Manager of HSE disability service summonsed to court – 2021vol2#12

The Child and Family Agency (the CFA) sought to extend an interim care order in respect of a teenage boy where his placement had broken down. The child had complex needs, including a disability diagnosis, and the court gave a direction under Section 47 of the Child Care Act that the Child and Family Agency should issue a witness summons for the manager of the HSE disability service to attend court.

The judge was reminded that this was a matter that he had previously heard during the summer and the application for an extension of the interim care order was with the consent of the mother. The court was informed that the placement had broken down at the end of the previous week and the child had been returned to a residential placement where he had previously been. The CFA solicitor said that the GAL had some insightful observations into the placement and there had been recent involvement with the Tusla assessment service ACTS and the child and adolescent mental health service, CAMHS. The CFA solicitor said that there might be an application by the mother and the GAL or both of them to join the HSE as a notice party.

The barrister for the mother reminded the judge that he had heard extensive evidence on the previous occasion in respect of the placement and described it as a “long and winding road”. He said that a placement had been found but that the child was again in the same placement which had been deemed by the court to be inappropriate previously. The mother had welcomed the input of the ACTS assessment and the child had been engaging on a weekly basis.

The barrister said that the “primary concern” now was that the child had incurred criminal charges “which the mother said was always inevitable”. The court was told that there were charges of alleged criminal damage and that “we are back where we were” in the summer. The assessments had identified medical and disability needs but that “it remains a very concerning situation”.

The mother’s barrister said that the residential placement that the child had been returned to was “not a placement but an emergency placement” and there was no plan as to where the child was to go going forward and “all options need to remain on table.” He said that the situation needed proper consideration by all professionals and if secure care was required it needed to be looked at and for a plan to be made.

The barrister stressed that the child would shortly be transferring into early adulthood and at that stage he would no longer be in the care of the CFA and time was “running out”. He said that the mother was also of the view that a once weekly appointment for the child, who was currently in a crisis situation, was not sufficient.

The barrister highlighted a recent judgment of the High Court by Mr Justice Barrett which outlined the responsibility of the HSE services and although the child was in the care and responsibility of the CFA, the HSE had to be involved in the discussion. The barrister said that if the GAL moved an application to join the HSE as a party the mother would support that, but the mother was not moving that application.

The solicitor for the GAL told the judge that “significant events have happened”. He said that the breakdown of the child’s placement had had the consequences of criminal charges before the court and the child was granted bail with significant conditions attaching. The solicitor said that a “worrying aspect” was that from enquiries made by the GAL the child had “actively brought about the situation that the placement came to an end”.

GAL’s solicitor: “He was very aware of what was going on and that the actions alleged to have taken place were actively designed to bring about an end to the placement. He had said he did not wish to remain on in that placement.”

The court was told that the child had increased alcohol misuse and had further absconsions and was travelling to another town. The solicitor said that because of the child’s age any after-care plan envisaged will require a level of assistance “over and above” beyond the age of eighteen.

GAL’s solicitor: “The CFA requires the input of disability services to achieve its own statutory obligations in terms of an aftercare plan. The child has very little insight into his diagnosis. He does not see that the level of intervention that has been suggested as being needed.”

The court was told that a meeting had been scheduled to take place the previous week with HSE disability services in order to provide a plan but “unfortunately and for reasons unknown the meeting could not proceed in a fulsome manner without the HSE disability services”.

The solicitor for the GAL said that the CFA needed to confirm whether the HSE had been provided with the reports and whether they were “aware of his profile”. The solicitor told the judge that for a child whose needs go across different public authorities there is a working joint protocol between the HSE and the CFA, and it was presumed that the meeting was scheduled with that in mind.

The return of the child to the residential placement was described as a “difficult situation”. The professionals and the mother were of the view that it was an unsuitable and inappropriate placement for him and it remained the obligation of the CFA to secure an alternative placement. The solicitor said that “the one person who is happy with the placement is the young man himself and that is the difficulty we have”.

The solicitor for the GAL told the judge that they were “working against the clock” and the CFA needed to prepare a proper plan. The GAL had no formal application to join the HSE to the proceedings but it was suggested that the judge of his own motion could request the CFA to secure the attendance of the relevant disability service manager to come to court to explain the context and what the HSE know about the young man. The manager could provide an explanation as to the non-attendance at the meeting with the CFA and outline the plan.

The solicitor said that particularly in the context of the recent High Court judgment of Barrett J. it was “important for children who could straddle or come under the scrutiny of both agencies”. It was pointed out that the child in the High Court case was not in the care of the CFA and the fact that this child was in the care of the CFA “strengthens the need for both to discharge their obligations” and where disability services are required it was a matter for the HSE as the young man had been diagnosed with a disability after assessments were carried out.

The solicitor for the GAL told the court that there were criminal charges pending and it had been suggested that substantial damage had been caused and the matter was due back before the criminal courts. The solicitor said that the child’s needs “cannot and should not go to the criminal justice system” where it is accepted by all professionals that the child required a service.

In respect of the child’s perspective the solicitor said that the GAL had worked hard to try and get the child to engage with services, the GAL had brought him to a number of ACTS appointments and that the “GAL will certainly redouble his efforts to bring him back from the brink”.

The GAL did not want the child to feel that his own situation was hopeless because the criminal jurisdiction had been invoked and it was a “matter to keep his motivation up”.

The CFA solicitor said that the circumstances that led to the breakdown of the placement were very recent and the CFA was making efforts to find a placement but as it had been only three days since the breakdown the efforts had “not yielded anything so far”. In respect of the issue with the HSE the solicitor said that she was “in the court’s hands about the HSE” but that usually the HSE would be notified and given an opportunity for legal representation to attend court before a witness summons issued.

The judge asked the CFA solicitor if the HSE disability manager had been invited to the scheduled meeting and whether any reason was given for her non-attendance. The solicitor confirmed that they had been invited, that she did not believe that any reason had been given but that she did not know the circumstances beyond that.

Judge: “The child is in your care. The child seems to be spiralling out of control.”

The judge emphasised that the CFA was in loco parentis and he could see proceedings being issued in the High Court on the civil side. The judge was satisfied to extend the interim care order but said that the “more fundamental issue is to bring the HSE to the table”. The judge sought clarification as to whether the CFA intended to join the HSE to the proceedings and the solicitor said that was in the court’s hands, but if the court proceeded by way of its own motion that it might side step matters. She said that it was “a complex case” and that the social work team were being proactive.

Judge: “I appreciate the efforts but they only get us so far. The HSE need to come to the table.”

The solicitor for the GAL said that in some respects the matter was too urgent to go through the process to join the HSE and as it was a “court of inquiry” he suggested that the judge make a direction to the CFA to issue a witness summons to get the HSE to come to the table to see what services they could provide the child.

GAL solicitor: “The child is in the care of the CFA and acting in loco parentis … If a parent wanted a service or a meeting for a child and that meeting wasn’t taking place what would the prudent parent do? In my submission a prudent parent would invite them.”

The barrister for the mother said that given the urgency of the matter the mother would welcome that development if the court’s view was reflected and a section 47 direction would have more standing. The barrister said that he was “never quite sure why the CFA won’t take action to secure the welfare of the child”.

The solicitor for the GAL agreed with the submission of the mother’s barrister that the court could only direct the CFA to do things under section 47. It was submitted that it appeared to be a discussion on how best to do it rather than whether it should be done and there were three possible ways but the GAL was open to whatever suggestion. He emphasised that the “important thing is to secure the HSE to be involved in the discussion”. The solicitor for the GAL agreed with the submission made on behalf of the mother “if to send a message to the HSE of how seriously the court deems it”, then the court could do so under a particular statutory basis.

The solicitor for the CFA asked whether it was only the CFA that could bring the witness summons.

Judge: “I did ask and you said that you were in the court’s hands. If a person in loco parentis is not taking steps concerning the child’s welfare the court then should direct them to bring that person. It seems to me that in the absence of any proposal from your client [the CFA] and I gave them an opportunity to make a suggestion, you didn’t have anything to say but ‘in the hands of the court’. The court then must take steps to secure their attendance where they have a potentially crucial role to play.”

The judge made a direction pursuant to section 47 of the Child Care Act 1991 that the CFA issue a witness summons for the manager of the disability service to attend court. The judge referred to the High Court judgment and commented that the child in this case is already in the care of the CFA. The judge said that he agreed with the solicitor for the GAL that due to the urgency of the issue there was not enough time to issue a formal application to join the HSE as the child was due to age out in six months. The judge listed the matter for the following week for the HSE disability manager to attend.

The social worker gave evidence in respect of the extension to the interim care order. She updated the court in respect of the placement breakdown the previous week. The social worker said that the child had reported that he was extremely unhappy in the placement and that he did not want to be there.

Social worker: “He kept saying that he was going to take matters into his own hands to break down the placement. He said that he was going to do property damage and continue to break the rules about curfews and bed times. He was voicing to us that he was not happy there.”

The social worker gave evidence that since reading the ACTS report and since her allocation to the case for the previous six months she had seen the child’s “mistrust of everyone around him” which had made it difficult for him to engage with people or interact with services or his school. She said that there was a very clear pattern that if the child was not happy in his placement, or if he felt that he was not been listened to, or if did not trust people that “he will break down the placement”.

In cross examination the barrister for the mother asked if the social worker accepted that the placement the child was in since the breakdown of the previous placement was not appropriate. The social worker said that it was not a placement that met the child’s long term needs but that it was a place “for children dealing with placement breakdowns” in an emergency situation. She said that given that this breakdown had only happened a few days previously it was an out of hours emergency placement.

Mother’s barrister: “You outlined an escalation and that you anticipated that there may be a breakdown of the placement?”

Social worker: “We tried to do everything we could to stop it. We do listen to him.”

The social worker outlined that the CFA had organised respite from the placement which was what the child had wanted and he had managed that well. The social worker reported that the child “felt he had a demotion in his placement”. She said that the child can escalate and de-escalate and at times he was engaging well with the staff and he was “not missing in care every day like he had been in the past” and it was only in the last two or three weeks before the placement breakdown that there had been an escalation of property damage.

The barrister asked if there was a safety strategy in place to keep the child safe from danger and to prevent him from engaging in any further alleged criminal activity. The social worker told the court that the child would have a curfew and the policy was if he missed it that the gardai would be notified as a child missing in care. She said that she had met with the child the previous day and he reported that he was “fine there and very happy”, he was not engaging in property damage there and he liked the staff.

Social worker: “As the allocated social worker I don’t feel I have been neglectful. We are doing everything we can to make the placement work. It is a complex case. He can be hard to engage.”

The barrister highlighted a letter written from the mother’s solicitor to the CFA sent a few weeks before the placement breakdown. The letter outlined the mother’s concerns that while she was hopeful that the placement would not break down that she thought it was “essential” to have parallel planning at that stage in the event that the placement broke down as the mother “had predicted”. The social worker confirmed that the CFA had not been searching for a new placement but were seeking to protect the placement.

The solicitor for the GAL asked the social worker about the ACTS report that had been received that envisaged the supports required around the current placement and he asked the social worker if ACTS were aware of the recent breakdown. The social worker confirmed that she had notified ACTS by email and that she was also waiting for an outline of the next steps. The solicitor asked about what ACTS had suggested. The social worker said that she thought that individual meetings would be continued but ACTS had said that they might not be able to facilitate the suggested weekly meeting.

The solicitor for the GAL asked about the child “not trusting anybody” and raised the necessity of building a team around him to develop trust and said that a weekly meeting with the child was conductive to building that type of relationship of trust with the child. The social worker said that she was waiting for ACTS to come back with the detail but that it was a “fine balance” and she could see how difficult it was to get the child to attend. It was said that the child’s circumstances were indicative of a complex disability that might require a crossover between the mental health and disability services.

The judge noted the consent of the mother to the extension and extended the interim care order for a period of approximately sixteen days so that the next extension date would not fall within the Christmas period. The judge asked for all relevant reports to be circulated in advance to the HSE official who was the subject of the section 47 direction and lifted the in camera rule for that purpose. The court listed the matter the following week for the HSE disability service manager to attend court.