to the mother’s family circumstances, she had been mainly concerned about her history of not keeping appointments, B’s low birth weight and her failure to thrive. When she was eight months’ old the PHN was concerned the mother could not cope as the baby was grossly underweight for her age, she would have been concerned about a child’s condition at that weight at three months, let alone eight. The baby’s vaccinations were six months behind and she had not attended for an eye appointment at the hospital and the door was not answered at a home visit. The public health nurse had serious concerns for B.

A paediatric doctor, Doctor 1, had seen B when she was five years old, when she had been referred from A&E in March 2014. A full history of the child was taken from her grandmother, this included neo-natal abstinence syndrome and the doctor was aware of the child’s history of care under other doctors. She did a general examination of her, which showed no evidence of physical trauma and noted all this in her summary, but this did not prove or disprove penetrative trauma or rule out sexual abuse, including repetitive penile penetration.

The judge noted that B was undergoing an assessment of needs under the Disability Act in the lead up to attending primary school. The family placed great store on proof that she remained a virgin as it was culturally important.

B had been diagnosed with a condition of precocious puberty but this did not provide an explanation for her sexualised behaviour or language. A US study made a link between abuse and early onset puberty. Doctor 1 did not think it could be triggered by a diagnosis of neo-natal abstinence syndrome or failure to thrive. Failure to thrive was more likely to be seen in a third world country. Early onset puberty could not be linked to one reason alone. Her behaviours were not linked to early onset puberty either.

A parenting capacity assessment (PCA) was commissioned in 2014 to establish whether the grandparents had a defined psychological difficulty impeding their ability to care for B and if they had to define the remedial steps necessary to remedy it. The PCA was carried out by Doctor 2.

However, when speaking to the grandmother the information given was that that within the Travelling Community she would have an overarching role in B’s care and would be supported in it by the extended family.  Therefore, the task had to be reframed to respectfully accommodate the extended family to avoid bias. The PCA took into account cultural issues and educational issues to ensure no bias.

What emerged was that the collective members of the family were involved in the practical tasks of raising her, which was normal in their culture. Children in the Traveller community play outside very frequently and were quite rough. The responsibility to keep Child B safe then rested with the teenage girls who had the task of chaperoning her.

The sexualised behaviour and language that B was using was not normative for the Traveller community, this began when her aunt got married and moved away. The family accepted that her language and gestures were a bit “spicy” but not as such sexual and it was considered to be amusing by the adults caring for her. On reflection they said that something serious of a sexual nature must had happened to her in the extended family care but could not conceive how. There was an acknowledgement that she must have been abused but acceptance was at best ambiguous.

Doctor 2 said the grandparents’ care for the little girl, while culturally normative, would not work. They could not manage her now and her behaviour was too complex, her grandparents had aged physically after the forensic examination of B, it had “knocked the stuffing out of them”.

The grandfather, whose health had deteriorated, had left the family home to allow Child A, B’s brother, to remain in the care of his grandmother, whose health had also deteriorated. Each grandparent was ambivalent of accepting any part of the girl’s abuse.

Doctor 2 concluded that the grandparents did not have the capacity to care for A and would not be able to do training on the basis of the adaptive cognitive assessment, their age and health were also impediments. They were a lovely couple who were terribly distressed and bewildered by B’s loss from their household. Child A was currently in their care and remained on the child protection system.

The psychologists

The forensic clinical psychologist, Psychologist 1, gave evidence in June 2014, Dec 2017 and Jan 2018. Originally his role was to give advice on B’s language and sexualised behaviour. She was four years and nine months old when he first met her. His second report was on the video interviews involving the Gardai. His report was strongly indicative of inappropriate sexual exposure and he had considered it highly likely that her behaviour had been exhibited at home as well as the crèche and that she was at risk of further sexual abuse if she remained at home.

Psychologist 2 met the child when she was seven years’ old and assessed her cognitive functioning, her emotional attachment and psychological makeup. He found that she exhibited all criteria of emotional and behavioural disturbance due to exposure to trauma, something significant had happened to her which was suggestive of exposure to sexual content, exposure to sexual behaviour, exposure to pornography, direct intentional sexual abuse and witnessing sexual acts. She had made a statement to the foster carer that indicated abuse.

Doctor 3, from the CARI foundation, a voluntary organisation providing child centred specialised therapy and support to children, families and groups affected by child sexual abuse, had never assessed her directly but had been engaged to provide a psychotherapeutic assessment based on meetings with all those related to her care. He found that B suffered from post-traumatic stress disorder; trauma, neurobiological effects and severe episodes of disassociation.

Garda interviews

The DVDs of the forensic interviews carried out by two Garda child specialist interviewers were played in court. Garda 1 had received training in that field 10 years ago and was a senior house office in the station with other duties. The request for the specialist interview was received in June 2014 by email.

Garda 2 was a full-time interviewer working in the location where the interviews were held, Garda 1 regarded himself as part-time. In total there were 16 Garda stations in the city and the draw was significant on the interviewers. Garda 1 was the only male one in this region.

The first interview with Garda 1 in 2016 was meet and greet, B was “very chatty, a bit wild”, it had been a 40-minute informal meeting. The next meeting, which was about rapport building, took place in the foster home and also lasted 4,0 minutes.

In July in the specialist suite Garda 2 took the lead, B was shown the rooms and a board of drawings created by other children who had visited there. The next meeting, the clarification meeting, which was an unrecorded meeting, was late in the year, during which B spoke about not liking her grandfather as he put a needle in her. The next day during the first recorded interview B said that she did not want Garda 1 listening in in the recording room.

The notes from that first recorded interview were of what happened, when, who was present, and any sensory or emotional content. B did not provide free narrative in the recorded interviews, but she did make a statement in the unrecorded interview, so Garda 2 brought her back to that, it was on one handwritten note which she had recorded. B had said that [her home location] was not safe, that she did not like grandad because he put a needle in her.

The forensic clinical psychologist was critical of the interview process, the child was four years and nine months when her language and sexualised behaviour were identified and the specialist interviews took place two and a half years later, there had been a delay in asking for the interviews. Garda 1 said this was due to a lack of resources. The psychologist said that there was a fragility to young children’s memory and delay should be avoided at all costs.

The investigating Garda had adopted the Children’s First Guidelines and said that he had taken on board B’s psychological characteristics. The psychologist was not sure if this had actually happened. Garda 1 did not accept that the level of strategic planning for the interview was deficient in any way or that the style of questioning was suggestive or that conflation had resulted.

No unrecorded meeting had been noted. The truth and lie section of the meeting was well done, according to the psychologist, but he was critical of the manner in which the second interview was conducted, finding little sense of free narrative, with the child recalling the gist rather than a specific incident. While the forensic psychologist was not critical of closed questioning as such the interviewer had continued to rely on closed questions, her psychological difficulties would further increase her difficulties during an interview with closed questions. The psychologist accepted she was a difficult child to interview and that she had been sexually abused. He was disappointed at the approach adopted, any repeated interviewing might undermine the evidence and he would attach more weight to any spontaneous statements recorded contemporaneously.

Psychologist 1 had found that the Garda interview represented a perfect example of an approach that failed to elicit evidence and was against her best interests, only a small number of police child forensic interviews were used in criminal proceedings. Psychologist 2’s interview would more than likely have elicited information that could have been used in the family proceedings had his interviews been carried out prior to those of An Garda Siochana.

B was in the interview suite four times with Garda 2 – the first visit was short, the next one was to see the room, then she had two interviews. Garda 2 said the interviews could not be planned as they had to assess her cognitive ability. The Gardai took the position that it was their task to form their own view. Her interview in the family home was part of this.

Garda 2 said B had made a disclosure to her in an unrecorded interview.  When questioned on a joint interview with the Agency’s social worker, Garda 2 said that it was not a possibility because the social worker had not been given specialist training. She did not agree that the interviews were too long or could have benefitted from a psychological input and did not accept the criticisms from the forensic clinical psychologist.

The Garda in the recording booth was involved in pre-planning. Garda 2, whose hand-written notes were misplaced, gave in typed notes instead.

The judge analysed all of this, the interviews, the psychologists’ reports and the DVD recordings. The Garda specialist interview was crucial. As noted by Psychologist 1, the forensic clinical psychologist, B was difficult to interview. Garda 1 acknowledged that the interviews should have been carried out sooner. The delay from the investigation request to the interview and the delay from 2014-2016 in carrying out the interviews must also be considered.

Free flowing narrative was more valuable than information from closed questions. It was put to the specialist interviewers that they failed to keep an open mind and they anticipated an outcome in light of what they thought they should expect to hear. Garda 2 said that this was not the case. The judge said that the interviews cannot be afforded much forensic evidential value and the unrecorded statements must be given greater value.

Foster carer

The foster carer was cross-examined for two days. She was committed to B despite the many challenges that she brought with her. She acknowledged that she is a loveable and much-loved child, bright and with a sense of adventure, with much promise if she could establish trusting relationships where she felt safe, but what made her feel safe was difficult to know, unsafe feelings were easily triggered.

Records of the foster carer were exceptionally helpful, said Psychologist 1. The child was severely traumatised, this was not limited to but included sexual abuse, she had profoundly abnormal behaviour which was consistent with severe and complex trauma, there were many such events and memories triggered severe and adverse emotional responses, she had intrusive thoughts, she had hyperactive and dis-associative behaviour and a disorganised attachment.

Statements made by B to the foster carer came in batches between August and Nov 2014. This was clearly troubling for the foster carer but there were volunteered by B in a very spontaneous way.

Other statements were volunteered to the foster carer by the child. For example, she had called her brother “mickey boy” and was this was accepted as evidence.

Another allegation was about the first time she said she was sexually abused by her brother, her grandfather and his friend; an allegation that her grandmother knew, B mentioned “needles and shampoo for sex”.

There was an allegation of abuse against the foster carer.

Psychologist 1 found the third report of the foster carer to be honest, authentic and documented critical psychological phenomenon. The child’s behaviour was consistent with severe and complex trauma that included and was not limited to sexual abuse.

The judge did not believe that her foster carer coached B and agreed that had B continued with Psychologist 2 a reliable and credible narrative might have emerged. She put weight on the statements made to the crèche, the school and the foster carer.

Social work and social care evidence:

The social workers were experienced and were extensively cross-examined regarding their record-keeping about what each member of the family had said, when and how it was recorded. They were cross-examined about their professional management of the case.

There were discrepancies in the narrative of abuse and these should have been assessed in the child sex abuse unit. Every effort was made to provide an explanation for the behaviour of the child, said the judge.

A witness from the parenting plus programme gave evidence that the family were welcoming, that the grandmother did her very best to take on board the advice she received and that access went well when she supervised it.

Another social worker gave evidence where she explained that she was influenced by the PCA of Doctor 2, the grandmother had not engaged in the PCA and she could not consistently care for the girl, as much as she loved her, but it was because she loved her that she had consented to her being cared for by others. The social worker indicated that B’s dis-regulation following access was difficult to understand and predict. Triggers resulted in bad dreams, and some triggers were people that reminded her of her grandad, the social worker used flashcards now with B so she could explain her feelings. There was a multidisciplinary team around B now, including a care-worker from the Traveller community.

The social worker had given evidence that B required a safe, predictable foster care placement with a calm carer who would not respond inappropriately to her challenging behaviour. The cessation of access was difficult for the grandparents and the family. B could be overwhelmed at access, particularly by the generous gifts or food and while this might be part of the Traveller culture it was just too much for her to cope with and could trigger certain behaviours. Cards given to her saying that she would come running to access if she knew how much she was loved were an emotional overload for her.

It was now two years since there had been access with her brother. The rationale for seeking a care order was well set out.

Twenty-one access visits were supervised over the year. B had been spoon-fed at times although she five years old, the social worker had tried to limit the number of family members who came to access. The grandparents were very good to work with and had followed her suggestions, she had explained her reasons for the suggestions. The social worker accepted that her record-keeping was not always comprehensive. She had found that the grandmother had failed to put down boundaries and was inconsistent.

The grandmother

B’s grandmother gave extensive evidence with regard to her extended family structure, she assumed the care of children A and B when their mother, her daughter, was in a violent relationship and dependent on drugs. B’s grandmother attended every appointment for B due to her failure to thrive.

She became settled in the ‘80s when life on the road became too hard. She raised her own children and others, she saved for them and provided for their weddings. She gave the history given of her daughter’s addiction and relationship. Her grand-daughter had not been an easy child, and the grandmother thought she might have ADHD like her brother. She had had a lot of help from child B’s aunt, she missed her terribly.

She described child B as very bossy, she ruled the roost, that B picked up some idiosyncratic words from other Traveller girls and she did not see sexualised behaviour at home, she was devastated when B had made the allegations. B did behave in an unregulated way at home, she had tantrums, would strip off and would make herself sick. The grandmother was bewildered by the allegations.

She had only missed one court appearance in four years. She had said “little girls tell lies”. She accepted that B had made some statements suggestive of sexual abuse but did not accept any of it, she indicated she could not believe “those things had happened”, others made little sense to her, and she thought the allegations B had made against nine men could not be believed, also B was never upstairs alone with her brother. Character evidence was given for the grandmother.

Child B’s aunt:

Her aunt described B as “a lot of responsibility, always crying”, she had to be tricked into eating, she had poor speech, and problems started when she was two. The aunt had to come back to comfort her niece after she got married. She had been very upset when B got taken into care, she thought that B was jealous that she got pregnant. She concluded that her niece believed that they “all abandoned her”. She agreed that she had been spoiled, loved, cared for and to her knowledge she had not been exposed to abuse, “no one would harm a hair on her head”, she was never harmed in the household and she had picked up the language from the teenage girls.

B’s grandfather participated in the PCA, he did not give evidence, he was unwell.

The child’s mother did not give evidence either, there was no inference drawn from either person not giving evidence.

The GAL

The GAL agreed that B had a very complex presentation and could still become enraged and angry for no apparent reason. Triggers were hidden but could spark off rage or disassociated behaviour, especially in school. The child’s mother had had a very difficult relationship with her partner.

The GAL felt that the Garda specialist interviews were unduly delayed, that it all took too long to happen. Three full hearing dates were lost because of the delay in the Garda specialist interviews. B was full of nervous energy and hyper at times, the grandparents were compliant with advice even when it was difficult for them. The case is now managed by a clinical team.

She supported the application for a care order until 18 as a proportionate measure, the impact of it not being made would be devastating for the child. Her behaviour was due to sexual abuse while in the care of her grandparents by one or more persons, she was a sexualised child and her behaviour was concerning to all experts.

Conclusion

This a straightforward case, said the judge. She was satisfied to make the following findings: Child B was neglected in her mother’s care and came into the care of her grandparents at 10 months, she was exposed to sexual behaviour or content by a person or persons unknown, she was exposed to sexual language in the care of her grandparents; she was a traumatised child; her behaviour was troubling; the management of her behaviour was beyond the capacity of the grandparents; the judge accepted the PCA assessments as well as the conclusions of the two psychologists; her behaviour was consistent with complex trauma. The judge did not accept the statements as outlined in the specialist interviews.

She found that the health, development and welfare of B had been avoidably neglected in an unintentional way by a combination of factors, including the complexity of her behaviour and the lack of boundaries. B required the protection of a care order until she was 18. The evidence had reached the statutory threshold under section 18 of the Act.

The experience of harm in the care of her parents and grandparents was concerning, she was satisfied that the grandparents’ lacked the capacity to care for her safely for the reasons stated, and she granted a care order for B until she was 18.

The judge said that she was not making an order under Section 37, or arrangements under Section 47, and reminded the CFA to complete a type of family welfare conference with the advocate for the grandparents in order to marshal the resources and goodwill of the family in a collaborative way and to consider access. She adjourned the proceedings to a date in November to consider section 37 and section 47 directions at that time and the costs.