See also Case Histories:
2016 Volume 1: Children return home following withdrawal of Care Order applications by CFA after 29 days of hearing
2016 Volume 2: Child and Family Agency withdraws Care Order application after 33 days.
Between autumn 2016 and late 2017 proceedings were heard in the Dublin District Court in relation to two children of primary school age, referred to as Child C and Child D, who were in foster care under a voluntary arrangement between their parents and the Child and Family Agency (CFA). The proceedings primarily concerned two applications under section 47 and an application for a care order under section 18 of the Child Care Act 1991. None of these three applications ran to their conclusion so no judicial determination was made on them, the CFA withdrew the care order application and the children returned home.
The proceedings involved hearing in full or in part from six witnesses, including the longest cross examination of a witness (a foster carer) that the judge had ever seen in a child care case. The CFA social workers worked with the family under the Signs of Safety model in a process running parallel to the judicial proceedings. In July 2017 during the Care Order hearing, the CFA sought and secured an adjournment to the proceedings until October 2017 to facilitate the reunification of the children with their parents. One child returned to live with the parents in August 2017 and the other was returned home in late 2017.
The family at the centre of this case comprised a couple and four sibling children. The children are referred to in order of their age as Child A, Child B, Child C and Child D, with Child A being the eldest. Child protection proceedings relating to the family were first brought in 2011. At all stages of the current proceedings the mother, father, guardian ad litem (GAL) and CFA were separately legally represented. Child A and Child B were also in care for a period of time. Child A and Child B were in different care settings and had different social workers from Child C and Child D. All four children initially had the same GAL but in March 2014 Child C and Child D were appointed a different GAL.
The Director of Public Prosecutions (DPP) secured an order restricting the reporting by the media of any information that could prejudice an on-going criminal case involving allegations against an adult relative of the children referred to in this report as Y.
During the proceedings, several applications were made under section 23 (of the Children Act 1997) in relation to whether or not hearsay evidence from the child subject to the orders and also children residing in the foster home would be admissible, or if a child would be required to give evidence directly to the Court. The judge ruled in each instance that it was not in the best interests of the child to be required to given evidence in the proceedings, acknowledging that the case was “significantly based on hearsay”.
The report refers to the following experts who provided the court with testimony: Expert A, an expert on memory and forensic interviewing; Expert B, a UK-based court appointed expert in forensic clinical psychology and assessments; Expert C, the psychotherapist from the child sex abuse unit (the Unit); Expert D, a social work consultant with the CFA specialising in Signs of Safety; Expert E, an independent social work consultant, commissioned by the GAL.
The principal from the children’s school and the foster carer also provided evidence. The foster carer for Child C and Child D was with a private fostering agency. She explained to the court that she had an agency link worker with whom she met once a month and spoke to weekly. The link worker’s role was to support them as foster carers and to liaise between the foster carers and the CFA. The children’s social worker, she said, had very little to do with the foster carers and visited on average twice per year.
Supervision Orders and First Admission to Care
In July 2011, a three month supervision order (under section 19 of the Child Care Act 1991) was granted in respect of the four children, this order was subsequently renewed. In February 2012, an application was made for an interim care order (under section 17 of the Child Care Act 1991) on the grounds of neglect, with the family home being described by the social worker as “basically chaotic”. However, the application for the ICO was withdrawn as the HSE had no foster placement available for the children. Instead, a third consecutive Supervision Order was applied for and granted.
While under the Supervision Orders, a support service failed to conclude a four week assessment due to difficulty gaining access to the family home. Home visits were carried out by a social worker and the CFA also asked the Gardaí to conduct spot checks. A week after the first application for an ICO was withdrawn, one such home visit triggered a second application for an ICO which was granted in early March 2012. The siblings were subsequently placed in two foster homes (the two older siblings in one placement and the two younger children in another). The ICO was granted on the basis of serious concerns of neglect, physical abuse, hygiene issues including dog faeces in the house, including in the children’s beds, non-attendance at school and at medical appointments, lack of food in the house, parental drug use, alcohol use and domestic violence. During this period in care, regular unsupervised weekly access took place between the four siblings.
Concerns regarding Sexual Abuse
In May 2012 child protection notifications were made to the Gardaí and the four children were referred to a child sexual abuse assessment and therapy unit (the Unit). These referrals were made on foot of disclosures by the older children that they had been sexual abused by an adult relative Y and reports from both sets of foster carers of sexualised behaviour on the part of all four children. There was a significant delay in following up on these referrals. It was ten months before Child A and Child B were seen by the unit, a year and a half before the first Garda interview took place with Child A and 22 months before the first interview with Child B.
Child C and Child D were not interviewed by the Gardaí at this time but were interviewed at a later date on foot of another referral. They were also not seen by the unit or subject to any other assessment or provided with therapeutic intervention at this time.
Decision on Care Order Applications
During 2013 the CFA worked with the parents on a reunification plan. By October 2013 the social worker reported that the parents were remaining drug free, had admitted to domestic violence, positive access visits were taking place with the children and the home was being kept quite well. At a case conference the decision was made to return Child C and Child D home and to apply for a three year care order in respect of Child A and Child B. The CFA considered that the threshold had not been met for an ICO for the two younger children. The social worker commented that at this point it was considered that the parents “could only manage two children for the foreseeable future”.
In November 2013, Child C and Child D were returned to the family home under supervision orders with a stipulation that there was to be no contact with Y and that the parents were to remain drug free and engage with support services. In mid-December 2013 a care order (under section 18 of the Child Care Act) was granted for a period of three years in respect of Child A and Child B.
Interviews on Sexual Abuse Concerns with Child A and Child B
There was a significant delay in interviewing the children after a referral was made by the social work department in May 2012 regarding sexual abuse disclosures by the two eldest children.
An Garda Síochána and the child sexual abuse assessment and therapy unit (the unit) were unable to take an inter-agency approach and carry out joint interviews with the children so as to minimise the total amount of interviews undertaken. The forensic interviews by the Garda specialist interviewer are usually conducted prior to those at the unit which had an assessment and therapeutic focus. However a delay on the part of the Gardaí resulted in the unit carrying out their interviews first. This was criticised by two expert witnesses.
The unit began interviewing Child A and Child B in February and March 2013 respectively, ten months after the referral was made. Seven interviews were conducted for Child A between March and August 2013, and seven interviews for Child B were conducted between February and August 2013. The interviews by the Gardaí were commenced for Child A at the end of November 2013, a year and a half after the referral was made and the Garda interviews for Child B commenced in March 2014, 22 months after the referral for Child B (March 2014). Four Garda interviews with Child A and two with Child B were conducted.
The assessment within the unit was conducted over a period of six months and involved 15 interviews. The allegations made by Child A and Child B of sexual abuse against Y were found to be credible, these allegations included rape and being made to watch pornography. The unit also found credible an allegation by Child B that he had seen Y and his mother in bed engaged in a sexual act. The mother strongly denied this allegation.
Criticism of the Interviews
During the 2016 court proceedings two expert witnesses expressed concerns about the quality of the interviews carried out with the children. Expert A, an expert on memory and forensic interviewing appointed on behalf of the parents, criticised the unit’s interviews, including citing examples of suggestive and repeated questions, the use of anatomical dolls, an assessment protocol which he said was more than 10 years old, distractions during the process, the introduction of dreams and external notes and a failure to explore the definition of sex provided by Child B. Expert A also criticised the Garda child specialist interviews for not following the Achieving Best Evidence (ABE) approach. In addition, the judge expressed concerned that the Gardaí were following 2003 Practice Guidelines which had not been updated.
A second expert witness, Expert B, a UK-based court appointed expert in forensic clinical psychology and assessments, also criticised the unit’s use of sexually accurate dolls. The court was informed that there was no external clinical governance in place in terms of the quality of the unit’s interviews. In relation to the Gardaí interviews, Expert B described them as “a horrible piece of interviewing”, with an unremitting tempo. However, Expert B said he did not have a serious concern in relation to the content of the allegations that arose and overall the interviews were done well enough not to have generated core false allegations.
Care Order application
Second Admission to Care and First Care Order Hearing for Child C and Child D
In March 2014 during a Gardaí Child Specialist interview, one of the older siblings made an allegation of sexual abuse perpetrated by the parents against Children C and D. The allegation was described by the Garda as being in the “upper end of the scale” of child sexual abuse. At this time, Children A and B were in care under a three year care order while Children C and D were living at home. In early April 2014, Child C and Child D were readmitted to care under an interim care order and placed with the same foster family and remained in care under extensions to the ICO. A care order application was lodged in March 2014 and nearly two years later, after repeated renewals of the interim care order, in February 2016 that application was commenced.
Partial Retraction of Allegation against Parents
In February 2016, at the beginning of the Care Order hearing in respect of Child C and Child D, Child A made a partial retraction of his allegation against his parents to his GAL. The court was informed that Child A said: “The sexual things to [Child C and Child D], none of it happened. I just wanted to talk about what happened with [Y] and she [the Garda child specialist interviewer] asked about Mam and Dad.”
Child A had made an earlier partial retraction in mid-December 2014. On that occasion the GAL recounted that Child A had said: “Why can’t my Mam and Dad be given another chance? The fighting happened one hundred per cent, but the other thing, sex, I might not be sure about that.” The judge noted that the two partial retractions related to allegations of sexual abuse against the parents made to the Gardaí but not to disclosures made to the unit. The court was informed at a later date that Child B had also made a partial retraction of a similar nature.
Both the expert witnesses were asked how the court should interpret the partial retractions. Expert A, an expert on memory and forensic interviewing, said a retraction was not necessarily indicative of false allegations and the goal must be to consider why the child decided to recant the allegation. He criticised the failure to conduct a follow-up interview to explore and probe the retraction with the child. He noted that Child B might have been made aware of child protection matters in relation to himself and his siblings and that these might have been a possible motivation to state that the parents knew of the abuse by Y. The court had earlier heard that during the Garda interview, Child B had told the Garda: “I’m just doing the interviews so I can get them [Child C and Child D] out of my Mam and Dad’s house.”
Expert B, a UK-based court appointed expert in forensic clinical psychology and assessments, said there was a bias to disbelieve a retraction. He noted that the starting point was that the child thought his parents should be given another chance, therefore one had to factor in whether the retractions were designed to make it more likely that he could return home.
Expert B described Child A and Child B as being insecure and fearful of their parents. He noted that the children disclosed being physically abused and neglected by their parents with a bare minimum of love, affection, care or physical attention. He reported that Child A described an astonishing level of self-reliance and self-sufficiency, there was no sense of expectation of care and nurturance and the child talked about protecting his siblings from adversity. Expert B commented: “It has a relevance to the possibility of false allegations, you might make the case that these children had an emotionally and physically impoverished life and suddenly found themselves in a warm and nurturing environment which gave them the motivation to generate allegations of abuse, at best I can establish that was his position at the time.”
Expert C, the psychotherapist from the unit, described Child A as nervous when talking about his family of origin, it was source of stress to him that they might get into trouble. Initially he told her that he had watched pornography with his Dad but then went on to say he had only watched it with Y. “It was hard to know whether he withdrew the information to implicate his father less,” the psychologist told the court.
During the Care Order hearing for Child C and Child D, the CFA made four applications to adjourn the proceedings. The court refused the first two applications. However, the case was de facto adjourned as the CFA failed to produce any witnesses. The court granted the third application which sought to allow the CFA an opportunity to carry out assessments on possibly returning the children to their parents, with evidence given that the parents had made progress in relation to their difficulties and the social work department could not confirm the sexual abuse allegations made against the parents.
At this juncture, the judge summarised the key issues in the case as being allegations of drug use, mental health difficulties, violence, neglect, sexual abuse by Y and by the parents. He said all of those issues had to be decided by the court and the elephant in the room was the allegation by the older children of sexual abuse against the parents. He told the parties that the risk needed to be assessed and if the risk no longer existed then the CFA had a duty to come to court and discharge the case.
Withdrawal of Care Order Application
On the day the case returned from adjournment in late May 2016, counsel for the CFA again applied for a six month adjournment. Counsel for the CFA told the court that since the last hearing date three weeks’ previously substantial work had been done. The CFA were engaged in an on-going risk assessment and believed that the risks were manageable and the children could be reunified. It was her submission that under the Resolutions Model (of risk management) it was not necessary to determine whether or not sexual abuse occurred for the risk assessment/management to take place.
The risk assessment contained an initial plan which was intended “to be a process” in which the CFA would “engage with the parents on a collaborative basis outside an adversarial setting”. She said the parents continued to deny the allegations, therefore in respect of the management of the risk the importance of collaboration and engagement with the parents was huge. The parents had agreed to a voluntary care arrangement and to work alongside the CFA, therefore the CFA were no longer of a view that a care order was required. However, if the case was adjourned the parents would have the benefit of legal advice and the GAL would remain appointed.
Counsel for the GAL emphatically opposed the adjournment on the basis that the risk assessment provided was entirely deficient as an assessment of the allegations and partial retractions of sexual abuse had not been completed.
The judge also criticised the risk assessment document furnished to the court as unimpressive. He said the risk into the future could not be assessed without making a finding into the past. He remarked that the mother was in the category of representing a risk, even though she denied everything. He said an adjournment would mean “issues would be left hanging.” He remarked: “Either the [threshold] grounds are there or not to proceed.” The judge refused the CFA’s application for an adjournment.
Immediately following the delivery of the court’s decision, counsel for the CFA indicated that she had instructions that the CFA now wished to withdraw its application citing that it was not in the children’s best interests to proceed. On this development, the judge commented: “One has to wonder as to the basis on which an application for adjournment was made in circumstances where the Child and Family Agency now argue that it had decided not to pursue the application.”
The judge extended the ICO to allow for legal submissions on whether or not the court had jurisdiction to refuse the CFA’s application to withdraw its application for care orders. Three days later, in early June 2016, the judge ruled that the limited and local jurisdiction of the District Court did not permit it to refuse the CFA’s withdrawal of the section 18(1) applications.
At the point of withdrawal, the care order application was only partially heard and was likely to run for a further five to ten days. During the hearing, between 1 February and 2 June 2016, the court heard 33 days of evidence over 18 weeks, it viewed 22 hours of DVD recordings of interviews and heard from six expert witnesses, at least three of whom attended from other jurisdictions. In a written judgment, the judge commented that this complex case had involved an “enormous amount of contention and litigation” which entailed “the expenditure of a very considerable amount of court time and state resources.” The judge noted that as the evidence was incomplete, the court was not in a position to “make any findings of fact based on the evidence heard to date.”
High Court Application
Following the withdrawal of the Care Order application in early June 2016, the parents consented to the children remaining in voluntary care until August 2016. However, during the summer the parents sought to have their children returned to them. The CFA decided not to apply for an order to retain the children in care but instead agreed a transition plan with a reunification date in late August 2016.
Four days prior to the date of the planned reunification the foster carers made an application to the High Court to make Child C and Child D Wards of Court to prevent the planned reunification from taking place. They argued that the CFA’s risk assessment and plan was not sufficient to protect the children.
The foster carers applied to the High Court for a guardian to be appointed in the Wardship proceedings. The children’s GAL had been discharged at the conclusion of the District Court proceedings in June 2016. She was appointed by the President of the High Court as guardian ad litem in the High Court proceedings. Following her appointment the GAL took a decision to support the proceedings. She said the plan was “wholly inadequate and completely failed to engage with the allegations.”
The President of the High Court directed that “the status quo should be maintained,” reunification was put on hold and overnight access suspended pending further order of the High Court. The case was heard in the High Court over two days in September and was opposed by the CFA and the parents who argued that there were alternative remedies available to the applicants such as a judicial review or a section 47 application.
During the hearing, counsel for the foster carers reported that they had heard the CFA at a meeting in early July 2016 describe the case as “too toxic and costing too much” and that the decision to withdraw the application was made as the CFA “took a view that the court proceeding was not going to reach a conclusion.” This claim was denied by the CFA. The court was informed that the Gardaí and the GAL were opposed to reunification and neither had been consulted on the reunification decision.
The High Court Judge said: “I consider it at least arguable that the risk assessments carried out have been very detailed but much too general with regard to how the welfare of these children should be dealt with. The District Court and the CFA must take such steps as are necessary to engage with the particulars of the risk identified, or identifiable, with regards to these children.” The parents gave a commitment to the court that they would agree to the children remaining in care until early February 2017 under a voluntary agreement and that they would not discontinue or vacate this agreement. The High Court Judge noted that the parents had agreed to a voluntary care arrangement and said: “I need to exercise a degree of judicial restraint and ought not to engage the full jurisdiction of the High Court.” She adjourned the proceedings with liberty to re-enter and the High Court retained a residual supervisory jurisdiction with regard to the children.
Section 47 Application on Risk Assessment
In October 2016 the District Court commenced the hearing of two applications by the foster parents and the GAL under section 47 of the Child Care Act 1991. The applications were to ask the District Court whether or not it was satisfied with the risk assessment conducted and if it was not satisfied then it could direct that a further risk assessment be procured by the CFA.
The foster parents contended that the risk assessment completed in May 2016 was materially deficient. Counsel for the foster carer said “the deficiencies leap off the page” and that they were both substantial and procedural.
Counsel for the GAL reminded the court that the GAL had expressed her concerns about the deficiencies in the risk assessment at the time of objecting to the withdrawal of the section 18 application. He argued that the children were entitled to an adequate process to determine their welfare which they had not received and that the process that led the CFA to withdraw the Care Order application was “fundamentally flawed”. He noted that the CFA decision to explore the viability of reunification (communicated to the court in the first week of May 2016) was made before the risk assessment was carried out during the month of May 2016.
The CFA and the parents objected to the section 47 applications through their legal representatives, on the grounds that the Court did not have the jurisdiction to hear the applications and that a judicial review would be a more appropriate course of action. In response, counsel for the foster carers noted that a judicial review was a discretional remedy, his clients might not have locus standi and such a review might not result in an effective remedy, unlike a section 47 ruling.
In objecting to the application counsel for the CFA argued that the effect of the application as a whole was to “pause or suspend the CFA role under the Child Care Act” as it was “asking the court to direct the CFA to refrain from making any decision in respect of family reunification.” She argued that the court might review the implementation of a CFA decision but it did not have the jurisdiction to review or substitute a decision of the CFA and expressed a fear that such a decision could lead to the micro-managing of CFA decisions. She asserted that the court did not have jurisdiction to review a risk assessment to consider whether or not it was adequate.
The judge replied: “Am I to assume the CFA is always adequate?” Counsel for the father supported the CFA position. She argued that the court did not have the power to review the CFA decision to return the children home. The judge asked her: “Who polices the police? If what the CFA had done was inadequate, is that it? Does the court have no function whether it is adequate or not adequate? Do we all ignore the fact that it is inadequate?” Counsel for the foster carers also responded, he said the position put forward today by the other parties was that “there is no power under God that can review a CFA risk assessment.”
Counsel for the mother said that although section 47 was a widely drafted provision the court was “not at large” and that there were limits on the court’s jurisdiction. She argued the risk assessment was inextricably linked to the decision not to proceed with the Care Order application and described the section 47 applications as a “collateral attack on the CFA decision not to proceed with proceedings”.
The judge ruled that he would allow the section 47 application but indicated that some of the orders sought were inappropriate. He grounded his decision in case law, including WHB v KM and JG and Staunton. He commented that if the court found on an objective level that the risk assessment was inadequate it could order that an adequate objectively sound assessment be carried out.
Despite an objection on the part of the parents, the judge re-appointed the individual who had previously acted in the role of GAL for Child C and Child D (under section 26 of the Child Care Act 1991).
Signs of Safety
In mid-December 2016, Expert D, a social work consultant with the CFA specialising in Signs of Safety, gave evidence to court. Her role was to provide advice to the CFA on the implementation of the Signs of Safety model. She defined the Signs of Safety framework as a solutions-focused therapy model, where a family is supported to demonstrate that they can provide safety for their children. Under this model, there must be one explanation shared with all parties, in clear age-appropriate language, setting out “why we were worried, what were they worried about, who was worried and what would be done now to keep the children safe and what is working well.”
Expert D said the Signs of Safety model was contingent on the parents agreeing to a set of statements in a suite of documents: a Safety Plan which was continually revised and refined, a Harm Statement concerned with harm that had happened in the past, and a Danger Statement concerned with risks or dangers that could be posed to these children in the future. The statements were drawn up by social workers, the parents were subsequently consulted and could make amendments once the core issues of a serious nature remained.
The parents invited family members and close friends to be part of the Safety Network. A safety object or code could be identified to enable a child to communicate that they needed to talk to an adult, such as placing a blue teddy bear on a teacher’s desk. The model aimed to “help children make sense of things they cannot make sense of” but would likely know at some point. The thinking was that “in the longer term the more openness and less secrecy the better”.
Expert D said that in relation to this family’s case, the CFA began working with the Signs of Safety model in September 2016 in respect of the four children. The current risk centred on sexual abuse by Y and ensuring he did not have contact with the children. She said no decision had been taken that the children were going home, it was not a reunification plan but a risk assessment model. She commented that the previous work undertaken by the CFA was insufficiently robust to ensure safety and so the CFA wanted to use a different approach and so contracted her agency to provide a more rigorous assessment. She said the close family members had been identified as available and willing to support the parents but that these family members were not “informed”.
At this court hearing, in mid-December 2016, there had been one meeting with the parents and the court was informed that there was no agreement on the part of the parents to the proposed statements which all four children would be given to explain why they are or were in care. Hence, the Signs of Safety process had not yet commenced. The proposed statements made reference to sexual abuse by the parents, including that “dirty stuff happened with Ma and Da,” and the extended family in the Safety Network would be told of the allegations of sexual abuse made by the older children about the parents, which resulted in Child C and Child D returning to care. The parents were worried about the impact of this information on the siblings’ relationships. They were also not happy that the younger children would be told certain things, including that there was domestic violence in the family home.
In mid-January 2017, Expert E, an independent social work consultant with nearly thirty years’ experience internationally in child protection, with a particular focus on sexual abuse, gave evidence. She was commissioned by the GAL to provide an expert report, the terms of reference of which were to “assess the adequacy or otherwise of the risk assessment conducted by the CFA in May 2016 and its subsequent follow up in September.”
Prior to this witness taking the stand, the parents’ legal representatives objected to the content of her report. Counsel for the father argued that the report went way beyond the expert’s remit, she had made findings of fact of a criminal nature that were prejudicial and indeed in another context would be deemed to be defamatory such as: “There is no doubt that both [Child D] and [Child C] were sexually abused while in the care of the parents.” The judge acknowledged the concerns raised but refused the application to exclude the witness. He did, however, make an order that due to the use of the term “co-offenders” contained in the report, the court was not allowing a copy of the report to be filed.
Expert E concluded from reviewing the documentation within the risk assessment conducted by the CFA in May 2016 that both Child C and Child D had been sexually abused while in the care of their parents. She said she was concerned that the children’s sexualised behaviour corresponded to drawings as well as to things the children had said. She explained that she used the term “co-offenders” in relation to the parents as she commented that the children had named both parents. The issues of neglect, domestic violence and alcohol and drugs misuse were the responsibility of both parents, she argued.
The term “offender” did not imply that the behaviour was intentional or unintentional. The consultant explained that the definition of the term “sexual abuse” included children who are sexualised, who had a knowledge that was beyond their age. The child might have observed, heard or experienced the abuse, it did not necessarily imply contact sexual abuse. She pointed out that this definition was used by the CFA. She indicated that the documentation she received from the CFA accepted the children had been sexualised but did not indicate who perpetrated the abuse. She said for the family to move on, they had to acknowledge that the children had said things that were beyond their age.
In relation to the risk assessment conducted by the CFA in May 2016, Expert E said it did not have a clear child protection focus and lacked a depth of analysis. She found that it contained a gross minimisation of the behaviour exhibited by the children and there was no acknowledgement of risk or potential risks. In particular she noted that there was nothing in the documentation that identified a protective parent, where one person acknowledged that they would protect the children against the other person, they would take on a supervisory role and would call the other to account if necessary. It did not address the parents’ lack of insight into the impact on the children of having inappropriate sexual knowledge. She said the sexual issues must be named and addressed. The risks identified were not aligned to what was contained in the Safety Plan. She also noted that there was “no strategic comprehensive overview of the four children in one document”.
From her review of the material, Expert E concluded that there was “no evidence or minimal evidence” that specific education work had been offered, requested or completed by the parents and their support people. She commented that this work should cover what constitutes sexual abuse, how to recognise its signs and symptoms, how to support the children if it happens again, how to respond to the children if they talk about these issues and how to equip the parents and children to manage normal sexual behaviours that arise in adolescence.
The consultant said there was a need to examine what had happened, why the children returned to care in 2014 and how it had affected them. The benefit of this education for the parents would be greater insight and they could protect themselves from false allegations as well as safeguard the children from other people who might pose a risk.
The need to undertake a specific piece of work with the parents in relation to general issues of sexuality and their attitude towards early sexualisation of teenagers was also noted by Expert E. She drew attention to the significant age difference between the parents and noted that the father was 34 years at the time he commenced a relationship with the mother, who was a 15-year-old attending school. The mother subsequently left school after she became pregnant. The report stated the father “had sexual activity prior to age of consent [of the mother].”
Expert E acknowledged the positive progress the parents had made in addressing their difficulties. However, she said the issues of sexualised behaviour by the children had not yet been addressed and that it was “really important” that therapeutic work in a safe space be done with the children. She clarified that therapeutic work was about “putting the child back together again,” and had a different purpose from the assessment undertaken by the unit. Such work could take up to six months and should cover all aspects of trauma experienced by the children.
She expressed concern at returning children while the parents were still in active denial of behaviour, intentionally or otherwise, that had caused the early sexualisation of the children. There had been no acknowledgment by the parents that the sexualised behaviour witnessed by the foster carers was occurring. She expressed concern that the parents appeared unable to listen to what the children had to say. She noted there was a lack of evidence of sufficient work done with the parents for them to gain insight into the needs of the children and the emotional impact of their behaviours that resulted in the children being neglected and coming into care in the first place.
Expert E recommended that the parents undertake a tailored piece of assessed education work in relation to sexuality and the emotional wellbeing of the children as part of the Signs of Safety process. It is “not sufficient to just turn up for the sessions,” there also needed to be some type of assessment “to ensure it has worked,” with objectives set at the beginning and reviewed at the end. The consultant said the fact that the allegations were unconfirmed did not stop professionals from working in partnership with the family. She suggested using as examples the sexualised behaviour exhibited by the children to form the basis for the assessed education work, exploring what the impact might be of the behaviour, while not asking what caused the behaviour.
In relation to the planned reunification in summer 2016 in which the CFA had a three week lead-in, Expert E said it was not feasible for the CFA to address the outstanding issues and complete the work identified as necessary in relation sexual abuse and sexuality with the family within that period of time.
The consultant told the court that reunification needed to be taken slowly and only after the therapeutic work identified for the children and education work for the adults had been undertaken. She commented that the children were not presently fully engaged in therapy, “if you move children at the start of therapy it can have a detrimental impact.” She said: “To return children who have not received therapy to parents who have not received any education – that is too much of a risk.”
In response to Expert E’s testimony, the CFA informed the court that during summer 2016 the voluntary care agreement was breaking down and the children risked being returned home immediately. The plan drawn up by the CFA in August 2016 was not their preferred plan and it was not implemented as proceedings were initiated in the High Court. The CFA noted that the more recent iterations of the Signs of Safety documents contained significant improvement to plug the gaps identified by the consultant who had reviewed earlier versions of the documents. Expert E acknowledged the improvements made in the latest Signs of Safety document but remained concerned at the absence of assessed education work, the lack of a protective parent, the minimisation of concerns, absence of a comprehensive document and lack of therapy for the children.
Counsel for the CFA informed the court that the parents had indicated that they would not engage with the Signs of Safety framework and process. The expert responded: “This was a very significant statement to make. I read the document assuming the parents were engaged, that meetings have happened.” She assumed that the fact the older children were going home was because the parents had worked with the plan. The judge pointed out that there was “no Care Order application before the court” the only question before the court was the “efficiency or otherwise of risk assessment.” The judge then commented: “It has been said in court as part of evidence that ‘if you are considering reunification …’ I am not considering reunification as the matter is not before me.”
Second Care Order Hearing
The voluntary care agreement for Child C and Child D was due to expire at the start of February 2017. In mid-January 2017, the CFA lodged an application for an Interim Care Order in respect of Child C and Child D. The judge noted that the ICO was a new application and would need to start from scratch. In light of this new development, the foster carers and GAL consented to adjourn their section 47 applications.
The judge observed: “This is an extraordinary situation, where children have already been in care and returned home, in care again and then an expectation that they will return home again and I am not sure what the children have been told.” The judge directed the CFA “to do the paper work in respect of their section 17 application as if it was a section 18 Care Order application – setting out the grounds in detail and the list of witnesses etc.”
The court was informed that the parents were not engaging in the Signs of Safety model, which the CFA had attempted to put in place following the High Court proceedings. The family wanted to work under the Family Welfare Conference model instead. A date was set to hear the ICO one week later but the case was never heard as the parties sought additional time for negotiation. Ultimately the ICO became moot as the parents agreed that the children remain in care under a voluntary agreement for a further month until March 2017 and the CFA applied for care orders.
The second care order hearing commenced in late February 2017 and by this time the Signs of Safety process had begun which included the holding of a family meeting. The parties sought additional time for negotiation, at times vacating a court sitting with little or no notice to the court. At one point the CFA indicated that they might seek to adjourn the care order application, possibly for six months. On 2 March, the day before the voluntary care arrangement was due to expire, the CFA indicated the care order applications would proceed and dates were set for later that month.
The commencement of a planned 10 day care order hearing at the end of March 2017 was further delayed for a number of days due to a delay in the delivery of discovery documentation. The documentation, running to approximately 1,800 pages, with 800 pages of material submitted 24 hours before the court date, arrived too late in advance of the scheduled first day of the hearing for the parties to be able to prepare. This was in breach of the agreed schedule that the parties would have ten days to prepare.
The barrister for the mother commented that in another hearing the case would be struck out for failure to comply with discovery. The judge said: “It was not an appropriate way of dealing with this [child care] case but appropriate to note it.” During the hearing, proceedings were further delayed due to a difficulty in the exchange of documentation and when the CFA was unable to provide a witness for the following scheduled sitting. The judge commented on the waste of a day: “Where does this come to an end, strike out proceedings for want of prosecution!” The barristers for the respondents indicated they would apply for their costs for this day.
The Foster Carer
Child C and Child D lived with the same foster family through their time in care. The foster carer was extensively cross-examined over a number of days. The judge remarked that the cross examination of the foster carer was the longest he had ever seen in a child care case. The foster carer was questioned about incident reports she submitted to the private fostering agency detailing her observations of the children’s behaviour and was cross-examined to differentiate between her observations as opposed to her opinions or interpretations of the children’s behaviour. Her reports included how the children reacted to the news that they might be reunified in 2013, 2016 and 2017.
March 2012 to November 2013
The foster carer reported that in late March 2012 she observed that Child D, aged two years made peculiar sounds and pelvic movements each time she was having her nappy changed. According to the foster carer, Child C described Child D’s behaviour as “having sex”. She did not probe Child C on this explanation as she said she was “floored by his comment” but said she was satisfied from his comment that he knew sex was an act and that he was describing what Child D was doing. It was noted by the barrister for the mother that there was no reference in the access reports of observations by other professionals of this behaviour during nappy changing. According to the foster carer at this time, Child D had four words “yes, no, dicky, and arse”.
The foster carer reported that in October 2012 Child C, aged five years, said he used to watch “the naughty one” on his mother’s TV in her bedroom “50 times a day”. The foster carer asked “What was the naughty one?” and Child D was reported to have replied: “The one about sex”. On another occasion the child said it was Y who put it on the television. Several incident reports made references to the children saying that they “watching videos with willies in them”. Child C said he “often watched people having sex at home”. In April 2012, Child C asked what “sexy” meant, he said he had heard the word from Y and talked about wanting to hurt Y.
She said that in October 2012 Child C commented in response to the question, what was different in this house to your home: “We only got breakfast. It is not okay, is it? She should have given us breakfast, lunch and dinner.”
The foster carer reported that in July 2013 she had observed Child C masturbating in the mornings and evenings. She first became aware of Child C’s behaviour when the family was on holiday in a caravan. The foster carer said that during this time there had been a lot of talk about the children returning home, but nothing had been decided. She reported that when asked how he knew how to do that, Child C said he saw it on the TV and also saw someone do it but would not say who and refused to talk any further about it. She also gave evidence that at this time Child C was preoccupied with private body parts, showing his own private areas and asking his sister to show hers. She described him as angry and self-harming.
The foster carer notified her link worker, the social worker and accessed support through the fostering agency helpline in relation to Child C’s masturbating behaviour. The foster carer said that she raised the issue of Child C’s behaviour with the parents and they were shocked and distressed. She was told to monitor the child’s behaviour and report on it and was provided with reading material. She was advised by the social worker to treat the behaviour as normal and ask the child to close his bedroom door so that the other children were not aware of it. A couple of weeks after the reported incident, the social worker told her the masturbation was probably self-soothing as the child was in a state of flux.
The foster carer did not accept this explanation and believed that the behaviour she observed was too adult for a six-year old boy, lasting a period of time and involving him thrashing face down. This behaviour returned in advance of the 2013 reunification. The foster carer also recalled that in July 2013 she communicated her concerns to the social worker about Child C, including that he was upset after access and that when she offered to put him on her lap and give him a hug, he freaked out. She also reported that Y used to put Child D into a cupboard.
In October 2013 Child D was due to go on an access visit. The foster carer said she had spent three hours the previous day getting Child D ready to go to the visit. On the morning of the visit, Child D locked herself into the playroom, urinated on the floor, removed her clothing and refused to attend access. GAL A who was present in the house called the mother who calmed Child D down and the child attended access which was recorded as being a very positive visit. The foster carer said she did not like how GAL A allowed the situation to escalate and believed his approach was not child-centred.
The foster carer was cross-examined on her view of the reunification of the children in late 2013. She said neither she nor her husband had an issue with the decision and they could see the parents had made great progress. She added that, as a foster carer, you had to be neutral. However, she said she had a big issue with how reunification with Child D was dealt with and with the reunification plan drawn up by GAL A. There was no consultation with the foster carers on the plan.
She said it was her understanding that Child C would go home within six to eight weeks but that reunification for Child D would be a slower process over approximately three months. The foster carer reported that Child C went home on a four week trajectory and Child D on a six week trajectory. She was of the opinion that this was too quick and she detailed her concerns to the fostering agency. The foster carer believed the CFA were not reunifying Child D at the child’s pace and said: “They were doing it at someone else’s pace”. She said that the social worker had never reunited a child before so GAL A drew up the plan and she commented: “It was the blind leading the blind”.
The foster carer confirmed that she initially refused to provide transport as a way of marking her disagreement with the transition plan. This lack of cooperation raised a concern for the social workers who felt it was important for the people who knew the children to cooperate with the plan. In the end, the foster carers brought the children home on the last day. Child C was described as having to be lifted into the car “kicking and screaming”.
On the day Child D was to be reunified the foster carer said the child woke up hysterical at 7am and it was 3pm before they could calm her down and get her into the car. The foster carer said she sought assistance from the social worker who said: “It’s under a court order, just get her there.” The foster carer said it was highly distressing for everyone, but acknowledged that when she arrived home she appeared to settle very well. The foster carer said that they visited the children at Christmas and on their next birthdays and then decided that they should not visit again to let the children get on with their lives.
The children were at home from November 2013 to March 2014. In March 2014, the children retuned to live with the foster carers.
The foster carer gave evidence that there was a honeymoon period when the children first returned to care. However, following this there was a gradual deterioration of behaviours. She said she felt the children had “regressed” since the first time they came into her care, she said Child C would shout out at night in his sleep. From mid-2014 onwards, the foster carer said that both she and her husband found it very difficult to manage the children’s behaviours, which included overtly sexualised behaviours. While they continuously reported this, she said no one came back to them, she got no feedback from the social worker and in her opinion the children were not given the interventions they needed. It was acknowledged that, in August 2014, the social worker called to the house and carried out some work from the stay safe programme with Child C. She recalled that Child C did not want to engage with the social worker and woke up at 5am of the morning she was due to call, he said he was “scared” and that “someone was touching me”.
In May 2014, the foster carer reported that Child D, now 4 years of age, was observed attempting to put a small toy into her anus and stimulating masturbation on two separate occasions. In another report from the same month, the foster carer reported an incident that took place while the children were playing on a trampoline – Child C, Child D and two other children that lived in the foster home. According to the children, Child C lay on top of Child D and began simulating sex. The foster carer said behaviour such as simulating sex on the part of the children was a regular occurrence in 2013 and 2014.
In May 2014, Child C reportedly asked could he go to “an anger doctor”. The foster carer said Child D would have tantrum episodes on a regular basis where she became verbally abusive and threw things, such episodes could last up to 20 or 30 minutes and in her opinion the child was completely out of control. A few days later, after one of these incidents, Child D reportedly apologised and said: “I’m sorry, I can’t control my brain, it keeps going on and off again, I don’t want to be naughty, can you help?” This incident prompted the CFA to organise a set of sessions with a play therapist for Child D, which she attended from October 2014 to January 2015. The foster carer said the play therapy was of great assistance. It was noted though that these play therapy sessions were in relation to managing anger only. They were restricted in scope so did not include any work on sexualised behaviour.
Child D was referred to the unit in May 2014 but the referral was not accepted as it did not meet the threshold. The unit felt the child’s behaviour was self-soothing behaviour, related to a sensory condition and advised that the child be given something tactile such as a teddy bear. Counsel for the mother pointed out the unit advised that sexualised behaviours were not necessarily evidence that a child had been abused and said that the behaviours might be soothing. The foster carer was told to tell the child that if she wanted to touch herself, she should do so in private and that she should not put things in her bottom because she might hurt herself. The foster carer said she was informed of some of that advice, but not the reason for the child’s behaviour.
In August 2014 the foster carer reported that while watching TV, the other children in the house called her over, they said, “she’s doing it again”. Child D was making sexualised behaviours towards Child C and saying “I love you”. Child D reportedly said: “Ma and dad do it, I saw it in my house”. The foster carer alleged that Child C attempted to influence his sister to stop her talking.
In summer 2015, the foster carer reported that by chance she found a set of drawings of body parts in Child’s D drawing book. The foster carer said Child D explained that she while she had drawn some of them there were others that she did not know how to draw so she had asked Child C for help. The foster carer asked the child to describe what the painting meant and wrote the description the child gave her on the back of the relevant drawings. These descriptions included “this is a bum”, “a hole”, “a girl’s privates”, “penis with liquid coming out”, “that’s a willy and a bum”, “this is a bum with a hole and this is the willy in the hole”, and “that’s a willy going up a bum”. These drawings led to Child D being referred to the unit again. A report of the unit’s psychologist is provided later in this report.
In November 2015, the foster carer reported that Child D got upset and said the judge did not listen to her the last time: “He forced me to go home, the horrible social worker sent me home and it was horrible.” The foster carer reported that Child D said repeatedly that no one listened to her.
During the summer of 2016, following the withdrawal of the Care Order proceedings the children remained in care under a voluntary arrangement.
On being questioned by the father’s barrister on whether she had an issue about reunification, the foster carer said she was not against reunification as long as the services were provided. The barrister then asked why the foster parents issued proceedings in the High Court and the CFA’s barrister objected asking what the High Court case had to do with the threshold which the CFA have to meet to secure a Care Order. The judge warned: “This is the longest cross examination I have ever had in a child care case, there is a limit to where you can go with this. I want you to concentrate on matters that go to the witness or to the threshold.”
The foster carer said that her concern in July 2016 was not that the Care Order application was dropped but rather that the children were not getting the services that they needed. She gave evidence that she was told at a meeting in July 2016 “that because we were no longer spending all this money on the court case, the children would get what they needed and I left that meeting elated”.
The foster carer described that the night before a planned family holiday at the end of July 2016 they got a call to tell them a car was on the way to collect the children. This call was followed by another one from the foster agency to tell them the CFA were going back into court the following day to get a care order and that the children could stay for one more night. The foster carer said: “We couldn’t go on holidays and were in fact under house arrest for the following six months because we were not allowed to leave the house for any longer than 12 hours at a time”.
In August 2016, the foster carer reported that Child D was upset at the news of the planned reunification. The night before she was due to go home she asked to have a sleep-over in the room of her foster sibling. Child D allegedly told her foster sibling while playing a “let’s tell secrets game” that when she lived at home, her mother and father went to bed with no clothes on and called her into their bed with them and she saw their privates. The foster child reported that Child D made disclosures to her regarding sexual abuse by her parents of an exceptionally serious nature.
Two days after the alleged disclosure was made, Child D met with her social worker and said that she did not want to return home because she could not go horse riding or on holidays and she did not want to upset her foster carer or her foster siblings by leaving. The social worker reported that she asked specifically if there was any secret she needed to tell and Child D denied that she had told her foster sister any secrets and said she would tell the social worker if she had a secret.
In advance of the planned reunification in summer 2016, the foster carer acknowledged that the other children in the house (her child and another foster child) were worried about Child D being returned home, especially because one of the children had witnesses Child D kicking and screaming and being strapped down in the car when she was being reunified two years previously. The barrister for the mother put it to her that the whole family were distressed that weekend because Child D was upset and that they had been very affected by the last reunification and traumatized by it. The foster carer denied that there was a highly charged atmosphere in the home and re-emphasized that she supported reunification as long as the work was done prior to reunification.
In early September 2016, after asking about the reunification, Child D gave drawings to the foster carer for her to pass on to the social worker. The drawings were of private body parts and were labelled, “little girls privates”, “a willy” and “an adult private” drawn with hair. When asked by the foster carer why she drew such things, the child reportedly replied: “I had an idea, will I need to go home now?”
In early October 2016, the foster carer reported that out of the blue Child D said: “I have lots of very big secrets that I haven’t told anyone…I am afraid of things I have not said.” In November 2016, Child D was observed crawling and bearing her naked bottom and of trying to take a photo of her privates. In her evidence, the foster carer reported that there was an increase in sexualised behaviour following access visits. She reported that Child D regularly exposed her private body parts to other people in the house.
In December 2016, the foster carer observed Child D started doing gymnastics on the couch and had removed her knickers and showing her private parts to the other children. That same month during an outing, Child D, now six years, became upset and said: “I hate my life, I want to kill myself, I want to take a knife and stick it in my head, I hate the judge.” This was the first time she spoke of killing herself. A week later the foster carer reported that on way to school during an argument with her brother she said: “I hate my life, I wish I was dead, I want to live on the street.” The foster carer said the child often spoke about killing herself and everyone else and self-harming during a tantrum.
Other observations about the children:
After returning to foster care, there were difficulties regarding the children, in particular with Child D who did not want to go to access. The foster carer said: “This is a characteristic of [Child D] periodically.” The foster carer gave evidence that she always encouraged Child D to attend access.
The Child in Care Plan from 2013 described Child C as “popular and social with a wild streak”. However, the foster carer gave evidence that since he had come back into care she had noticed that things had changed somewhat for him within the school community. He seldom had play dates and had only recently been invited to his first birthday party. She said: “I think parents think he is bad news or trouble”. In relation to play dates for Child D, the foster carer said that while she had no difficulty getting invites the child did not want to go to strangers’ houses for play dates.
Foster carers’ relationship with family
Initially there was a good relationship between the foster carers and the parents, however this relationship subsequently deteriorated. The foster carer gave evidence that the fostering agency instructed them to break their link with the parents to protect the placement and in light of threats made to the foster parents of the older children. Her understanding was the instructions to the foster agency had come via the Gardaí. The foster carer said that she disagreed with the decision but she did not have any choice. The legal representatives for the parents said there was no evidence to substantiate this claim.
The foster carer also said they got mixed messages on how to handle the parents visiting their home area. The foster carer reported that the Gardaí advised them not to have the parents visit their village as the parents were considered to be “very dangerous”. In advance of Child’s C First Communion the foster carers expressed this view to the social workers. The social workers gave the foster carers the option of not attending the event. In the end the foster carers and parents both attended. However, the foster carers were not happy that they were put in a position that went directly against Garda advice.
In 2015, one week prior to a planned holiday, it emerged that the parents had not consented to the children travelling with the foster family outside of the jurisdiction. There was conflicting evidence given in court from the social worker and the foster carer on the sequence of communications and therefore who was at fault. An application was made to court to dispense with parental consent, however this application was withdrawn as the parents subsequently provided consent for the children to travel. Counsel for the mother said this incident was badly handled, upset the children and had a negative impact on relationship between the parents and foster carers.
The social worker said she informed the parents that the children would have to go into respite if it was not possible for them to go on the holiday. The barrister for the mother said the children were told the foster parents wanted to put them with strangers instead of going on holiday if the parents did not consent, and the children got involved in the issue by asking the parents if they could go on the holiday. The foster carer denied she had said this to the children.
The court was informed that the father is a Traveller. Counsel for the father cross-examined the foster carer on her views and knowledge of Travellers and asked what steps the foster carer had taken to foster the children’s cultural identity. Counsel for the father criticised the foster carer for not making reference to the child’s ethnicity when she wrote seeking a place in school for Child C in 2012, even though she was aware of their background.
The social worker also gave evidence that the relationship between the parents and the foster carer deteriorated over time and communication stopped altogether. She noted that a meeting was organised for the purpose of allowing the mother to express her concerns around the children’s presentation. During the hearing, a series of allegations were put to the foster carer by counsel for the mother that focused on statements the mother said the children had reported to her. These included claims that the foster carer told the children when they were going home; not to trust the parents, that there had been a disagreement between the foster carer and the mother, that the child’s mother hated the children, and that the foster carer wanted the parents to get arrested.
It was alleged by counsel for the mother that Child D had said that if she wet herself the foster carer would shout at her and tell her that she wanted her to go and live with strangers. The mother had also expressed concern at use of inappropriate language and activity by Child D and said the child told her she learnt it from the other children in the foster home. The foster carer denied all of these allegations.
Training & Note Taking
The foster carer was cross examined on her choice of and relationship with the private fostering agency, her induction, the agency’s protocols and procedures, her training and specifically any training on note taking and the reporting of incidents of concern.
The foster carer responded that the instructions she received on note-taking were always vague. The foster carer testified that if she saw something which raised a red flag or which was unusual, she would put it in an incident report and send it to her link worker. She said she only reported new behaviours in her incident report forms. Counsel for the mother showed the foster carer the contract which she and her husband signed in relation to the children’s care, which included reporting obligations. The foster carer said she read it the day she signed it but had not read it since. Counsel for the father noted that the contract said she “must report all significant incidents affecting the child within 24 hours”. The foster carer admitted that she had not always complied with that timeline and that her link worker gave her latitude in that respect. She said she had a very busy household, “I care to the best of my ability … life goes on around paper work.”
The foster carer was cross-examined in detail on when and how she recorded details of incidents that became incident reports. For example, she said that she took notes on the July 2013 masturbation incident while she was away on holiday and then typed it up when she was back home as she did not have a computer with her. Counsel for the father asked why the foster carer had destroyed her contemporaneous notes. She replied that she destroyed the notes once she had inputted the relevant information into electronic reports on her computer. She noted that on the instruction of her link worker she had kept Child D’s drawings from mid-2015.
The foster carer said she filled in a monthly report of how the children were getting on and logged a separate incident report on anything unusual. She said: “If I knew the documents were going to be in a court of law I would have filled out more. I had been requested to not repeat [myself] if the behaviour is similar.”
Referrals to Sexual Assault and Assessment Unit
A number of referrals were made in respect of Child C and Child D to a Sexual Assault and Assessment Unit between 2012 and 2015. However, no assessment of the children was completed. The unit’s psychologist, Expert C, gave evidence in court. The psychologist explained that an assessment was not carried out on foot of the 2014 referral (which came by way of an allegation of sexual abuse by an older sibling) as the children themselves did not make a disclosure at that time.
An incident in January 2015 led to a referral being made for Child D to the unit. The foster carer reported observing Child D rubbing her private parts and overheard her asking her foster sibling, “do you want to play the willy touch game?” which she described as a game where you touch each other privates and play mummy and daddy. The foster carer reported that Child D was unaware she had said anything unusual while Child C said “no, you don’t”. The children had attended an access visit the previous day.
The barrister for the mother asked the foster carer about her reaction to this disclosure. The foster carer said that she was shocked to her core and thought “oh my god, someone really had done something to her.” The barrister for the mother put it to her that she had made her mind up in relation to the disclosure prior to it being assessed by the professionals.
The foster carer was questioned by the legal representatives for the parents about her interactions with the Gardaí. The foster carer denied discussing the behaviours of the children with the Gardaí. However, she acknowledged that she spoke with members of An Garda Síochána on several occasions over the years because they were repeatedly asking her to provide a statement against the parents (which she declined to do) and said she might have answered questions regarding the children’s overly sexualized behaviours when asked about them by members of the Gardaí.
In advance of Child D’s assessment following the January 2015 referral, information on the child being provided to the unit needed to be approved by the court, which led to a delay. The child commenced the assessment in summer 2015. She attended two interview appointments during summer 2015 and a third and fourth appointment were scheduled. However, the unit received a phone call from the foster carer who reported that Child D had said she would only go to the next interview if it was to talk about horses. The unit concluded that Child D was not ready for an assessment and so a decision was made not to proceed. The social worker also confirmed this in her evidence, she reported that the assessment was not concluded because Child D would not engage.
The unit’s psychologist told the court that in circumstances where an assessment stops the unit makes recommendations. In this instance they recommended non-directed play therapy which might include Stay Safe work. This recommendation does not appear to have been followed up at that time as play therapy for both children was not commenced until November 2016, over a year later.
Following the incomplete assessment, the unit asked the foster carer (as the child’s primary carer for the preceding six months) to fill in a CSBI questionnaire (child sexual behaviour inventory) in relation to Child D’s sexualised behaviour. The psychologist acknowledged that ordinarily the forms were filled out at the unit. However, on this occasion, they posted her the questionnaire (with no specific instructions) which she completed and returned by post several weeks later. The barrister for the mother questioned both the unit’s psychologist and the foster carer on the purpose, use and administration of the questionnaire. The foster carer said that she filled in the questionnaire from memory and did not refer to monthly compulsory reports or incident reports. The barrister for the mother criticised this approach and questioned the accuracy of her answers.
The psychologist described the CSBI questionnaire as one assessment tool used to get more clarity around the information being given. She said that ordinarily they would follow through on the items on the questionnaire, but due to the fact that the assessment stopped, they didn’t follow up on the answers. The psychologist confirmed that the scoring of the CSBI questionnaire was not simple addition and that scoring was calculated in relation to the developmentally sexually related scale (DSRP), the SASSI scale and a total scale. The DSRP relates to a history of abuse and the questions relate to showing private parts to adults, standing too close to people and aggression linked with sexual behaviour. The rest of the questions fell under SASSI which was more of a statistical analysis of instances of sexualised behaviours.
The judge queried if there was a recommended time within which to complete the CSBI questionnaire and noted that the form was with the foster carer for approximately two weeks, he understood the recommended time to be 30 minutes. The psychologist could not confirm whether or not the length of time would affect the rating. The judge then asked if the accuracy of the test could be affected if the person filling in the CSBI questionnaire had already concluded that the behaviour was sexualised. The psychologist responded that it potentially could be. She also stated that the CSBI was very specific as to whether something had been observed or not, which potentially mitigated any bias.
The unit provided the court with a report in which the unit concluded that within the past six months Child C had displayed sexualised behaviour that was clinically significant and concerning for a child of her age. She noted that the report of the child showing her private parts to adults once a week was one of the factors that contributed to this finding. The unit’s finding was criticised by counsel for the mother as the report was based on reports from one person, the foster carer. The judge also pointed out to the psychologist that as the CFA was receiving its reports from the foster carer, the CFA’s and foster carer’s reports were from the same source. The unit did not corroborate the foster carer’s reports from any other source – they did not contact the child’s school, crèche, or interview other relevant people in the child’s life.
The psychologist was also questioned as to whether the unit explored other explanations for the child’s sexualised behaviour, including age-appropriate transient behaviour or another source where the child might have learned this behaviour. She agreed under questioning that situational factors, including a care environment, might be a possible factor.
Child D was described in the unit’s report as being evasive and highly avoidant of speaking about private body parts. The judge asked what would be expected from a five year old girl normally, to which the psychologist replied that they tried not to have expectations. The judge expressed concern that the witness did not look for other possibilities for Child D’s avoidant behaviour. The psychologist said they considered that the sexualised behaviour might have resulted in responses from adults which might have generated certain responses in relation to body parts. However, as the assessment was stopped, they did not explore that beyond the assessment.
The judge then asked if they considered the fact that Child D had spoken to the Gardaí on four occasions might have contributed to her avoidance. Further avoidant behaviour was reported in relation to Child D talking about her family. The judge pointed out that there could have been a number of reasons as to why she avoided talking about her family and said: “There was a dispute around this time in relation to the children going on holiday, the fact is that the children were informed they were to go on holiday and then they were told the parents wouldn’t let them go on holiday. It appears the children were disappointed. Would that have any effect on Child D avoiding or not wanting to talk about her family?” The witness said it was extremely difficult to predict and that was a possibility.
The judge criticised the fact that the unit’s report included a number of observations about Child D being avoidant but it was not clear in the conclusion what the authors of the report were suggesting.
The cross-examination of the psychologist was hampered by the fact she had not brought the child’s file with her to court. She only had her report prepared for court. This led to the witness repeatedly having to say that she was unable to answer the question posed as she did not know or could not remember the relevant information, including her engagement and discussions with the parents.
Education and Mental Health
The principal from the children’s primary school gave evidence. She had known the children since they began attending as junior infants and saw them daily. She described the children as being in need of psychological assessments. Counsel for the father objected to this statement, contending that the principal was not qualified to make recommendations regarding psychological assessments, however the judge overruled the objection, stating that he would decide if her evidence would be considered or not.
The principal said that she first requested a psychological assessment of Child C in 2014. She acknowledged that a test had been carried out in relation to the boy in 2016 but it was inconclusive and was not sufficient to get educational supports for him. She indicated that the school had been unable to obtain a psychological assessment of Child D as she had not yet reached the minimum age of eight years.
She said Child C was not on the national psychological service (NEPS) waiting list as the school was told that he would be assessed privately. However that was over two years ago and the child was still waiting and would need to wait a further four years to be seen publicly. The principal told the court that the process should be expedited by getting a private assessment and that the parents had consented to a NEPS assessment being carried out.
The principal told the court that in early 2017 she wrote to request a full psychological assessment for both children. She said in her 20 years’ experience she had never written a letter like it and that she was very frustrated by the situation. The barrister for the GAL pointed out that the psychologist recommended that Child C attend the child and adolescent mental health service (CAMHS), and the GAL was concerned that this had not occurred. The principal confirmed that this was also a concern for the school.
The principal was asked if the she thought that the children being returned home and then going back into care had an impact and she said that it had had a huge impact on them and their schooling. She said that a NEPS assessment would assess behaviour and she thought that was very important because she felt that behavioural difficulties were affecting the children’s education.
The principal was also concerned about Child D’s speech and language and her progress in some other areas. She gave evidence that Child D soiled herself daily in school, was presenting as anxious and stressed and that the child had told her teacher that she did not want the judge to take her away.
The principal also expressed her concern that Child C had auditory memory, social judgment and comprehension difficulties. In relation to emotional problems, she was of the opinion that he got frustrated when he failed to finish things and his coping skills were not very strong. She gave evidence of observing him when he did not think anyone was watching and said that he can be quite down. She said Child C “is of average intelligence which means he should be able to take in the information, but he is not, so something is not adding up.” The principal finished her evidence by saying: “There is an obstacle to his learning and we don’t have the knowledge to identify what it is.”
Signs of Safety
Expert D, a social work consultant with the CFA specialising in Signs of Safety, attended court again in May 2017 to provide an update on her earlier testimony. She told the court that she began her work in relation to the Signs of Safety process with the family in early 2017.The meeting was attended by the parents and a number of people from their naturally occurring network.
The consultant gave evidence that the meetings focused on danger statements, concerns and safety goals. She said that they explored what was working well, what the worries were and what next steps needed to be taken. She informed the court that a lot of the stages in the first section (six weeks) had been accomplished. She said that the safety journal was being compiled and the danger and harm statements had been amended and shared with the family. The consultant highlighted that there had been no difficulties with the family and parties attending and participating and said that the parties believed in the plan. She was of the opinion that it was a very challenging process for the extended family and they had given a big commitment to remain involved. The emphasis was on future focused danger.
Under cross examination by the barrister for the mother, Expert D said she believed that the danger statement was agreed. The barrister read out the following statement: “All children have experienced various forms of sexual abuse in the past.” She put it to the consultant that the position of the respondent parents was that only the two older boys had experienced sexual abuse.
The judge then interrupted and asked if the Signs of Safety process was similar to counselling or mediation. He said that if that was the case, then perhaps it should not be open to the court at all. The judge was concerned that if the process had any chance of succeeding then it would not do it any good to pick it apart. The barrister for the CFA said that she was not asking the court to make any findings in relation to Signs of Safety and acknowledged that it was not an accepted but rather an agreed document. The judge responded: “If there is a process which is presenting opportunities which the court cannot provide, I’m loath to undermine them.” The barrister for the CFA asked for time to get instructions on the issue and the witness stood down.
Adjournment of Care Order Application
In July 2017, the CFA applied for an adjournment of the care order application. The adjournment was supported by the parents. The adjournment was granted until the end of October 2017. The CFA indicated that they were working towards reunifying Child C during August and Child D in the autumn.
During this second care order application, the court had heard six witnesses in part or in full. As the evidence had not concluded the court was not in a position to make any findings of fact.
“I’ve lost count of the number days I’ve heard this case for, in all of that time I haven’t been in a position to make a decision in this case because I haven’t heard the evidence,” the judge told the parties.
Adjournment of Section 47 Applications
The section 47 application (seeking directions on an adequate risk assessment) commenced in autumn 2016 and remained open while the Care Order application was being heard. When the care order application was adjourned, the legal representatives for the foster carers and the GAL applied to adjourn the section 47 applications until the case’s next scheduled date.
Counsel for the foster carers said that his clients were alarmed by the CFA’s plans for family reunification. He expressed concern that the planned sex education work with the parents had yet to be completed; he expressed the view that the CFA was engaged in an unreasonable and parent-led process and called it a “back to front” process to placate the parents. He said the CFA were “enthusiastically ridding themselves” of this case and the reunification was a “betrayal of the children”.
Counsel for the GAL noted that the GAL was not raising an objection to the adjournment of the section 18 (care order) proceedings as previous successful objections had had unintended consequences. He expressed concern that the CFA had committed to have the children psychologically assessed. He understood that the parents had not consented to this until now and noted that the GAL had said this was not how she would have sequenced matters.
Both counsel for the foster carers and counsel for the GAL stated that Child D was opposed to the plan and had “strong reservations” about returning home.
Counsel for the CFA said there had been “robust planning and complete and entire commitment since early February from the parents.” She said they had been working under the Signs of Safety framework – the CFA, parents, facilitator and the GAL had been invited into relevant meetings. She said there was always a chance the Signs of Safety process would lead to an application for an adjournment. She said the sex education had commenced and there would be feedback on this before Child C went home and the sex education would continue after reunification. She noted that the recommendation on the need for open discussion raised by the consultant had been addressed.
The legal representatives for the CFA and the parents objected to the application to adjourn the two section 47 applications with liberty to apply on the grounds that there was an active reunification plan in process and queried the legal basis for this application. Counsel for the mother said she was very concerned about the comments made by counsel on behalf of the foster carers. She pointed out that the foster carers acted as agents of the State carrying out a role on behalf of the CFA. She reminded the court that the parents had worked tirelessly and complied with everything that the CFA had asked them to do. Counsel for the father reminded the court that there had never been any finding against the parents concerning the allegations of serious sexual abuse of the children. She also noted that the foster carers had previously indicated they were happy to see a reunification.
Counsel for the foster carers replied to these submissions by noting that the foster carers believed and still did believe the risk assessment to be deficient. He noted that the CFA was keeping the foster carers abreast of the family reunification plan and the sex education piece in the most “vague terms”. It was therefore impossible to know if the section 47 application was moot or not.
The judge commented that this was a case with a very long history. It had understandably excited strong emotion from all people involved who he believed had the best interests of the children at heart. He said that as with all child care cases “all parts continue to move” and the relationships between the children and other parties also change. He commented that he had heard 50 days of evidence in this case and hardly a day had gone by that something had not changed with things transpiring to be somewhat different than first appeared. He noted that parts were moving both inside and outside of court and that the movement outside of the court was the important dynamic, with cross over between what was happening inside and outside of court.
The judge remarked that he had heard an amount of evidence but he still had not heard all the evidence and he had not heard evidence from the parents in relation to the allegations made. He noted that the dynamic outside court had made progress and so it was now appropriate for him to adjourn the section 18 application as requested and to allow the dynamic outside of court to proceed. He said he could not expect all parties to be satisfied. He said this was the second time he was in a position to hear evidence in a section 18 application in this case but he, “would not comment on how we got here, that is a matter for another day.”
The judge adjourned both section 47 applications to the end of October 2017, including allowing counsel for the foster carers liberty to apply once the application met the usual justification and notice period. He also adjourned the applications for costs to the same date and said the section 37 and discovery application still stood.
When the case returned at the end of October counsel for the CFA made an application to withdraw the section 18 Care Order.
The court did not rule on the two section 47 applications opened in autumn 2016. They remained open until late 2017. Towards the end of 2017, they were deemed to be spent at the point at which both children were no longer in care and had returned home.
Counsel for the respondents told the court they would be seeking costs against the CFA in relation to the section 18 applications and against the GAL in relation to the section 47 application.
The costs issue was put in for mention for a date the following month, the judge asked the Legal Aid Board to have written to whoever they were claiming costs against in a preliminary and brief way to enable the preparation of a schedule of the various claims that were being made. “Is this crying out for any form of mediation?” wondered the judge. It was a “dispute over what is likely to be a very substantial amount of money.”
The judge allocated four hearing dates for costs in 2018. He noted that there was an “enormous amount of costs involved which would have to fall somewhere, where they will fall is another matter.” He also remarked that the costs application would need case management. “Looking at the size of the file and the number of parties involved, the costs involved are somewhat substantial,” remarked the judge.
There was a disagreement between the counsel for the parents and counsel for the CFA as to whether the section 18 had been withdrawn or discontinued. The dispute was as to the legal manner of its ending although the parties were agreed it was to end. This distinction had implications regarding costs. Counsel for the parents contended that it was a discontinuance and therefore order 47b 1(6) of the District Court rules applied and costs should be awarded. Counsel said: “The CFA says the rule does not apply to them because of their statutory duty, we say it does, that order 47b 1(6) cannot withdraw or discontinue without permission of the court.” Order 47b provides for withdrawal of a claim on consent on rule 3, counsel for the parents said. However counsel for the CFA told the court the section 18 application was being withdrawn under section 16 of the Child Care Act 1991.
“I’m not raising any issue in relation to withdrawal,” commented the judge, “so the proceedings are withdrawn, I’m not making it in relation to 47b. Regarding costs it remains to be determined if it is a withdrawal or a discontinuance. I’m allowing you to call it a withdrawal, we can decide later what it is.”
In relation to seeking costs against the GAL, the judge left all the applications open to give the parties’ time to consider the situation. “It is not clear to me how the court can award costs against the GAL which was appointed under S.23…by way of a statutory arrangement,” he said. Counsel for the GAL posed the question that if he was successful in defending the costs would he then apply for costs of the costs hearing? “The section provides that the GAL’s reasonable costs are provided by the CFA,” remarked the judge. “As long as the court doesn’t assume there will be no costs at hearing because the guardian is no longer appointed,” replied counsel for the GAL. The judge answered that he would not make a ruling on it that day but if a ruling was needed an application could be made for a declaration on the issue.
Counsel for the GAL noted the novel position he was in, the GAL had been discharged however he [the barrister] was in court and he would have to be there the following month regarding the costs issue being brought against the GAL and again for the four days listed in 2018.
Counsel for the father told the court that her client was, “absolutely delighted to have his children returned to his care and had plenty of time to make up for the period of them being in care.” The mother then addressed the court, saying: “I have been meeting the needs of my children and I will continue to do so and thank you to the court and the solicitors for all their time and energy.”
Care Orders for Child A and Child B
In early November 2016, a section 47 application was brought by the GAL for the older children, Child A and Child B, to seek a direction from the court as to what would happen once the Care Orders expired in mid-December 2016. In late November 2016, the CFA made an application to extend (under 18(6) of the Child Care Act 1991) the Care Order for a period of one year for Child B (who at the time was in foster care) and three months for Child A (who at the time was in residential care – his third placement).
The judge met Child A and described him as “an articulate young man”. The application was heard in late December and included hearing evidence from the parents. By this time Child A had chosen to leave his care placement and had returned home. Both children had communicated that they wished to go home. Child B refused to attend school until a decision was made as he said he thought about it all the time in school.
The social worker and the parents agreed that Child B required a longer transition period because he had not lived at home with his parents but with his maternal grandparents prior to entering care, (as had Child A) and the parents said they would agree to a voluntary arrangement involving his return home on phased basis at his own pace. The judge gave his decision in January 2017. He refused the application for an extension to the Care Order in relation to Child A and Child B, noting that “risk is not enough, the court must be satisfied that risk is likely.” The judge noted that the court had “no power to order transition arrangements.”
As of November 2017, both children were residing at home.