A care order was extended under section 18(2) of the Child Care Act, 1991 in respect of a 10 year old child, following a hearing which examined in detail allegations made by the child in access meetings and recorded by the father. The judge refused an application by the father that the child not be informed of the recordings. There was also an application under section 23 where the court ruled that it was not in the best interests of the child to come to court to give evidence.
Section 23 application
Counsel for the Child and Family Agency said that there were two aspects to the section 23 application. The social worker said that the child would be able to give evidence in the light of her age. However, the child would not have the ability to understand that the giving of evidence in the witness box would lead to cross-examination, she would not understand that concept. The social worker said: “If the evidence was given through an intermediary the child may be able to understand the process given her age.”
She explained: “The child knows she has a social worker and a GAL as a vessel for conveying her views and wishes and it would equally impact on her welfare if she gave evidence through an intermediary.” The social worker explained the child had only turned 10 and in her short life she had been questioned by professionals and repeated questioning had an impact on the child by increasing her stress levels. The social worker was of the view that it was not in the best interests of the child to come to court. She said: “It would be detrimental to her welfare and would impact upon the relationship with her father and foster carers. It would have a negative impact as there has been progression with her father and on that basis the child should not be subjected to giving evidence.”
The GAL agreed with the social worker that the child would be able to come to court to give evidence or give evidence via video link based on her age. She said it was not in her best interests to come to come to court to give evidence as the child interpreted court “as a fight between her carers and her father. “
The judge said section 23 (1) related to age and welfare. He said: “There is no dispute that the child is of sufficient age and cognitive ability to give evidence. The Child and Family Agency and GAL say it is not in her best interests to give evidence. In the particular circumstances of the case and all of the statements which relate to the issues which occurred since she came into care, there is a perception that there is a fight between the father and the Child and Family Agency.” He concluded: “I am satisfied that it is not in her best interests to attend court or give evidence via video link.”
Care order application
When the court resumed the Section 18 (2) application to extend the care order which had been made previously, the mother said she was happy for the care order application to go ahead. She said she had not been in court previously as she was going through a rough patch. The father was objecting to the application under section 18(2) and was calling no witnesses. The social worker said the circumstances of the case remained the same and the child continued to need consistency and stability in her life. In school the child was doing well and had a reasonable academic capacity. She was described as a good reader and competent but struggled with maths.
She had a number of different teachers during the year which had caused her to be unsettled. The social worker said the child received support for her emotional and social needs in school. In the past she struggled with group settings but overall she was doing well.
She explained she last saw the child two weeks ago and met her to complete a review form.
The social worker said that the child was “off form that day”. The child completed the review form independently and by the time the social worker left the child was in good form. She spoke of her holiday to France and what she would do over the summer. She said that the emotional needs of the child were being sufficiently met in the foster placement and the child had expressed no concern with regards to her foster placement. The social worker was satisfied that the child had a good relationship with her foster carers and foster sibling.
There was an ongoing assessment that the father lacked the ability to meet the emotional needs of the child and a psychologist had suggested the father needed psychotherapy. Counsel for the father said that the father was engaging with a psychologist and had attended on one occasion. The social worker said that consistent focus should be on the mother’s contact with her daughter as it has been inconsistent. She said: “The child likes to see her mother more often and the mother can attend and focus on her daughter,” but maintained that the mother was not in a position to care for the child at this point. The social worker was of the view that a care order was required.
The social worker recalled an occasion when the foster carer indicated that the child wished to speak to the social worker. She called and met with the child in the foster carer’s home after lunch time. She said that it was the “best visit she had with the child,” it was a beautiful day so they left the foster carer’s home to get ice cream and a conversation ensued. The child told her she did not want to go the zoo for access and indicated she wanted to go to the Wax Museum. The social worker informed her that the access would be longer than usual so that she and her father would have time to have a look around. It was agreed access would take place at the Wax Museum, but this did not go ahead as it was closed for renovation.
The social worker said the child was distressed during the conversation and the social worker removed the child’s hand from her eye while the child was saying “no, no, no.” The social worker explained that the psychologist suggested an attachment assessment be conducted and he provided the names of two other persons. She said neither of these persons was available at the time and the child did not want to attend the appraisal
Counsel for the father said: “This child became upset on foot of a recommendation of the psychologist, did you bring this to the attention of psychologist and ask if it was appropriate and correct that the assessment take place?”
The social worker responded: “No, I didn’t feel the need to contact the psychologist to advise of the child’s presentation. The child struggles engaging with new professionals. The child was nine years old at the time and she was distressed.”
Counsel for the father said: “The child didn’t want to go to the zoo and her wishes were followed. You felt the need to remove her hand from her eye. When she was distressed about the assessment you decided to proceed. Are you satisfied that the child consented to the assessment?”
The social worker said the child “would not have participated if she did not consent” and “this assessment was appropriate in the child’s best interests.” Counsel said: “The child gave an express wish that she wanted access reduced and you followed that wish.”
Having read the transcripts of the recordings of the conversations between the father and child during access, the social worker was aware that the child had stated concerns regarding her foster carers as she spoke of being shouted at and slapped. The child was also informed by a social worker that the father slapped the mother.
There was a serious notification on the foster care file and this was addressed. The social worker said this notification was “not in relation to the care of the children, but rather the engagement of the foster carers with professionals.”
The foster carers were involved as lay litigants in proceedings regarding their home but the social work department was satisfied that the foster carers had alternative accommodation which was owned by family. She said the involvement of the foster carers in legal proceedings had no “direct impact” on the child but acknowledged it was a stressful situation.
The judge asked if the social worker reconsidered her position with regards to the holiday to France following her reading of the transcripts. She replied: “These are matters of concern.” She said the social work department needed to speak to the child and hold a strategy meeting to determine if the allegations in the transcripts met the threshold for physical abuse. She said that the interview would be conducted by herself and her team leader.
The fostering committee was aware of the concerns and the father had brought concerns forward about the foster carers in the past. These concerns were addressed through the foster care review. The child stated she wanted to sleep over at her father’s house and her foster carers told her it was not safe to do so. The social worker said this issue would need to be addressed but maintained that the foster carers promoted contact with the father and encouraged the child to attend access.
The social worker said this was the first allegation of physical abuse and she believed that the child should remain in the care of the foster carers. She agreed that a safety plan would be invoked immediately if the allegations met the threshold of physical abuse. The social worker said there were multiple concerns regarding the father’s engagement with the child.
The child was unaware of the recordings and they were carried out for six to seven months. She said: “The fact that the father recorded the child in access was extremely worrying … the recording of the child was a breach of trust and she was unaware all of the conversations were recorded.”
Guardian ad litem
The GAL said the transcripts suggested a “referral to the social work department and suggested influence from the foster carers and an inability of the father to meet the needs of the child going forward.” She explained access with the mother went very well and the child was “whole-heartedly delighted to see her mother” and had said it was the best day of her life.
The GAL said the statements made by the child in terms of the foster carers needed to be addressed. She had concerns about the father’s management of the child’s emotional welfare and the flow of the conversation in the transcripts. The GAL noted the conversation was pressurised and the child challenged. She said that immediate action did not need to be taken with regards to the foster placement but an assessment needed to be done. “It would be detrimental to the welfare of the child if she were removed from her foster placement. If she were returned to her father, it would have a detrimental effect on her welfare,” she said.
“In terms of access, if [the transcripts] are an accurate reflection of access then this needs to change,” she said. The GAL recommended the extension of the order.
Extension of care order
The judge said the care order was made in December 2013 and had been extended a number of times. Having heard from the social worker and the GAL, he was satisfied based on the evidence that the grounds for a care order continued and he extended the care order to October. He said: “It is not in the best interests of the child to make a decision that would involve her no longer being in the care of the Child and Family Agency pending the full hearing of the care order.”
He continued: “A lot of matters come up, a series of allegations and an application under section 23 by the father. “ He said: “These allegations remain to be proved and at the moment I am told that there is an investigation into the allegations.”
Section 47 application
There was also an application by the father for a direction that the child not be informed of the recordings [of the access meetings]. The mother supported the position that the child should be told about them.
Counsel for the Child and Family Agency said the social worker intended to meet the child and ask her about the concerning part of transcripts. She asked: “Should the child be told about the contents of transcripts and how they came into existence?” The clinical psychologist, giving evidence on this issue, said this child “would experience it as getting into trouble.” She said “because things are not nice doesn’t mean you shouldn’t be told about them” but the father could assist in explaining why he took such action in relation to the child.
The judge asked if telling the child immediately that the father recorded her it would contribute to her best interests. The clinical psychologist said: “It serves the child better to know.” She said the child had a right to know and the sooner the better. “The child had a right to evaluate the relationship with her father and the impact on that relationship will depend on how she evaluates the information and she will be very upset,” she said.
The GAL said the child would feel she had been lied to if she were not told now and she would feel let down. She said that, given the level of knowledge of people who know of the recordings, “the likelihood of preserving the secret of the recordings for another two years was not very high.” She said: “Her father taped her as he had concerns about her safety and he felt as though he was not believed.”
The judge asked: “If the child was told at the age of 12 or 16 she would feel let down. If she was told in two weeks’ time, what would be the significance in relation to harm?” The GAL replied the child would be “thinking she had been lied to or let down.” She said the impact would be worse the longer it goes on.
The social work team leader said she met the father with his advocate and the next step was to meet with the foster carers and child. She said it was in the best interests of the child to tell the child from where information [concerning her allegations about the foster parents] emanated. They intended to tell the child at the end of the interview as telling the child of the recording at beginning would stymie the interview.
Counsel for the Child and Family Agency asked: “If the child asks a question and she asks ‘how do you know this,’ is it suggested she be told then?”
The social work team leader said: “We must lead it in such a way that we will not tell her it [the recording] was a negative thing and highlight that her father is worried about her. She will have an understanding that dad has gone to these lengths as he is worried about her. I think it will be too late to tell her when she is aged 12 or 14 as she has ability to understand.” She said it was in her best interests that the child be told immediately.
The social work team leader said the child did not know anything about foster carers’ court proceedings. She said not knowing what might occur was in her best interests. She said it was intended the foster carers were told of the father recording the child and they would be supported.
Counsel for the Child and Family Agency said that, having regards to the child’s cognitive ability, the application by the father should be refused. The mother’s counsel said her client wanted the investigation to be carried out in a comprehensive manner.
Counsel for the father said it was not the task of court to intrude into the nature of the investigation and said it was a strong area of contention. She said that the “information was available last week and the Child and Family Agency put off interviewing the child and foster carers because they wanted a safety plan in place.” Counsel said it was “not in her best interests that the fact she was recorded is disclosed to her.”
The judge said: “The making of an application under section 23 cannot be isolated. Given the information given to the Child and Family Agency [it] has duty to investigate [allegations against the foster parents] and that is independent of what the court is to do.” He added: “The investigation is moving with speed. I suggest while speed is admirable, it does not necessarily have value. It is a matter of Child and Family Agency to carry out the investigation.”
He remarked that the issue was the investigation and if the investigation was prejudiced by child being told, then the child should not be told. He said: “It will become necessary to tell the child where the information came from and the child is going to find out one way or another that the recording occurred. If I were to make an order that she not be told, it would be inevitable that she will find out. There is no positive in her finding out in an uncontrolled way.”
He said the GAL had identified an opportunity by which the information was to be delivered in a child-friendly way and one which supported relationships. He said: “There is the possibility that the opportunity will be lost if telling her is delayed. She is 10 years old and in care and is the subject of long proceedings and she must process things, she does as a 10 year old can. She has the right to know what is going on and there will be consequences and she needs to know and evaluate the consequences. In this case I am not directing that she is not told and it seems to me that the investigation is primary here and may go beyond a social work investigation into a criminal one. I am not going to make a direction and I refuse the application.”
Foster link worker A
The foster link worker said she was involved with the matter since August 2016 and carried out eight home visits. She said the child was progressing well and the foster carers met her emotional and developmental needs. She said: “The foster carers understand the importance of contact with the mother and father and have regularly spoken to the social worker about contact.” The child had spoken about how she wanted to see her mother and the foster carers made sure the foster link workers were aware of this and every effort was made to make contact with mother. She said there were “no concerns about their ability to foster.”
The foster carers booked a holiday and when the holiday was booked the court dates had not been set. The foster carers booked a place for child and if a decision regarding the care order had not been made she could not go with them on holiday. The foster link worker said she had no concerns with them taking the child on holiday and that it was something positive for the children.
Counsel for the Child and Family Agency said there had been eight months of recordings of conversations by the father of the child, some of which related to fostering. She said the foster carers understood the importance of contact with the father and they ensured the child was prepared for visits. They encouraged her to go on visits. She said the foster carers “ensure the child can talk to them about anything and they check in with her around visits and give her space.” She said: “The child needs to be confident access is consistent and she needs routine … access is important to build a relationship with the father and the child enjoys access with her father. The visits are going well and the child is happy after visits.”
The child was comfortable with the predictability of the visits. The foster link worker said there was a visit at Christmas and a plan was outlined to the child but this was not how access unfolded. The child said that she did not want to see her godfather but explained she saw her godfather by chance at access. The child was withdrawn and quiet following that visit. “After a visit she would chat about stuff and after this visit she never spoke of what happened,” she said. It was an important time for the child to build a relationship and a sense of trust.
There were allegations that the foster mother said to the child: “If you don’t want to go [to access], you don’t have to.” She said: “Part of a foster carer’s role is to advocate and ensure the child’s views are heard … If the child speaks to foster carers about not wanting to go to access, the foster carer communicates this to the social workers.” At the end of the summer the child went to father’s house, the foster carers informed the social workers and they had photos of the house prior to visit. The foster carers expressed concern with regards to the plan as the social worker was to bring the child to the house and the plan as described to them had not happened. She said there was no plan in place for overnights stays with the father and she had never made a statement about the safety of the child with her father.
In conversations four and five the child said: “I get slapped by mam.” The foster link worker said she was not aware of any incident of slapping and discussed discipline with the foster carers. The foster carers managed challenging behaviours by sitting down and speaking to the child. In certain situations the foster carers had to remove privileges but she said there was a need to discuss the transcripts with the foster carers.
In conversation seven the child identified her foster sibling as a person who hit her as she said: “My brother hit me and boxed my head…. the only person who hit me.” The foster link worker said the foster carers never reported an incident involving the foster sibling hitting the child. They reported that the child and foster sibling had a good relationship.
In February the foster mother spoke to the foster link worker and said the child had shown her the Facebook page of her birth mother. The foster carer said Facebook was not an appropriate way to make contact with the mother and the child had no further access to Facebook as the foster carers de-activated the Facebook application and installed Nanny-net to safeguard the children. The foster link worker said the child did not have the WIFI password and she needed to go to the foster carers to get the code. Since the incident her device was taken away and the foster carers checked the settings and ensured she did not have the WIFI code
She said, having read the transcripts, it was her opinion that the child was best placed with the foster carers at this time and the recordings had not altered her opinion. There were never any concerns raised about finances and the social work department was confident that the child and her foster sibling had opportunities to have extra-curricular activities, good clothes and toys.
The judge asked if the fostering contract contained an obligation to contact the Child and Family Agency regarding any medical changes. She said: “If anything arose the foster carers should inform the Child and Family Agency.” There were ongoing concerns that the foster carers claimed the child as their own although the father christened the child and chose her godparents.
The judge asked if the foster carers feared the child would be returned to her natural parents. The foster link worker said they did and they understood that the child may be returned to her birth family.
Counsel asked: “Has her relationship with her mother and father been impinged upon by the foster carers claiming her as their own?” She replied: “No, it is normal for children to have relationships with extended family members.”
She said she had read the transcripts and was aware that the child made allegations of hitting, discouragement of contact with her father and an unwillingness to facilitate that relationship. She said: “If issues of concern arise, they will be addressed by myself on an ongoing basis and will be addressed with the foster carers.” She added it would be a concern if a child were slapped by her foster carer.
Counsel for the father asked: “If the child was slapped by another child in placement, is that a concern?” She replied: “Yes, but that is a different concern.”
Foster link worker B
The foster link worker B worked as acting fostering team leader in 2014 and it was her role to supervise fostering link workers with the foster carers and attend meetings. She met the foster carers on a couple of occasions to address lack of communication with the social work department. She met with the foster carers due to the observations of foster link workers involved at time and the general concern was the foster carers’ capacity to promote the relationship with the child’s father. She said: “Another time the father sent a picture of his dog and the foster mother could not support the child in an adequate way with the photo.”
A foster care review was carried out which reviewed the foster carers’ experience from the date they were approved and the views of children placed with them. She said the foster care committee upheld the recommendation that the foster carers remain as foster carers. She said there was a mechanism in place for approving foster care reviews and an interim report would be written. The foster link worker was not aware if foster carers had engaged in training following the review.
She said: “The foster carers meet the needs of the child in respect of the court processes but they find the care proceedings more stressful than [the other proceedings].” She described the presentation of the foster father in these other proceedings in 2015 as he represented himself and was asked to address the judge. She was concerned about the way in which he left the courtroom before the matter was closed. She said: “We look at foster carers to see what their needs are, and if they are financially able to meet the children’s needs.”
She said: “The foster carers were not obliged to provide details of their income,” and they had no other income apart from social welfare. The foster father underwent a medical assessment. She said the disability of the foster father “would have been considered” but he was signed off as medically fit to foster. The foster mother was also deemed medically fit to foster. She remarked the foster carers “provide unconditional love to the children in their care and have shown resilience dealing with the demands … I do believe they do as best they can in the face of a difficult relationship with the father, they understand there is a necessity to promote that relationship.”
A serious concern was raised following the foster father’s inappropriate contact with the social work department. She said: “It arose at a stressful time and he acknowledged communication with social work department was inappropriate.” There was an incident where the foster father ordered the foster link workers off the premises. A serious concern notification was not conducted but the incident was discussed at a strategy meeting. She concluded: “I have no concerns with foster carer’s capacity to care for the child.”
She explained she and the then social worker interviewed the child in March 2016. She said the first meeting with social worker was to discuss the transcripts regarding the child and the meeting was necessary due to the statements the child made in transcripts. There were statements regarding the child’s awareness of court involvement in her life. The social worker convened the meeting and the outcome of meeting was to speak with the foster carers and ascertain their views while the social worker spoke to the child.
In April 2016 she had the transcripts to hand and elicited the foster carers’ responses. The response of the foster mother was that they had not been in court when the father gave evidence. The foster mother said the child asked her about court and the foster mother said “you have to tell truth in court.” The foster carers stated they said little to the child but acknowledged that they told her “you have to be calm.” The foster mother denied she asked why the father was jealous of the foster carers. She denied saying that the father tells lies and she maintained they never would have said that to the child.
The judge asked: “Was their answer they never said it at all or to the child?”
She replied: “They said they would never say that to the child.”
The judge asked: “Is there an open possibility they may have said it given there was no one else in earshot? They said it to each other or to another that the father is a liar?” She replied: “It doesn’t eliminate a possibility.”
Counsel for the father asked: “These transcripts indicated some knowledge of the foster carers of what happened in court in in camera proceedings. Was an enquiry raised as to whether the foster carers knew of what happened in court?” She said: “There were discussions regarding what happened in court.” The child made statements about how the father presented in court and the fostering link worker had a copy of the report of the social work team.
The child remarked the father lost his temper in court but the fostering link worker said the “foster carers said they were not in court so they couldn’t say whether he lost his temper.” The foster carers denied having made the statements about him losing temper and they were concerned and puzzled as to why the child would have made these statements. Having observed interactions between the father and the foster carers, she said: “There has been little positive interaction between the foster carers and the father but the foster carers didn’t refer to this at the meeting.”
She did not know if the foster carers knew that the child was to meet with the GAL and the social worker, but that “was not to say that they didn’t have that discussion with her beforehand.” She said the statements of the child were not true and it was likely the child created her own version of events. She said the father’s concerns regarding the foster carers were unfounded.
Counsel for the father: “You have discounted the statements of child regarding what the foster carers said, why did you discount these statements at the meetings but included the statements which were negative of the father?”
She replied: “There is no evidence that foster carers do not support the child.”
There was a meeting in the foster carers’ home and the clinical psychologist gave evidence regarding that visit. The child was a victim of bullying and the fostering link worker spoke with the foster mother and advised that the social worker would speak to the teacher. She said the teacher singled out the child in relation to her behaviour. The foster mother found soiled clothes and was concerned. She questioned the child as to why she hid the clothes.
The child hid her soiled clothes in her bedroom and the link worker said: “She may have hidden them out of shame.” According to the psychologist soiling was a sign of mistrust and she recommended the child re-engage with psychological supports.
The foster link worker said: “The demeanour of the child was fine, and there was no sense of stress in room when the child was interviewed.” She said access had been taking place in a house which was becoming loosely unsupervised and it crossed her mind that the child was having conversations with her father which could have caused distress but the child was showing no concerning behaviour before or after access. The foster link worker did not consider it a possibility that something happened in the placement to cause the behaviours of the child.
The case continues.