Reasons for Care Orders for African children given after 40-day hearing – 2015vol1#25

Full Care Orders were granted in the District Court for five children of African parents in a case heard over 40 days. It had originally been set for five. The judge noted that if the dates had run consecutively it could have taken less time. There had been considerable time lost due to late delivery of documents, the parents needed time to respond and there had been submissions of legal arguments.

Outlining his reasons for granting the orders, the judge found that the children had suffered neglect, emotional abuse and physical punishment that amounted to ill-treatment. The orders were granted because the children were likely to be at risk of further physical and emotional harm and neglect if returned to the care of their parents.

The youngest child had been in care since birth in late 2013. There had been a reunification plan in early 2013 but the case had come back again that year.

Hearsay evidence

The parents had contended that the hearsay statements of the two eldest children should not be admitted pursuant to Section 23 (2) of the 1997 Child Care Act. However the judge determined that it was not unfair that the children were not giving evidence directly and their hearsay evidence was admitted. He said that the interests of justice and welfare were served in admitting the statements and cited EHB v MK and the potential trauma to the children of giving evidence directly.

The parents denied the truth of Child A’s statements in the Section 23 (hearsay) application. The judge found that none of the statements admitted involved multiple hearsay and they had been made to people with whom the children had established relationships of trust. The statements had also been corroborated by the guardian ad litem (GAL).

The judge did not believe that the children were lying, fantasising or put up to making the statements, where they had spoken of lashing and being struck with a belt or other objects. They had been subjected to considerable physical punishment and had witnessed domestic violence on the part of the parents. The judge found that the incidents of domestic violence described by the children were similar.

Failure to thrive issue

Child D had been admitted to hospital in 2010. “Her parents say she had significant feeding problems,” said the judge. They had said that [D] had consistently vomited up feeds after a vaccination, they reported constant vomiting. Both doctors had stated this would have caused her to become extremely unwell before she had been admitted in the first place. The public health nurse had no notes taken on vomiting.

The judge said he did not accept the parents’ description of constant vomiting and their claim that the health practitioners constantly misunderstood the situation. “[Child D] was very under-weight when admitted, she did not vomit up all of her feed and posited within normal limits,” he said. The parents maintained that Cow and Gate formula did not suit her and they should have been advised earlier. However, the parents’ contention in that regard was not supported by the evidence.

Child D had made huge weight gains in hospital, she was put back on Cow and Gate and continued to make weight gains. She immediately consumed everything given in hospital and the medical opinion was that she had not received enough nutrition. When the baby was discharged from the hospital the parents were told that if failure to thrive re-occurred consideration might have to be given to child care orders.

While in the hospital the father had said Child D was not his. “He denies this and says the doctor misunderstood him,” said the judge. The father had said the baby was switched in [the hospital] and wanted a DNA test. The doctor had been concerned about the mother’s attachment to Child D. When she was crying she did not console her child and had repeatedly said she was not her baby. The mother had spent a lot of time talking to herself in the hospital although the baby had a high fever. The evidence given by the doctor was denied by the parents.

Non-accidental injury issue

Child D had been admitted to hospital for an eye injury. The radiographer gave evidence that the radiographs demonstrated classical metaphyseal fractures which suggested non-accidental injury involving twisting. The doctor agreed that a six-year-old child could exert sufficient force to make the injuries. A child could present with these injuries without obvious signs of swelling or bruising.

Both parents were asked about the injuries, said the judge. They had said they were scientifically unacceptable and that the other children caused the injuries when feeding the child. In 2011 Child D had been sent to hospital for a heart murmur as a result of a contraction with force having being applied. This had happened in the custody of the parents.

The judge accepted the older children may have caused the injuries or that they may have been done unintentionally or intentionally by an adult. He said that if it had been done by one of the older children then there was the issue of supervision of the children.

Care Orders

A Supervision Order was granted, during which time family support was offered but not co-operated with. The social worker found that the two older children were aggressive with each other and the children were giving coached responses to her questions. Interim Care Orders were granted for the children in early 2012 in a fully contested application and since that date the children were in care.

“The children were present in the court building when the decision was made, those who witnessed it or heard it might soon not forget it,” said the judge.

A psychological parenting capacity assessment review report was carried out by an independent clinical psychologist while Interim Care Orders were in place, in the context of a planned return with the exception of Child D. The mother was found to have a pervasive global learning difficulty while the father was found to be cognitively below average. The psychologist concluded that four children were too challenging for them and exceeded their parenting capabilities.

The parents were unwilling to engage with the social work department and this contra-indicated returning the children. However, two recommendations by the psychologist were not pursued by the CFA. These were the provision of a specialised housing unit with Marty Mayo therapy and the appointment of a person trained in child protection from the same culture and race as the parents. “They had assessed the family in any event and were prepared to consider reunification at end of 2012, Marty Mayo was not available,” said the judge. A Supervision Order was to be put in place for six months.

The judge said he did not accept the parents’ assertion that they did not know of the reunification plan. The parents’ engagement with the social work department dis-improved.
On the last day of the hearing the father had told the court that everything was fine until the HSE got involved, the mother had expressed similar sentiments and all matters of fact were denied.

The judge was not satisfied that it was a cultural matter. He said that the family would not accept supports or services unless the children were first returned and the mother had refused the services of an advocate and interpreter for the hearing.

“The father expressed suicidal ideation in the hearing of the children. He may not have meant it but that’s what they heard,” said the judge.

The judge identified the following in his findings of fact:

Failure to thrive: He said he accepted that this was due to the child not getting sufficient nutrition therefore this was due to neglect in the absence of any medical cause.
Non-accidental injury: the judge said he was not in a position to make a finding as to the perpetrator but on the balance of probabilities it had occurred in the custody of the parents. This gave rise to a risk, particularly of non-accidental injury of the younger children either by the parents or through lack of supervision.
Physical punishment of the two older children: “On the basis of the evidence admitted under Section 23, each of the two older children have been the subject of physical punishment, the description involved the use of implements. Such physical punishment amounts to ill treatment,” said the judge.

He also found that the two older children were not allowed to engage with the services identified by the social work department, the GAL or the court as appropriate to their needs. “Engagement was in fact obstructed. I am satisfied the denial of appropriate services amounts to neglect,” said the judge.

On the basis of the evidence admitted under Section 23 he also found that domestic violence occurred on a number of occasions in the presence of the children.

“Domestic violence and exposure to domestic violence can have adverse effects on children. It comes under the heading of neglect or emotional abuse, I’m not stuck on which is the definition,” he continued.

The parents constantly and persistently denied every single allegation and showed no insight into the serious issues that had been appropriately raised by the social work department. “There was no acknowledgment by them as to the importance of any those issues, they are in denial on the plain facts of the case,” said the judge.

The children were likely to be at risk of further physical and emotional harm and neglect if returned to the care of their parents.

The risks to Child A were physical punishment, denial of permission to engage with services and domestic violence.

The risks to Child B were likely to be the risks to her health, development and welfare and there was a real possibility in that context.

The risks to children C and D were of a failure to thrive and non-accidental injury.

For future harm to be assessed there had to be a finding of fact in relation to past harm – this had been found with three of the children and there was a sufficient basis on which to base a likelihood of future harm to Child B. There was a continued failure on the part of the parents to acknowledge the allegations or have any insight into serious issues raised and a total denial of various concerns raised.

Wishes of the children

This was an issue which caused considerable argument, said the judge. The GAL had obtained the wishes of the children which were placed before the court in September 2014. Child A wished to return home. “Child B has not expressed any such clear wish and the parents maintain that both children have expressed it to them, the wish to return home. It is accepted in relation to [Child A] that is her wish. The other children are non-verbal,” said the judge. “The wishes do not determine the order to be made by the court.”

The role of the GAL

“The role of the GAL, having re-read the president’s decision in O, [is a] dual role, [including] bringing the wishes of the children before the court. When that is not possible they should bring the matter to the court for direction. The GAL placed herself in a situation where there may have been a perception of a lack of independence from the HSE. It is not the function of the GAL to act as a supernumerary social worker.

“If any order is to be made there is the question of proportionality. The test is always the same, is it necessary? If so, what order?

“I accept on the basis of the Constitution and of the EU Convention…the best place for children to be brought up is in their family, the authorities should strive to ensure that children are brought up in their family and there is the least intervention with them.”

He said he had considered the possibility of making no order but did not believe it served the children’s interests or protected them from the risks. He had considered a Supervision Order, but there was no insight, no acknowledgement and it was not sufficient to address the risks identified. The situation reached today was effectively the same as at the start (over four years’ ago), no insight, no acknowledgment, no engagement.

“The children need a paradigm shift and certainty, there is a denial of the concerns but that is not to say reunification is impossible. The issue of reunification is addressed in child in care reviews and it is a compulsory issue where the circumstances of the parents have changed. Section 22 is also available. In circumstances where there is no realistic prospect of reunification I am satisfied the appropriate order in this case is till 18 years,” concluded the judge.

He made Care Orders under Section 18 of the Child Care Act for the five children. In the cases of Children A, B and C the orders were under Section 18.1.a, b and c (that the child had been ill-treated or neglected, or that his or her health, development or welfare was being avoidably impaired, or was likely to be in the future). In the cases of the two youngest children, Children D and E, he made orders under Section 18.1.c, referring to future risk.

Only Child A’s foster placement was long term approved and matched. The other placements were in the process of being looked at. The judge said the matter was to be re-entered in six months if the placements weren’t allocated.