A care order hearing commenced in Dublin District Court in respect of three children, A, B and C, the youngest of a large family. Both parents were represented and contested the application. The mother was assisted by an advocate. The guardian ad litem (GAL) supported the application.
There were issues of neglect in respect of all of the children and allegations of sexual abuse made by an older child, F, against the father. The Child and Family Agency (CFA) was seeking a full care order to the age of 18 years pursuant to section 18 (1) (b) and (c) of the Child Care Act, 1991.
There was an objection by counsel for the parents to the CFA calling a psychologist who conducted a credibility assessment of F’s evidence. The accounts given by F of child sexual abuse included evidence given during the interim care order hearing. The psychologist was due to give evidence about the concerns relating to the credibility of F’s evidence given to the Gardaí.
The judge said: “There are exceptions to the hearsay rule. There is no exception that would apply to a person who is no longer a child. An application was brought [to enable] [F] give evidence via video link, I made the order that evidence could be given by video link with a support person and that has happened but I have not heard evidence from [F].”
The judge asked if it were premature to call the psychologist to give evidence.
Counsel for the CFA said: “No. He [the psychologist] will give not give an assessment of the evidence, the evidence she will give to you, it will be the account of the abuse to date.”
Counsel for the father said: “The CFA is seeking to call evidence of the credibility of a witness that usurps the function of this court. He [the psychologist] never met the complainant.”
Counsel for the GAL said the GAL was supporting the CFA in calling the psychologist. He said: “We are not dealing with a run of mill credibility. The credibility is the evidence that has been before the court. The young person has an intellectual disability and expert evidence may be obtained. The psychologist has not met [F] but he has viewed her evidence … The psychologist has been careful or even too careful and it is not for him to ascertain whether the allegations are true. He is critical of aspects of the interviews.”
Counsel for the CFA said terms of reference were agreed regarding the psychologist’s assessment.
The judge said: “There was a peculiar agreement, whereby the terms of reference were agreed and the in camera rule was lifted … There was an agreement to send the terms of reference to the psychologist and it was a joint referral [by the parents] … it is disconcerting that on the first day this court is in a position where time has been allocated, it is up to the court that the evidence should be read.
“This court is the trier of fact and this court has to decide on credibility and the weight [to be given to the evidence]. There is a situation that this court is not bound by the expert opinion. It is also the case the experts can assist the court … all experts have to be subjected to cross examination.
The judge adjourned the objection until after the video evidence of F. The case resumed with other evidence.
The second psychologist
Another psychologist was engaged by the CFA to carry out a cognitive assessment of the parents. The psychologist attended the family home to conduct an interview with the family. She arrived early at the home and the front door was opened by B, of primary school age. The psychologist said there were no adults inside the house. The child’s older brother was upstairs in bed. The child’s parents then arrived at the house. The psychologist said the house was dirty and the stairs and carpet were spattered with paint stains. The front room was tidy but had been cleaned by an unclean cloth. The kitchen was disorganised and unpainted. The bathroom was dirty, there were clothes and dishes strewn over the house and the front garden was littered.
The parents were interviewed independently. The psychologist outlined to the father the reason she was there but he had no understanding as to why the assessment had been requested. He presented as anxious during the assessment and had difficulty with eye contact.
The father told the psychologist he was working and enjoyed his work. The father took pride in his financial contribution to the household. She described him as well presented as his shoes were shiny and his trousers were neat. The psychologist said: “He [the father] was non confrontative. He stated he was not comfortable with people and he had to take time off work to do the assessment.”
The father had learning issues at school but had not been diagnosed. He liked his own company and liked things to be in order. He said he had friends at school but none now. The father said he did not feel isolated. He was distracted by noise and annoyed by labels on his jumper. The psychologist noticed at one stage he called to his wife to keep the children under control.
The house became quiet after the children were asked to go to their rooms and that was unusual. The psychologist said: “There was no warmth in his interaction with the children.” He spoke about their eldest son who was not working and he found that frustrating. The psychologist said the father’s information-gathering abilities fell within the average range, his processing speed and his working memory were low. The father had the capacity to learn. He performed well in the information test. The psychologist said his inability to socially engage, “his communication techniques …. a need for order … all of those point to traits that correlate with Asperger’s syndrome.”
The mother told the psychologist she had attended a school for people with intellectual disabilities. The psychologist described the mother as “much more social.” The mother went alone to the pub but sometimes was accompanied by one of her older daughters. The mother was dependent on the father and perhaps felt controlled by him.
The psychologist was concerned as the mother was a vulnerable person. The psychologist said the mother’s verbal reasoning scores were reduced but her scores for her perceptional reasoning were marginally higher. The mother’s score in arithmetic was very low indicating she had a learning disability.
The mother would face difficulties managing the house and the children. Her ability to read environmental cues, to plan and to make decisions was compromised as was her verbal comprehension. The psychologist said she was struck by the mother’s reliance on her eldest son to carry out babysitting duties.
The creche manager said all three of the children had been through the creche and described all of the children as “gorgeous.” All of the children were lovely and supportive of each other. The creche manager said the ongoing issues in respect of the children were neglect and chronic headlice.
A came to the creche as a pre-schooler and was receiving supports from a speech and language therapist. There were concerns about his appearance and cleanliness.
B was a beautiful girl who had a speech delay. There were concerns about her appearance and delayed toilet training. The crèche manager recalled an event in Dublin at which the children from the creche were going to be filmed. She had brought a spare set of clothes for B as her own clothes were not suitable, were dirty and did not fit.
The creche manager said: “I did not [bring] a spare outfit of clothing for normal instances. We register the good days and bad days. We do not keep notebooks on everyone. Those note books are only in place when there are concerns.”
She added: “We spoke to the mother about the clothes. The mother was always willing to meet and the relationship [between the creche manager and the mother] was good.”
Headlice was a recurring issue and the creche manager spoke to the mother. The mother tried to treat the headlice but they did not go away. The mother would treat the head lice but did not get rid of the eggs. The creche manager said: “We treated [B] in the creche to comb her hair and get rid of the eggs.”
C started at the creche when he was 18 months old. The creche manager said the child had a physical disability as he did not crawl or bum shuffle. He could not stand up and the staff at the crèche presumed there was something physically wrong with him. C did not have enough time and space to play at home. There was severe overcrowding in the house.
Over the course of a few months in the creche C began to crawl and climb. The creche manager said: “When he finished with us, he could do everything. There was something wrong. He was only with us [for] four hours a day and [he] made a huge developmental leap.” His behaviour improved too. His mother spoke to him about his behaviour and he listened to her.
Counsel for the CFA asked: “How do the children compare [to other children] generally?”
She replied: “The children have all left us and they will stay in my mind. When they went into care you saw the difference. [C] joined us and gained his motor skills and then when he went into care you saw a different child. There was extreme neglect. These children stood out as being in a worse situation than others.”
Toilet training impacted on all three children. The creche manager said: “We spoke to the parents about it but all of the children were in nappies until they were a lot older. [C] was toilet trained when in care. He used to cry when getting his nappy changed. They were beautiful children who were kind and polite and that came from the parents.”
The creche manager said the children were loved children and they love each other. She said: “Caring is different, you can love someone but not have the skills to care [for them]. The mother tried her best but it was not good enough, it was noticeable neglect. There was never a time when there was not something going on. It was improving but never going above the threshold of not being concerned.”
Counsel for the mother asked: “You are aware of the concerns for the cognitive abilities [of the mother]?”
The creche manager: “There was a limit as to what you could say to the mother. The children had cuts [due to headlice] on their head. If this parent is not able then you help them. The mother engaged with the family support worker.”
Counsel for the father said there were lots of positives in relation to case conferences. B had been coming on extremely well with her speech and language and social skills. In January 2017 it was reported that C was doing well and almost walking. The creche manager said the parents did try to improve the situation for the children. There were positives but these were based on a much lower threshold.
Family support worker
The family support worker was engaged with the family from 2012 until 2016. She was asked to help the family to clean the house, sort the clothing, change the bedding, sweep the floor and with headlice prevention. The family support worker had a good relationship with the whole family but interacted mostly with the mother.
The house was in a bad condition and financial assistance was provided to the family to purchase new furniture but within a period of six months the chairs and wardrobes fell apart. The family support worker visited once a week and as time progressed, her visits increased to four times a week. She set tasks for the family to complete around the house but the tasks were not completed on an ongoing basis. The mother sometimes did what she was supposed to do.
The house was overwhelmed with laundry and there was no improvement over the course of four years. There was damp laundry on the floor causing silver fish. The family support worker said she took annual leave and when she came back the house had fallen into disarray and the laundry had piled up.
The mother told the family support worker that she did not need the support. The family support worker’s involvement with the family ended in 2016 as the conditions in the house were not changing.
The parents showed no insight into the problems in the home. She said: “That was the norm for them and they did not see anything wrong with the way they were living.” There was no capacity on behalf of the parents to sustain an improvement.
Former Social Worker
The former social worker was allocated following the birth of B in 2011 and there were 10 people living in the house at the time. He visited the house every three weeks as it caused concern. He said: “We would have put in new carpets but it [the house] was always back at base level being dirty. It was never sustained and that led us to go for a child protection case conference.” The children would have been involved in trying to improve things in the house but the family support worker did the most of work.
F (not the subject of the proceedings) was a vulnerable girl with global developmental delay. She presented as slim, slight and withdrawn. There was a worry about her ability to socialise in the community. There were concerns about her attendance at school. A bus was organised to take her to school but it was not always followed through. The parents often described the bus in derogatory manner. The social worker said: “They [the family] stood out with respect to the condition of the home and how bad it was.”
Counsel for the mother asked: “You were involved for four years and throughout that time you never thought a care order was needed?”
He replied: “It was getting to that point when we had the case conference.” Counsel for the mother said: “The first child protection conference took place on 25th March 2015 and [the next] on 3rd September 2015 and there were significant improvements [in the house]?”
He said: “No. [There were] improvements but not significant [improvements]. The recommendation was that they remain on the child protection register.”
The children were at ongoing significant risk of neglect and the parents demonstrated a lack of parenting skills. He said the parents verbalised their desire for change but were apathetic. The females in the family were more likely to experience neglect than their brothers. The boys presented as better dressed and the girls were more dishevelled. Their clothes were dirty.
Supports were put in place to enable the children to stay at home and there was only one period of time during which the mother did not want to engage with the supports. The mother suffered post-natal depression following the birth of C. The social worker said C had a flat patch on the back of his head from having spent too much time in a bouncer and not been getting enough tummy time.
An older brother moved his girlfriend into the home and she stayed in the bedroom with the girls. It took a number of weeks for that girl to move out. He was smoking cannabis in his room and the mother did not know he was doing it upstairs. He also had a drug debt and owed a large amount of money. In 2014 two men called to the house and threatened the family. The family had to leave as a consequence.
An older sister played a positive role in ways to keep the house clean and engaged with the tasks. There was a huge amount of supports going into the family.” Over the course of four years the social worker did not see any ability of the parents to change.
When the case resumed, the CFA barrister said that he has been provided with an audio recording of a conversation between the parents and the daughter, F. This had been obtained from the father’s solicitor. The barrister said that it should be played to the girl before the video interview.
The social worker continued with her evidence, saying she had been allocated to the family in 2016, and there were ongoing concerns. There had been a supervision order in 1996. There was chronic and ongoing neglect, as well as concern about child sexual abuse relating to the father, and about the mother’s capacity to protect the children. The concerns went back 20 years. Significant support was given to the family, but the concerns persisted. The supports included speech and language therapy and physiotherapy. There was some improvement, but it was not sustained.
There was no proof that the father had abused F, but in 2018 the social worker said she had been told she had made disclosures and she met her. The girl was very nervous, quiet and shy, very vulnerable. At the time she was living in homeless accommodation and was self-harming. She said her father had performed sexual acts on her from the age of 13 to 18, while on drives in the car. He would take her in the car on the pretext of going to the shops. She said he told her to keep her head down so that people would not see her. When the other children were in bed he touched her. He told her not to tell anyone and that he wanted to leave his wife and live with her and the other children.
Child protection steps were taken and a safety plan put in place.
F had a diagnosis of a mild general learning disability, the social worker said.
Referring to the children who were the subject of the application, she said they had problems with head lice and were dirty. With interventions, the CFA saw short-term improvements, but they were never long-term. The house was dirty, dishes and pans were unwashed for days. There was an issue of capacity and ability to improve on the part of the parents.
Asked if, now that there were only three children in the house, it would be easier to keep the house in order, the social worker said: “No.”
Describing the family dynamic, she said the father was quite autocratic, patriarchal and domineering over the mother. Cognitive assessments were carried out on both parents, both of whom had long-standing learning difficulties, and the mother had a diagnosis of a mild learning difficulty.
Asked how this impacted on the mother, she said she did not appear to have the ability to understand what was needed to maintain the household. The assessment said the mother did not have the capacity to care for the children alone, and as a couple they were emotionally destructive.
Over 60 photographs produced in court showed a very unhygienic bathroom, cluttered bedrooms with dirty bedlinen, dirty laundry piled up and very little educational material. It was decided to end family support because of the expert reports that were received. Reports from the children when they entered care (on interim care orders) in 2018 fed into the picture of neglect.
Child C, who had just reached primary school age, had behavioural issues when he came into care, including aggression. All three had educational difficulties, but had improved somewhat since coming into care. They had experienced development delay. Child B had come a long way in terms of interacting with others and her sociability, though she had some speech and language difficulties. She said that B’s foster carer had reported some sexualised behaviour, but the father’s barrister objected that this was hearsay.
Access was going quite well overall, the social worker said. The social worker brought games to the access, and the mother was very happy to see the children.
Asked if the court found there had been child sexual abuse, would the mother be a protective factor, the social worker said she would not.
Asked why, given the evidence of chronic neglect, care orders had not been sought sooner, the social worker said that the CFA had always tried to honour the family and work with them, but unfortunately had not been able to bring about change. She was recommending full care orders until 18 for these three youngest children. The family had every support possible for over two decades, it was an issue of parenting capacity. A long-term order was necessary to secure the welfare of the children.
Child Sex Abuse specialist
A child sex abuse specialist told the court that he was a social worker by profession and set out his qualifications. He said he had experience working in the probation service and had a specialisation in allegations of child sexual abuse and domestic violence cases and had experience in carrying out risk assessments both in custody and in the community.
The witness had prepared two reports for the purpose of the proceedings. The reports were based on interviews and consultations carried out with both parents and on the Child and Family Agency (CFA) file.
Judge: “Is there a note of the interviews and what was discussed?”
Witness: “Yes judge.”
The witness said that three reasons were provided for the referral:
- Whether the father posed a risk of sexual harm to his children or any other child he came into contact with;
- Whether the mother could supervise;
- To identify any actions to be taken to reduce any risk.
Describing his interaction with the father, the witness said: “At the beginning he was more circumspect but as the interview progressed he became more active and involved.”
He said that the mother was willing and motivated and that she engaged very well and was clear about the purpose of the interview.
Witness: “She provided a comprehensive response to the questions as she could. The chronology at times was somewhat confused and she tended to drift from the original questions.”
He set out the father’s psycho-social history and the father’s background and his upbringing. He said that the father came from a traditional patriarchal home and that he had a difficult relationship with his own father.
Witness: “He had a more positive relationship with his elder sister but had a limited relationship with his brothers and described one as lazy and the other as a drug addict.”
He said that the father had described his experiences during his developmental years and had described his primary school years as “fine and nothing significant”. The father had said that his experience in secondary school was more challenging, it was a difficult period of time where he was a victim of bullying, aggression and fighting. The father was expelled from school during his teenage years and therefore had no qualifications.
The witness said that he looked at the father’s financial position and said that he was able to preserve some money and was in control of all the finances in the home except the child benefit.
The specialist said that early in the couple’s relationship the father had a sense of inadequacy as a husband and the stresses and challenges contributed to an assault on the older son over 30 years ago, which resulted in a self-referral to the social work department.
The father had considered that the social work department involvement with the family after the assault was because of the condition of the home. The father had said that the presentation of the home was a source of conflict in the relationship.
Witness: “He did not involve himself in the internal upkeep of the home primarily because of his sexist and patriarchal ideologies influenced by his own upbringing.” He said that the father did acknowledge there were issues with the presentation of the home and that they needed to address them.
He added that he had looked at the father’s lifestyle and assessed how it had met his needs. The father had referred to a very solitary and isolated day-to-day lifestyle and he did not have a large group of friends or social network. The father had denied using alcohol or drugs. The father had told the witness in detail about his son’s misuse of drugs and about the impact it had on them as a family.
The father had said that he had a “good bond with the older daughter”. He referred to the daughter who had made the allegation of sexual abuse “as a psycho and demanding all the time”.
The specialist said that the father was in charge and held the parental authority in the home: “… very much a ‘wait until your daddy gets home’ approach of the mother in the home.”
The CFA barrister asked the witness what he had learned about the sexual relationship history of the father. He said that the father had acknowledged a standard sexual education history and did not recall his parents speaking directly to him about sex. There was nothing outstanding in the father’s account. The father’s first sexual account was at the age of 15 with a female he had just met and his next serious relationship was with his future wife at the age of 21.
The witness said that the father had spoken comprehensively about the anxieties he had about his body and how it had impacted on his self-esteem. Out of a scale of 5 the father had placed his satisfaction with his relationship with the mother at 1 in the early years as he was “significantly dissatisfied”.
The father had acknowledged a historic allegation of rape by a friend of his wife that he had denied, at a time when the mother was in hospital after the birth of one of the children.
The witness said that the father had suggested that their relationship had improved as they became more open with each other and they talked a lot more. The witness told the court that there was nothing atypical in the father’s sexual practices. A description of their relationship of marriage was given to the court and the witness said it could be described as a “jealous paranoia” as the mother had insecurities and suspicions: “There was an unhealthy dynamic in relation to each other’s commitment in the marriage.”
The barrister for the CFA asked the witness about his assessment of the current allegations of sexual abuse against the father. He said that he had put the allegations to the father and he had denied them.
Witness: “Fundamentally he didn’t elaborate in any great detail other than that he was shocked and angry and said that they were vindictive allegations as a consequence of an argument when he told her to leave the house and [the allegations] were her response.”
The specialist said that the interview with the mother was a similar process. He said that he was aware from cognitive assessments that the mother had been diagnosed with a mild disability in her developmental years and it had potentially contributed to her removal from a mainstream primary school to what the mother had described as “some sort of boarding school”. The specialist understood it to be a school for children with intellectual disabilities. The mother had described to the witness that she had been brought to the school and left there with no understanding as to why she was there and was only intermittently at home at Easter and Christmas and she recalled that her parents had not visited her.
Witness: “She felt it had significantly impacted on her own self-confidence and self-worth.”
The witness said that the mother had returned home at the age of 18 and she had described trying to settle back in. She had told him that her brother had secured her a job in a café. Witness: “She said she really hasn’t been employed in any other capacity since the age of 18.”
The mother had described how she had met the father when she was 21, she got pregnant with the eldest child and following his birth they got married.
The witness had asked the mother questions about the couple’s sex life. “In her presentation there was quite a bit of anxiety with her relationship and marriage.” He said that nothing the mother had described suggested atypical or diverse sexual practices.
The mother told the witness that she had been aware of the rape allegation against the father made by a friend of hers from school when she was in hospital after giving birth to her third son. The specialist said that the mother did not accept the allegation and as a consequence she ended the relationship with the friend.
The witness told the court that he had considered her parental capacity and had tried to engage her understanding of the concerns of the CFA.
“She felt that when the kids were younger that she was more in control and felt that she had the children in a routine. She felt that she was very much attuned to both the physical and emotional needs of her three younger children. She spoke about the kids going to school and their developmental milestones.”
He said that the mother had referred to some of the issues and stress with the involvement of the social work department.
Witness: “She found it increasingly difficult. She described herself as lonely and isolated. She referred to spending Friday nights in a bar on the advice of family support workers. She had made friends and had valued the evenings and felt more integrated in the community. There is no evidence to suggest any substance problem. Her husband gave her €20 for that evening and it was something she was keen on pursuing.”
He had discussed financial autonomy with the mother and she had said that her husband had held the majority of the money. The mother directly received the child benefit every month and in respect of the other finances she said that she had no idea what was coming into or going out of the house.
Referring to the allegations from the daughter of sexual abuse by the father, the specialist said: “She referred to her husband coming in and saying ‘oh God, do you know what she has done’. She said that she couldn’t believe it and he was ‘not that kind of person’. She said that she has had no contact with her daughter since the allegations were made. She said the allegations were triggered by an argument with [the girl’s] boyfriend.”
Judge: “When were the allegations made?
CFA barrister: “May 2018. The mother rejects the allegations in their entirety.”
The mother had described her daughter as “vulnerable”. The mother had told the witness that the daughter had alleged that she had been sent indecent images by the older sister’s former boyfriend. The mother had said that she did not report the indecent images to the social workers or to the Gardaí and her husband had been told by the youth worker that this had been disclosed. The mother had told the witness that the older sister had ended her relationship with the boyfriend on becoming aware of the photos.
The witness told the court that he had put to the mother the allegations that the father was physically violent but that this was denied by the mother. The safety plan [involving the father leaving the home] was also discussed with the mother and she had suggested that the plan itself was impacting on her younger children and had referred to them as “going mad”.
The barrister for the CFA told the court that a safety plan had been agreed after the allegations were made but that it had broken down which led to the issuing of proceedings.
The specialist told the court that he had understood that there had been an agreement with the CFA and the family but that the father had returned home in breach of the agreement. He said that the mother’s view was that the father did not pose any sexual risk to the children.
He then told the court about his interviews with the daughter who had made the allegations of sexual abuse. She had alleged that her father was controlling and abusive and that she had wanted the younger siblings taken out of house and brought to somewhere safe.
Witness: “She did not want them growing up with the experience she had.”
The daughter had referred to incidents of domestic abuse during the interview and had referred to the mother siding with her father even if she was being physically abused.
Witness: “She suggested that the mother was afraid of the father and that fear had inhibited her willingness to stick up for the children.”
In respect of the allegations the witness said that she had told him that the abuse had occurred in a bedroom and that the father had made sure that nobody was there to hear it.
Witness: “She referred to a chain on the door. She referred to the last occasion when it happened … her father was saying that he was going to hand himself in. She referred to abuse at between ages 13 and 18 and primarily when her mother was out. He had a free chance to do it. …. The father had directed her to call him [first name] out of the house but Dad in the house.
“She said he would have done everything. On one occasion she said he tried to do intercourse but because she said it was hurting or that someone was coming, she would get away. She said he made her masturbate him. She said her sister had also been sexually abused but that the sister said she didn’t remember if it had occurred. She said that he was physically violent to the three younger children.”
The witness told the court that the next part of his assessment was the assessment of risk.
Witness: “There are no tools that have been devised that show any empirical validity to predict the onset of sexual offending or to determine whether or not someone is guilty or innocent of allegations being made against them. It is permissible to use literature and evidence around sexual abuse to identify factors that are prevalent in sexual abuse. We use factors associated with people who have convictions persisting beyond initial convictions … to identify the presence or otherwise of factors associated with recidivism.
“To reiterate, without prejudice to the fact that the presence of factors has any weight on whether or not an allegation is true … It is solely to say that the presence of characteristics, behaviours or sexual interest may be something the CFA should take into account in any safety planning around children that are potentially at risk. It is to assist in engaging safeguards and supervising children.”
Judge: “So it is very inconclusive?”
Witness: “Solely for structuring professional judgment.”
Judge: “What does that mean?”
Witness: “The literature outlines things such as sexual preferences or psychological outlooks in individuals who have convictions. It is used to assist an organisation or agency as to what are issues of concern. For example, if there is alcohol or substance misuse it would have to be taken into account in supervision.”
The witness told the court that negative influences were well connected with general studies and were well established in the sexual abuse field as a predictor or indicator. The witness gave the example that if peers are anti-social it can be an aggravating factor of further recidivism occurring. If peers are more social it might indicate compliance with a safety plan and can mitigate against some concerns, “who is around an individual who have influence and whether they are anti-social or pro-social.”
The witness told the court that the father had reported that he had no real influence or close friends that could be described as an influence on his decision making. The father had reported a quite conflicted relationship with his parents and no real relationship with his brother. The father referred to a relationship with his sister but he had not displayed that he had sought her guidance in respect to decision-making.
Witness: “For example, the decision to return back to the home in breach of the CFA agreement didn’t appear to have been discussed with any individuals. It was made by his own volition.”
CFA barrister: “How does it affect your professional view?”
Witness: “It goes to personality, he is quite an isolated individual. He didn’t seem to debate things out with other people to bring [them] to a conclusion.”
CFA barrister: “Does that affect your view for risk factors?”
Witness: “Not really. If not consulting with other people, it is his own solution.”
The specialist said that one of the factors very well established with recidivism and individuals engaging with sexual abuse of children is whether an individual has a sexual preference for children. He added that whether the individual is able to initiate and have a cohabiting relationship for two years or more is quite a specific indicator, if they are not able to maintain that. That factor did not apply in the father’s case as he had a long-standing marriage with the mother.
He said the second part of the analysis is whether the relationship is conflicted or whether the individual with whom the assessed person has a relationship is unable to leave the relationship because of a risk to her children. He said that there was evidence of an inequitable and unequal marriage and by looking at the mother’s presentation she had a degree of vulnerability and a lack of financial independence.
Witness: “Emotional connection to children is another factor that looks at emotional congress or identification an individual may have towards a child, whether the individual meets his needs through children. It emerges in various ways, for example the perpetrator may view a child in a particular light. He may view [the relationship] as almost being in love with each other. He may attribute adult-like qualities with a child, such as maturity … an individual aging themselves down to a child’s chronological age to relate better to them. It is about capacity to maintain a relationship … a greater level of confidence or self-worth when in the company of children.”
He went on to tell the court that there was no evidence to suggest that the father viewed children generally as friends or that he felt more competent in the company of children than adults. “What the daughter is alleging, he could potentially have aged her up as a surrogate relationship, but I couldn’t make that call.”
He said that if an individual holds negative hostile views about women that these values or beliefs, stereotypical attitudes of women as “only good for one thing” can impact on their capacity to initiate and form relationships.
He said that the father had acknowledged that he was sexist and that it was something he needed to do something about. The father had described his feelings of inadequacy and lack of confidence in relationships with females. The father had said that his sexist attitudes towards women, such as their only job was for cleaning the house, was from growing up in a patriarchal home. He said that his own mother had held the view that his wife should be doing the cleaning and not him.
The father viewed himself as head of the household and superior and deserving of respect. He had valued himself as the worker and the earner and had assumed responsibility for the finances.
He said that it is common amongst people who sexually abuse that they feel rejected or emotional lonely or isolated, such as lacking friends or a lack of any really intimate relationships. He said that the father had reported an absence of any network but said that he was ultimately happy in himself and liked his own company.
Witness: “That sense of ultimate inadequacy and almost incompetence inhibited his ability to develop and maintain relationships. “
CFA barrister: “How does that impact your view on the issue of risk?
Witness: “It is not really about risk but an identification of some of these issues. There are indicators [like] a lack of concern for others, individuals who present with almost sadistic traits that show not much concern for others, primarily interested in their own needs and how their needs are going to be met. ‘What is relationship going to do for me?’ seems to be the primarily outlook.”
Witness: “There was no sense of acknowledgment of the vulnerability of the children. He referred to his daughter who was ‘a psycho and demanding all of the time’. I sensed not much concern for the children.”
He told the court that the father did not drink and that there was no evidence of significant gambling or convictions. Impulsivity was linked to recidivism generally but that it was not present in the father.
He had considered the father’s capacity to consider day to day issues and think through potential options even to revert to another individual for guidance. He said that the father ran into difficulties with the involvement of the social work department and was not able to identify what he could do to remove the problem from his life.
The witness told the court of other factors that are linked to recidivism such as a heightened preoccupation with sex or sexual compulsion or whether the person holds a sexual interest outside the norm but that this was difficult to measure as it required a lot of transparency on the part of the individual or oversight.
He outlined the characteristics of paedophilia and child molesting, which are not the same. “Questions to be considered are whether the individual presents with a sexual preference towards children and paedophilic, or whether sexual interest is acted upon.”
The specialist said that the father dismissed the daughter’s allegations and stated that he was not in a position to make a call either way. He said that he looked at the potential presence of sexual behaviours that may cause concern in a safety plan going forward.
He described some of the potential pathways to inter-familial abuse such as an intimacy deficit where an individual’s sexual and emotional needs were not being met in the adult relationship and who may target and abuse a child to have their sexual needs met. They may have problems in their relationship or create problems to justify their decision making.
Witness: “There is unlikely to be any safeguard amongst children or challenges to the behaviour in a home which allows a persistent pattern of abuse. Normally the abuse only comes to an end when the child discloses or prevents the abuse from occurring or threats to disclose. It is unlikely to stop by the perpetrator [stopping] themselves.”
He said that theoretically it could be asserted that the allegations sat within that theoretical context but that he could not make that judgment.
The witness described to the court the term ‘disguised engagement’ and said it is a factor in determining whether the individual was cooperative with the safeguarding agencies. He described it as collaborative transparent engagement where the individual may not accept the concerns and denies the risk to any child but is prepared to work with agencies to ensure that the principle around the protection of a child is consistently applied.
Witness: “Some individuals push back. Some individuals present with disguised compliance and present a front that they were working with you but evidence is uncovered that they weren’t, usually on the back end of an identified breach or reports from sources that they were only playing a game.
“With regard to the father he reported that he had a challenging relationship with social workers. He acknowledged he didn’t get on with them but let them have conferences and will sit back and look at them. Equally when we look at the history of involvement, intermittently we can see improvements but as social workers moved away the presentation has quickly deteriorated. There is no evidence of cooperation to address the fundamental concerns of the agency.”
The witness said that overall he found seven factors of relevance to the father. This included an assessment of whether the mother had the knowledge and capacity to supervise the concerns the CFA had in respect of the younger children.
He explained that there was a similar framework for assessment of a person in charge to supervise children. The first item was the individual’s history of adversity in their background and upbringing to understand how those experiences have influenced their capacity to supervise those concerns.
“With the mother … a lot of information in relation to her early years [which] have had an impact on her self-identity and self-confidence and self-worth and how she conducts herself in relationships. Her early experience of being brought to special needs school aged nine with no understanding of why she was being transferred there. She felt her own parents were getting rid of her. [This was] quite a seminal event in her childhood that impacted on her own self-worth, advocacy and confidence.
“[This had] a significant and serious impact on her sense of secure attachment. Attachments and experiences in childhood influence how we relate to other people and our perception of other people. She felt somewhat abandoned and at 18 she returned home and then met the father and since then they have been companions.”
CFA barrister: “Would it impact on her capacity to protect?”
He replied that individuals with dependency traits are less likely to be able to protect. He added that the mother was challenged by acting as a parent, protector and supervisor and that she was struggling in that role and there were specific challenges about meeting the children’s particular needs.
The witness said that the mother’s dependency on the father overlapped with her limitations and exposed the children to neglect, or if they were subject to sexual abuse she would struggle to supervise the father in relation to it.
The witness said that it was necessary to assess how attuned or responsible the primary carer was to the needs of children at risk, whether they were picking up on mental presentation and behavioural presentations and how they responded to such presentations. The mother previously thought that she was “in tune and responsive” to all her children’s needs but the social work files reflected ambivalence and reluctance to consistently respond to them.
Witness: “If you can’t meet the basic needs of children how do you pick up on the subtle needs such as sexual abuse, and this would influence on the capacity to protect.”
The specialist also referred to other issues, including whether the children self-regulated, whether they used substances to cope with stress or engaged with their problems. The witness said that over the previous 20 years there were repetitive occasions where the mother was not able to cope and was overwhelmed in raising six children. There was no evidence that the mother was calling on drugs and substances but she was quite isolated with no relationships with her parents or friends to call upon and what had emerged was an over-dependency on the father.
Referring to whether the parents were willing to work with the CFA on the issue of alleged abuse, he said: “To date it hasn’t happened as far as I am aware. After the assessment the father returned to the family home in breach of the agreement. That was not challenged by the mother. She has not accepted that there is a concern and compromises any safety plan. There are also vulnerability issues there.”
CFA barrister: “Does the mother have capacity?”
Witness: “From my assessment, no. The mother drew upon the evidence of her daughter to dismiss allegations as opposed to consider potential veracity of allegations…. Any work with mum is understanding why maybe the child has not come forward sooner or didn’t present in a particular way.”
Judge: “Is all of this on the premise of accepting the allegations are true?”
Witness: “No, it is accepting that there is a concern by the Agency … to enable families to live together and for the risk or concern to be appropriately managed.”
He said that he looked at whether the individual was willing to collaborate with the Agency even if they did not accept the allegations, were they willing to comply especially when the assessment was ongoing.
Witness: “She fully cooperated with me. She did not cooperate with the CFA as she allowed the father to return back to the home in contravention of the safety plan agreement before I had completed assessment. The breakdown of the safety plan led to the application of the care order.”
Describing his conclusions and recommendations, the specialist said the first item was “whether the father currently poses risk of sexual harm to children or any other child he comes into contact with?
“What is assessed is that he presents in a number of factors that could be referred to as problematic in psychological clusters. Do they have the ability to withstand any emerging attraction to a potential victim? Individuals with more problematic clusters hold less resilience to that…”
He said that the father was self-centred and ego-centric of his role in the family unit where his needs were primary and the children’s needs were secondary. The witness said that theoretically it could be argued that the narrative of the allegations fell within that particular pathway, but he could not say with any evidence to bring him to that conclusion on the balance of probability and there was nothing to suggest that the father had a preference for pre-pubescent children.
Judge: “So you are satisfied that he does not possess a preference for pre-pubescent children, on the balance of probabilities?”
The witness said that there were sufficient concerns that warranted a proportionate level of caution regarding his access to children in any domestic setting.
In respect of the capacity of the mother to supervise any child from the father, the witness told the court that he had assessed the mother to be an extremely vulnerable person that had struggled to meet the basic needs of the children, as their presentation was an indication of neglect. The mother had no authority in the home and was very dependent on the father and was prepared to tolerate violence. The mother did not accept any risk of sexual harm and was not willing to apply the safety plan agreed with her.
He pointed out that the mother had a delayed response of reporting the alleged receipt of indecent images to the authorities and had not advised the social work team that her daughter had received the photos from her older sister’s boyfriend. The barrister for the mother interjected and told the court that it was not accepted that the mother knew about the photographs.
Witness: “I spoke to the mother during the interview. She said that the child disclosed receipt of the images and she thought that she had a problem with the boyfriend and was making this up. She said she didn’t advise the social worker or police. She said that when disclosure came around her other daughter ended the relationship.”
The judge said that she was not clear on the timelines at all in order to assess whether there was a delayed response.
CFA barrister: “If the court has concern about the father and he presents a risk to the children do you think the mother is in a position to protect or safeguard the children?”
Witness: “On the basis of this assessment and my last contact with her, No.”
Judge: “I understand what you have done I think and you have presented it very methodically. In your recommendation you were very clear after an inconclusive finding of the father. You are more conclusive of [the mother].”
The witness said that his recommendations in respect of the three younger children was an attempt to address some of the concerns. The witness recommended an increase in the younger children’s understanding of sexual abuse in a familial setting, to enable the children to know right and wrong behaviour. The witness suggested that they should be made aware of the allegations made by the older sister in a developmentally appropriate way. There should be a transparency about a safety plan and breaches of those conditions in the safety plan had to be reported and encouragement to report breaches had to be enforced by the mother.
The witness said that as there was a breach of the agreement the family was never given an opportunity to apply the recommendations set out in the report.
The judge asked why it was so fundamental that the father leave the house to allow the work to be carried out. The witness said that given the relationship dynamic and dependency and reflecting back on the history of non-compliance that there needed to be evidence of learning embedded with the mother.
Judge: “Are you in a position to say how long the embedding of learning would take?”
Witness: “I can’t say.”
Judge: “You are saying it is fundamental that he has to move out?”
Social work intermediary
The next witness said she was a social work intermediary. She gave evidence that because of the allegations made by the daughter the CFA were obliged to carry out an investigation to determine if there were child welfare concerns. She outlined the investigative process to the court stating that the CFA had initially been contacted by a youth service worker.
She told the court the child was interviewed for approximately 1.5 hours and that she had been interviewed at the Garda station earlier that same day. She said the child was tired, shy and reluctant to engage during the interview. The court heard that the daughter’s boyfriend was there for approximately half of the interview and that the CFA notified her father of the allegations the same day.
The social worker intermediary told the court that the CFA interviewed the daughter several more times between May and August 2019. In addition, the CFA also completed a school visit, interviewed the father, the mother and the daughter’s boyfriend. She told the court that the father was angry, emotional, upset and confused, but he cooperated and he agreed with the proposed safety plan.
The court heard that the girl said in her interviews that she was abused at home when her mother was out and at several locations outside of the home. The barrister for the mother questioned the witness on whether she had expertise in assessing credibility and whether she had regard to the 2014 Policy and Procedures for Responding to Allegations of Abuse and Neglect. She questioned her on the policy of having a third party in attendance at a fact-finding interview. The social work intermediary gave evidence that the initial allegation was made by the girl’s boyfriend and that he had attended several interviews with the girl.
Barrister for the father: “Can you see the issue with having a third party in attendance at a fact- finding interview?”
The father’s barrister questioned the witness on whether it was good practice to have a third-party present and asked whether she agreed that there is an increased risk of prompting a complainant when the third party is the one who first made the allegation. She also asked whether the boyfriend was specifically told that he could not contribute. Both the barrister for the father and the barrister for the mother questioned her on whether several interviews were best practice and whether there were significant risks with over-interviewing.
The social worker intermediary responded that the girl’s boyfriend was present at several interviews, but that he was not allowed to contribute and that the questions were directed to the girl. The court heard that the girl was a vulnerable person therefore the CFA wanted to get the information as quickly as possible especially because there were immediate concerns for the younger children that were still living in the home.
The GAL gave evidence it was not in the younger children’s interest to give oral evidence in court.
The barrister for the mother told the court heard that the psychologists refused to release the psychometric tests to the lawyers. The barrister for the mother asked the court to order the release of the reports. The judge said she would make an order in very clear terms specifying the tests sought and order they not be copied or distributed in any manner and returned to the psychologists at the end of the hearing.
Evidence of psychologist
A CFA psychologist was called to give evidence of a parenting capacity assessment. The legal representatives for the parents raised concerns in respect of the admissibility of the evidence due to the manner in which the parenting capacity assessments were carried out and the role of the psychologist’s assistant in carrying out the assessment. They said the report contained hearsay evidence and the opinion of the psychologist was based on facts that she was unable to prove as she was not present when questionnaires were filled out by the parents or at one of the observational assessments of an access visit.
The barrister for the CFA told the court that in light of the concerns raised he proposed to call the psychologist to give evidence on a preliminary point to establish who carried out each part of the testing and assessment and to identify the parts carried out by the assistant.
Judge: “To give evidence about the process?”
CFA barrister: “Then she can be cross-examined on the process.”
Barrister for mother: “I don’t know what evidence she is going to give about the process. From the report I can identify passages that are inadmissible, that are hearsay. I have a difficulty with the evidence.”
Judge: “I won’t hear anything about evidence but about the process… at the end of the day I decide what is admissible.”
Barrister for the GAL: “What is admissible and inadmissible depends on what she did and didn’t do.”
The barrister for the CFA told the witness that he would deal with the preliminary issues first of all and he asked the witness to give evidence purely about the process she had adopted in preparing the report. The CFA barrister asked the witness not to give any evidence in respect of her psychological views on the parents at that stage.
The terms of reference for the parental capacity assessment had been agreed and were set out in an instructing letter from the CFA to the psychologist which set out the specific factors the CFA wanted the psychologist to consider. The documentation provided to the psychologist was set out in the letter.
Asked to describe how she prepared for the case, the psychologist said: “I would usually have the background information. Sometimes I read it and sometimes I don’t. At this point I didn’t read it.”
She said she had a person working with her at the time of this assessment who had carried out a number of parenting assessments with her, and it was decided that this person would start the process. The witness said that the assistant had been provided with a structured list of tools to take with her and was provided with questions she had to ask the parents.
Psychologist: “The consent form would be read to the parents. She would have been asked by me to do the background information and the informed consent form. She was given questionnaires for the parents.”
She told the court that in advance of the assessment contact was made with the parents to set up the meetings and it was agreed how many sessions there would be overall. The witness said that the assessment started out with “basic questionnaires we use for all parents” and because it was a psychological assessment they looked at the mental health and personality of the parents.
CFA barrister: “8th February was the date of the first assessment. Who did that assessment?”
Witness: “My assistant did that assessment.”
CFA barrister: “What was she instructed to do?”
Psychologist: “She was instructed to gather the background information of the parents such as date of birth, address, parents, siblings, early developmental period, their relationship with their mum and dad, whether they worked, who was the disciplinarian at home, their early attachment. There are between 7 and 10 different factors.”
She told the court that at the time of the assessments the assistant’s qualifications were a degree in psychology, a Masters degree in forensic psychology, she was doing a Ph D and was teaching part-time. The barrister for the mother objected to this evidence but the judge said that these were “facts she knows”.
The witness told the court that on 15th February the assistant carried out an observation session which she described as “very structured” and the assistant looked at the strengths and weaknesses in four different areas when observing the parent and child interaction.
CFA barrister: “After those dates how do you become aware of what was done?”
Psychologist: “There would be ongoing meetings. We would discuss our initial views on the parents. She would write the background information for me. She makes sure the questionnaires are all answered and gives them to me.”
CFA barrister: “Who scores those questionnaires?”
Witness: “I do. They are quite simple, usually true or false or a scale of 0-3, ‘some of the time’, ‘most of the time’ or ‘all of the time’ type answers.”
The witness gave evidence that she had attended the assessment on 23rd March and that the parents would have been told in advance that she was coming in that day.
Psychologist: “I was there the whole day. I would usually start at about 10 am and stay until the children were coming in for access. So, for the day or for most of the day.”
She said that at the beginning of the assessment that she would stress her independence to the parents and that they “get their voice heard in the report”. She said that she would spend time going through the narrative so that the parents were aware of what was going into the report and that she needed the dates to be accurate in the report.
CFA barrister: ‘How long did you spend with each parent?”
Psychologist: “I was with Dad first for about an hour. The same with Mum. I said there were other questionnaires I was going to do. As I was doing a parenting capacity assessment I suggested that they both come in and discuss. I would have read all of the social work reports and documentation. On 23rd March I was completely up to date. I knew what their background was and what further information I needed. I went through line for line on the questionnaires and I would pick out certain things, especially to do with functioning or if there was any contradiction in answers.”
CFA barrister: “A section in the report refers to a feedback session, when did that take place?”
Psychologist: “When I mean feedback, I feedback information I have already. It is not always possible to have an outcome. It is my general understanding of the strengths and weaknesses of the parents.”
CFA barrister: “Did you spend the whole day with the parents?”
Psychologist: “I observed access for at least an hour, but I don’t remember for how long.”
The witness set out the assessment method in the report which included a clinical interview with the father and she said that she and the assistant “would have both carried that out”. The witness said that the questionnaire was administered by the assistant which contained four sheets of questions requiring an answer of true or false to each one. The parents would sometimes be left in the office to complete the questionnaire. The witness told the court that it was the “Theodore Millon” questionnaire.
The witness gave evidence that the second questionnaire was also done by the assistant and it was in respect of the parents’ views of the child and their views of themselves as parents. The “trauma symptom inventory” was also administered by the assistant and this looked at trauma symptoms and attachment symptoms but it “doesn’t say where the trauma comes from”.
The “parental alliance measure” was also carried out by the assistant and it looked at the views of one parent of the other parent’s parenting and it was a standard questionnaire.
Psychologist: “The assistant carried them out, but I scored them. I read them. I either put them into a computer or scored them manually. I put them into a statistical analysis folder and see if they are below or above average. I cross reference to the manual and see what it means for that person.”
The witness told the court that on 23rd March she went through the questionnaires with the parents and picked out certain points. The next four questionnaires were carried out and scored by the psychologist herself. The witness said she had observed the parents with the children and the assistant had also observed the parents with the children.
CFA barrister: “Is there anything different in the process from the mother and the father?”
Psychologist: “The psychometrics are slightly different but it was the same process of who carried it out.”
Judge: “Whatever opinion was arrived at as a result of the process, whose opinion was it?”
Psychologist: “Mine. “
The barrister for the father asked the witness about the letter of instruction she received from the CFA to carry out the assessment and whether it was addressed directly to her as an independent psychologist. The witness said that the letter was addressed to her company and was sent by email to the company.
Father’s barrister: “The contents of the letter doesn’t make any reference to a team or being assisted in the assessment?”
Psychologist: “Usually they don’t. When a referral comes in it is up to the professional. When you refer for psychotherapy you don’t dictate what they do.”
Father’s barrister: “You didn’t contact the legal department or any department about someone else working with you?”
Psychologist: “They knew. I don’t have to contact anyone to let them know.”
The witness agreed with the barrister for the father that she was asked by the CFA to repeat the assessment in case an issue arose in respect of the assessments that were carried out by the assistant. The witness told the court that she had offered the father two appointments in the week prior to the start of the court hearing.
Father’s barrister: “He was in agreement to have the tests repeated?”
Psychologist: “He was.”
Father’s barrister: “You said MCMI-IV is the most important one?”
Psychologist: “It is a staple. It is one that everyone does. We don’t really give them importance as such.”
Father’s barrister: “My note is that you said that is the ‘most important’?”
Psychologist: “Just semantics…”
She agreed that the assistant had given the father the questionnaire and that it depended on the individual whether they are left to complete the questionnaire. She said that the assistant “feeds back to me” and that they don’t put in the report every time they discussed the case together. The barrister asked the witness questions about her record keeping of her discussions with the assistant.
Father’s barrister: “Do you have a good note of all of your interactions?”
Psychologist: “I don’t keep notes of my interactions. I have a supervision session once or twice a week and we discuss all ongoing cases. I don’t take notes of interactions other than such and such had supervision.”
Father’s barrister: “If you say ‘supervising assistant’ that is in fact an incorrect classification when there are no notes of interactions with her and how the test had been carried out?”
Psychologist: “I don’t have to take notes on anything.”
Father’s barrister: “I am keen to work out the process of what happened on that day?”
Judge: “I have given so much time already to this.”
The witness was asked whether the parents were given space to themselves to complete the questionnaire and she said that all individuals were different and the questionnaires were straightforward and were simply true or false answers.
Father’s barrister: “At most there is the person who hands out the questionnaire and no other independent person in the room. There was nobody else involved to contaminate the process?”
The barrister told the court that her instructions were that the mother had filled out the sheet with the father as there appeared to be some issue with his eyesight. The barrister said that it was not something she could put to the witness in court as the witness was not present when the assessments were carried out.
Father’s barrister: “When you were not present when the questions were administered and you do not know who was in the room, you cannot stand over the answers accurately?”
Psychologist: “I can if the answers are true.”
Referring to the feedback to the parents regarding their strengths and weaknesses, the barrister for GAL asked: “Did you give to the parents at that point a conclusion that the children should be in care?”
Psychologist: “I didn’t give that feedback. Feedback is not always given as they can find it too upsetting. Usually feedback is given if there are recommendations in place but there were no recommendations here.”
Legal argument ensued about the admissibility of this evidence and the judge commented that it was “quite tragic that all of these issues were not dealt with in advance” when the report had issued in March 2019 and that the issues raised were “left until the last minute”.
The barrister for the father told the court that the CFA made his team aware that it had come to their attention that the tests had been administered by the assistant and it was suggested by the CFA that the tests should be re-administered. The father’s legal representatives replied to the CFA and said that they were not satisfied to repeat the testing with the same psychologist in circumstances where she had already formed a view and the legal representatives had suggested that the father was open to a different psychologist carrying out a new assessment but that the CFA were not satisfied with that suggestion. In those circumstances the CFA relied on the evidence of the witness and her report and the parents argued that the evidence was inadmissible.
The objections were that a large part of the testing carried out was not done by the witness in court but rather the first three or four meetings with the parents were carried out by someone else who was not present in court. It was argued that “the vast majority of the evidence is the definition of hearsay” as it was material communicated by the assistant to the psychologist, and it was material that the witness in court had not seen for herself and of which she had no direct knowledge. It was submitted to the court that it was “not a question of the weight to be given to the evidence but is a question of admissibility”.
The barrister for the father relied on a number of paragraphs of a leading legal text book on the law of evidence and submitted that the “primary facts on which an opinion is based must be proved by admissible evidence”. The barrister said that the facts upon which the witness based her opinion were completely intermingled as it referred to the two observations of access, one which had been observed by the assistant and not the witness herself. The assessment carried out was in breach of the terms of the letter of reference as the parents had consented to that psychologist carrying out the assessment and she had not conducted the assessment herself. The court was asked to make a ruling on the admissibility of the evidence and that all portions ought to be excluded as it fell within the definition of the hearsay rule.
The barrister for the mother adopted the submissions of the barrister for the father, adding it was not relevant whether it was a “standardised test” but it was the fact that the assistant was not in court herself to give evidence which was “the key issue.” The court could not proceed to hear that evidence “on the assumption that it was carried out correctly” and the parents were prejudiced in not being able to ask the assistant herself about the issues they had with how the test was carried out and whether the mother had filled out the questionnaire for the father. The witness in the court could not stand over the testing herself.
The barrister for the GAL submitted that he had no difficulty to the meetings with the assistant insofar as the contents were read back to the parents and they confirmed the accuracy of the contents. With regard to the fact that the witness in court had attended only one of the access visits the court the barrister said that from the point of view of the GAL it was “preferable if she had done the whole lot” and added it might be possible to have the assistant attend court to deal with those matters.
The court asked the CFA lawyer whether the assistant would be available to be cross-examined and the court was informed that the assistant had moved to the UK but that the CFA would make enquiries as to her availability. The judge said that video link facilities could be made available. The judge said that she would not make a determination on the matter of admissibility and hearsay evidence until it was clarified whether the assistant would be made available. The judge adjourned the issue of the admissibility of the evidence of the psychologist in respect of the parental capacity assessments.
The judge told the parties that she was anxious to progress the case and that she wanted “to hear facts about this family and not just opinion, the case has started with opinion and I want some facts please”.
Evidence of psychologist relating to Child H
When a psychologist who had carried out an assessment of Child H was called, an objection was raised on behalf of the parents on the basis that hearsay evidence was being relied upon by the witness in forming his view, as he was relying on comments from the foster mother and teachers. The parents objected on the basis that they were not being called as witnesses and therefore their comments could not be analysed by the court and it was not possible for the parents to cross-examine these witnesses. The judge said that she proposed to hear the entirety of the evidence and would deal with the issue of hearsay during the course of cross-examination by the barristers for the parents.
The witness told the court about his qualifications and said that he had been working as a psychologist for 15 years. The witness was engaged by the CFA to prepare a report and to carry out a full psychological assessment of B and to assess her cognitive development and attachment. The witness had six separate assessment dates from April 2019 to May 2019. The witness confirmed that he had conducted all of the assessments and each assessment lasted approximately and hour to an hour and a half. The witness said that he only carried out an assessment of B and did not carry out any assessment of her brothers.
The psychologist said that the psychologist who had assessed A and C had met with the parents for a full clinical interview and said that she would give evidence in respect of that interview. The witness confirmed that he had also met with the parents and met with B over six sessions.
He said that a Stanford Binet intelligence scale test was carried out with B. An adaptive behaviour assessment system was completed by the foster parents and the questionnaire was given to the foster parents for them to fill out. It was this test that the parents had raised a difficulty with. A child behaviour checklist and a teacher report form were carried out by the teacher and the foster parents and the witness said that he was not present when they were carried out but that they filled out the forms and sent them back. He had also conducted a telephone interview with the teacher and with the foster mother.
He also carried out an assessment involving the Marschak Interaction Method with B and each of her parents and had observed family access.
The psychologist outlined his understanding about B’s educational history. He said that she engaged well in school but had some difficulties academically and some difficulties with her language abilities.
Describing the assessment, he said: “[B] would have been easy to engage with in initial assessments and showed no reservations at all. A lot of children are nervous. She showed no difficulties and was smiling throughout the assessment.” He had noted that her smile was inconsistent with her surroundings and she had smiled throughout the assessment no matter what was said.
He had also noted that her language difficulties were a significant issue and he stated that he was surprised that her issues had not been addressed prior to that.
Psychologist: “She tended to dissociate and her eyes would glaze over and she would stare blankly for a period of time. Sometimes this was as a result of her language difficulties but sometimes it was at different questions about difficult issues. Incorrect responses were given by her and she was not comprehending what was expected of her which is unusual for children her age.”
An intellectual assessment was carried out which was a cognitive assessment looking at B’s IQ across her verbal and non-verbal skills and it looked at five different factors of intelligence.
Psychologist: “She presented with the most significant difference I have ever seen across her verbal and non-verbal ability.”
The witness set out the scores she had obtained when she was assessed. Child B’s non-verbal IQ was in the average range at 105 which meant that in terms of her peers 63 % of her peers would score lower. Her verbal IQ scored at 64 which meant that 1% of her peers would have a lower score. The witness told the court that the difference between the scores would be found in less than 0.01% of the population
CFA barrister: “Can you account for the difference in the scores?”
Psychologist: “My expectation is that she has a developmental language disorder but a speech and language assessment would be needed to do an assessment and diagnosis. It is not my reason to say why but there is a significant difference between the two.”
He told the court that he was not able to give B a full scale IQ score because there was such a significant difference between her two scores that it was uninterpretable as the difference in level was “quite significant”. She had struggled “significantly” in her verbal functioning in this area but she was “above high-average” in her ability to do things without being verbalised.
Due to the significant difference in B’s verbal and non-verbal scores in the area of her working memory assessment he had recommended non-verbal teaching practices for B until a speech and language expert had made a diagnosis.
CFA barrister: “Looking at [B’s] five scores, what does that tell you about her?”
Psychologist: “She has strong abilities and potential across all areas however she is significantly limited by her language skills and she would need significant assistance to promote her development.”
He had also undertaken an adaptive functioning assessment system which involved the foster parents completing a questionnaire. He said that all of B’s functioning were in the “extremely low range”, her social functioning was low and she “seeks out younger children to play with”.
He described other tools he used as part of his assessment and told the court that Child B’s “general active composite score”, which was similar to a full scale IQ, scored at 55 or that 0.1% of her peers scored worse. “She was functioning at a very low level in the environment she was living in at the time of the assessment.”
Some of the factors highlighted by the foster parent were around B’s communication which he said “I would have observed myself” and her social functioning would have been observed by the witness from his own tests and observations at access.
The emotional and behavioural assessments were filled out by the foster mother and teacher, which gave a subjective assessment about internalised difficulties such as having withdrawn behaviours, like anxiety or depression, and external behaviours such as aggression and rule-breaking.
Judge: “Could this be one foster mother just not getting on with the child or mother just not getting on with the child so these responses are not fool-proof?”
Psychologist: “Absolutely not, it aids my assessment as I would have pursued any areas highlighted myself.”
Judge: “Not to treat as gospel, to use that expression?
“No, never. I am never certain of another person’s agenda.”
He told the court that a significant difference was identified between the report from the teacher and how B was presenting in the foster home, where she was having more social problems and behavioural issues at home and appeared more settled at school. “When children are experiencing difficulties at home their school can be a safe haven in a structured environment.”
In an attachment relationship interview some difficulties in her engagement were identified because of B’s language difficulties she had struggled to understand basic words such as “happy or silly, or what they meant. She appeared oblivious to any negative factors in respect of her family. There was absolutely no negative description of her parents.”
CFA barrister: “What does that suggest?”
Psychologist: “It suggests that a suppression of experiences maybe that were negative and it could be a defence mechanism of the child [that] the child puts in place in their psyche to protect themselves against psychological harm.”
He also said that when they discussed her foster family there were no positive descriptions and the child responded very negatively to boundaries put in place with her by the foster parents. She was unable to describe any boundaries that were in place in her own family.
The girl had discussed nightmares with the witness and she had mentioned computer games with adult content which the witness described as “highly inappropriate for a child her age”. He had looked at the computer games himself and described them as something an adult might find disturbing. She had also relayed a story about her grandfather being shot but when this was checked with the social worker they had no report of such an incident.
When the witness had asked B questions about her parents he said that at times she disassociated and the witness said that he considered she had not experienced many boundaries with her parents and was “extremely reactive when boundaries were put in place”.
Asked for examples of questions he had asked H, he replied: “Can you remember the last time you were sick? Who took care of you when you were sick? She responded: ‘I don’t get sick’.”
CFA barrister: “She described the day she was taken into care. What did she tell you?”
Psychologist: “She reported that her parents were sad and crying and she wasn’t crying, an extremely traumatic experience for a child, and to see her parents in a distressed state. A dismissal of any negative feeling in respect of that suggests that she is displacing feelings.”
He had observed access with the mother and siblings in the family home and was accompanied by another psychologist who was observing her brothers. The family was aware that they were coming to observe the access and it was not an unannounced visit.
He said: “The family home appeared untidy. There were toys and clothes lying around and a general unkempt feel. The table was covered and the kitchen counters were grimy. Having read the social reports this was a chronic issue. There is an expectation in a home visit that there would have been some change.”
He described B playing with her brother and had a presentation of smiling throughout even when she was fighting with her brother or when she was excluded from play she had a smile on her face. The witness described this as “displacing her real feelings” and that it was a “protective strategy putting on a brave front.
“She has learned that attachment behaviours such as crying, she learned early on were not necessarily responded to. She learned early on that the best way to have her needs met was in a more of a care-giving role rather than demanding of her parents.”
The judge asked if this could not just be because of her personality type and that she was a happy and resilient child but the witness said that he would be concerned if she smiled when she was shouted at by her brother. He said that from his expectation based on working with children she “consistently responded inappropriately”.
Her responses had suggested to him that she had experienced inconsistent responses to her attachment needs throughout her life. She had put in place “quite fragile attachment strategies” to manage in difficult situations. When she was in her foster home initially she responded with extreme distress in a new environment with boundaries, which had consequences for her behaviour and emotionally and was “quite a shock for her”.
Sessions between her and the parents involved observing tasks that were video-recorded and watched by him after. He described it as an opportunity for the child to express attachment behaviours and for the parent to respond appropriately and it allowed him to assess the appropriateness of their interaction.
From the outset of the assessment both parents had been very passive and had allowed the little girl to take the lead. The father was able to engage but did so at an inappropriate level in terms of her age. He had difficulty with structure and had allowed B to dictate the terms of the session even where it was more appropriate for the parent to lead.
The mother had persisted longer than the father in terms of engaging with the child and her engagement was more age-appropriate. She had used praise to continue her engagement and did try some motivation techniques “but not too many”. After a period of time she had also allowed the child to take the lead but the witness said that there was a possibility of some anxiety by the mother in the process which he “attributed to her being aware of being observed”. In terms of nurture the witness said that the mother was comfortable in offering affection to the girl.
He told the court that the overall assessment process suggested a very vulnerable girl whose emotional behaviour development was considerably impacted by a passive neglecting parenting style and her speech and language deficits had a widespread impact. With low supervision and physical and emotional neglect B had failed to thrive and her cognitive development was impaired by the parenting style as she was not receiving all the input she should in order to develop skills, which gave rise to “significant concerns”.
Psychologist: “Her experiences in the home have been traumatic as she has not received the care she needed. She has been permitted to access inappropriate materials resulting in chronic nightmares. The passive style of parenting is inappropriate and contributing to her failure to thrive.”
He said he was supportive of the care order on the basis of his own assessment, and if the full care order was granted he recommended that the foster carers should engage in attachment-based intervention and an added form of therapy. He recommended that access should be at the discretion of the CFA and be supervised and due to the poor cognitive ability of both parents that a “more bespoke support” should be provided during access visits.
Cross-examined by the father’s barrister, he agreed that his involvement was solely in respect of B but that he would have discussed the case with the other psychologist following their joint observational session at access. The barrister for the father queried a section of the report that referred to A and the witness said that it was a typo as he had looked at that part of the report in respect of the other children as a “research piece”.
Father’s barrister: “You didn’t outline that in the report.”
Witness: “The report was completed by myself but we did have input into each other’s reports as it was a family situation.”
He said that it was part of “co-working” and when he was asked if there was a cause for concern in respect of the integrity of the report he said that he could deal with any area of contest. The father’s barrister put to the witness that B’s inability to provide examples of positive experiences at home may be due to a number of reasons such as her language issues. He said: “I can’t rule out that it was not because of reasons of language issues”.
Judge: “Could it not be concluded from what was found that that child wants to go home and that is why she was telling you about positives?
Psychologist: “I do think she wanted to go home as she stated that.”
Father’s barrister: “I suggest to you again that there could be a number of reasons other than oppressing or a hideaway of negative experiences?”
Psychologist: “I would have thought that she would have been able to provide some positive examples.”
Asked about the questionnaire that had been filled out by the foster parent, he admitted that he had since become aware that B was living in a different foster placement since June 2019. The CFA clarified for the court that the previous foster home was a short-term placement and that B was not in a long term placement.
The barrister asked the witness if he had been asked to carry out the questionnaire again with the new family. “If the current assessment with how she was getting on was more positive would that have a bearing on your findings?”
Psychologist: “It would further inform my conclusions.”
Father’s barrister: “So it would be relevant?
The barrister asked the witness whether B’s difficulties with language might have explained some of her unusual comments and the psychologist said that he had tried to clarify as much as he could so that she could comprehend what she was asked, but that he could not rule out that her speech and language could have impacted her. “I feel that all positive were towards her family and negatives to a Mr Nobody give me the impression that she did comprehend.”
The barrister asked whether the video recorded observation sessions made people feel under scrutiny and the witness said that he constantly sees people in that situation and does take into account their baseline of anxiety as a consequence.
Referring to the cause of the language delay, he said that the research suggested that passive parenting can impact on developmental delays when children are not given appropriate stimulation and with all of the evidence he had before him “it appeared to be the most likely” attributing factor, but that it could also be because of genetic elements and he was “not certain”.
In respect of his surprise at B’s speech and language delay, the mother’s barrister put to him that the mother had told him that she had attended with the girl for speech and language therapy. The psychologist said that the mother had also said that she had no concern with about B meeting her early developmental milestones, and there was no follow up. He recommended a referral to a speech and language therapist with a view to getting support for the child.
He agreed that a variety of things can cause developmental delays such as learning disabilities but said that he had ruled out an intellectual disability as both her verbal and non-verbal scores “would need to be in the extremely low range”. Responding to the fact that both the mother and an older child had a cognitive disability, he agreed that genetics could be a factor and it was a “nature and nurture debate”, and could not be attributed to it definitively.
The judge asked him if during the recorded observation sessions the child had already completed some of the tasks with the father and then had to do the same tasks again with the mother. He said that some of the tasks were the same and he accepted that the mother appeared nervous when video-recorded. He accepted that he had also observed during access the mother engaging in arts and crafts but he said that his expectation was that there would have been some structure. The witness accepted that the mother’s use of praise at various points was appropriate in engaging the child. The barrister asked if the observation at access was more natural rather than when the mother was observed by camera and he said that it can be “more representative of parenting style”.
In cross examination the barrister for the GAL asked about “dissociation” and what caused it. The psychologist said that it can occur when a person experiences something that is too difficult to process and they can suppress and blank out emotions and that it was a stress response.
In terms of its severity as a stress response he said that he was not sure if he could place it on scale but that he “would consider it quite a significant stress response particularly in a young child.” He had observed Child B dissociate by smiling or staring off in to the distance. He said that suppressing emotions and coping strategies in this way can lead to mental health difficulties and it was a concern for a child of that age.
GAL barrister: “If the court was not to make a care order, what would be the risks in light of that to her health, development or welfare?”
Psychologist: “Based on my assessment and previous reports, my expectation is that things would continue on and she would fall to these strategies for survival. Without significant intervention I would expect her to deteriorate. It has become her precursor response to stress and her go-to strategy… she would be in a vulnerable state without intervention and would be vulnerable to abusive relationships in the future.”
GAL barrister: “If it was the case that she knew that her parents wanted her home do you think she would be free or able to express a contrary wish.”
Judge: “I have to be blunt with you, is it the case that you accepted as fact all allegations and concerns?”
Psychologist: “I would have queried some of it. I have the list of services that were offered to the parents and I would have expected to see significant changes in the house or in relationships.”
Judge: “Are you basing your view on what was reported in the reports?”
“Well what was reported was still evident when my assessment took place. There was nothing that countered my findings in the report.”
F’s video evidence
A recording of a phone call between the daughter F, her father, her mother and older brother was played to the court. In the recording the father repeatedly asked his daughter if she would like to move back home and asked her to tell the truth with regard to the allegations she had made against him. The father told his daughter he could have her charged for damaging his name.
A video-link interview was set up with Child F. She was now a young adult.
Asked what were her allegations and how old she was at the time, F said: “I was 13. I was sexually assaulted by my Da.”
Asked where, she replied: “A few places. In his room. I can’t remember the day of the week or the time.”
Asked to give further details, she said he had touched her with her clothes on and off. “His clothes were off. He touched my chest and down below.”
She said she did not remember how many times, but said that this had also occurred on a local beach in the back of her father’s car. “He tried to have sex with me, but didn’t. The car was going up and down, a Garda car was going in and out [of the beach]. He told me to put my head down.”
Asked if she had told anyone about it, she said she told her now former boyfriend, a youth worker and her sister. Asked if she told the Gardai, she said: “They know. The social worker got them involved.”
She said she was now living in emergency accommodation as she had become homeless as a result of the allegations. “I don’t like living in homeless accommodation, but I have no choice. [X] is my ex-boyfriend. I have no-one else in my life to support me.”
The CFA barrister put it to her that her father said the abuse did not happen.
“It did happen and he knows it did,” she said. She said her then boyfriend (X) had told her mother. “She said to put [X] out the door. She said it was lies and I would get arrested. It’s not lies. All the family believe him, they’re all stuck in him.”
She said she missed being with her brothers and sisters.
Referring to the phone call with her parents that had been recorded, she said: “They didn’t tell me they were recording it. They didn’t have my permission to record it. The allegations are true. I just didn’t have the strength to deny it on the phone.”
Asked by the father’s barrister why she had not earlier told the youth worker about the allegations, she said: “Because it’s hard to talk about that. I didn’t know if it was right or wrong until I talked to [X, her then boyfriend]. I didn’t know if it was normal.”
Asked why she did not tell the social worker, she said: “Because it’s hard to talk about it. If it happened to you, you wouldn’t be able to talk about it.”
Asked when she started going out with X, she said while she was living at home. “My parents didn’t like him, they were jealous of him. They used to call him handicapped when he (has a neurological disorder). They used to always threaten him as well.”
The father’s barrister said that the father would say the allegations were made when he said the boyfriend could not be in the house, and that he had influenced F to make the allegations. “No, he didn’t influence me,” she said.
Barrister: “Your Dad will say because you are pissed off you made up the allegations.”
Child F: “I wouldn’t be sitting here is I made them up. They’re the reason [X] and I are not together any more. I had to leave [him] so he could get on with his life.”
The barrister then referred to the recorded phone conversation, and F said again she did not give her permission for the recording. She was referred to a part where her parents said they missed her, and she said: “I’m not really against my Ma. she just took up with the wrong person.”
Asked how she got on with her mother, she said she used to meet her every Thursday, “but she kept bringing everything up, the court and everything.” She added that she had ended contact with her sister because she “turned against me”. She also rejected statements from her mother’s barrister that her mother would deny saying she would be arrested for telling lies.
Asked by the barrister for the three youngest children’s guardian ad litem what she thought would be best for them, she said: “Stay where they are. They’re much cleaner, always washed. They’re happier. They were crying all the time in the house. Or angry. You could tell they didn’t like being in the house. They were not going to say that in the house. They were always upset.”
Asked why, she replied. “I honestly don’t know. There was always someone shouting at them, calling them names. They used to call my little brother handicapped, my Ma and Da. They used to throw stuff at him, belts and things. He got slapped.”
Asked how the child reacted, she said: “Crying.”
Asked if the family had ever done nice things, like going to the park, she said: “Very rarely.”
Asked about her life since the allegations, she said it had got worse, “my mental health is wrecked”. Her (older) brother had tried to hit her and she was threatened by her cousins and her brother. “They told me to kill myself. They said no-one would turn up to my grave.”
GAL barrister: “Has anyone in your family told you they believed you?”
Child F: “No. They all stuck up for him.”
Asked how other family members knew about the allegations, F said that her mother had told them, though they were not meant to talk about it outside the court-room.
The judge stressed that the allegations and the proceedings could not be discussed outside the court-room, and asked the lawyers for the parents to spell this out to their clients.
A garda gave evidence that she interviewed the girl F several times. She said that the girl told her in interview that she was abused by her father on Friday nights when her mother was out and that he would lock the front door so that no one could get in. She said that the girl told her that her father would tell her he thought of her when he had sex with her mother and that her father would make her take her clothes off or that he would take them off.
The garda told the court that the girl told her that when they were driving in the car her father would grab her hand and put it down his pants and that sometimes he would force her head down on his penis or that he would get on top of her. The garda told the court that getting the information from the girl took a long period of time and that the girl would drop her head when describing the abuse.
The garda added that the girl told her that the abuse occurred from the age of 13. She said that the girl said that some of the abuse took place at home and also occurred in the car from time to time.
Barrister for the father: “You are not a specialist interviewer? Some of your questions may have been leading. This is your recollection? It is fair to say you have no training regarding interviewing sexual abuse allegations?”
Garda: “No, it was [the girl] who would lead me to how the interview would progress. I was trying to get her to trust me. When you deal with someone who has vulnerabilities you try to get their trust.”
Barrister for the father: “You asked her did it start with a kiss? You accept that’s a leading question?”
Barrister for the father: “You accept when a person is particularly vulnerable it’s not desirable to take a statement from them using leading questions?”
Garda: “I needed to flesh out what she was saying to get enough information to get a child interviewer involved.”
Barrister for the father: “Those type of questions distorts the statement. You weren’t provided with that support?”
The father’s barrister told the court that the witness was only giving evidence to confirm that an allegation has been made and was not in court to prove the truth of the allegation.
The barrister for the GAL asked the Garda if there was any indication that the girl was being coached or that she was loving the attention. The Garda told the court that there was no indication that the girl was being coached. She said that the girl was vulnerable and that she shut down while being interviewed, that she made no eye contact and made her body smaller.
Public health nurse
A public health nurse gave evidence that she first worked with the family in 2014 and was involved with the family up until the younger children were taken into care. She said that the mother was easy-going and open to visits, however; the home life was chaotic due to demands on her by her older children.
She told the court that due to concerns about the younger children the file remained open until child B was five years old. She told the court that child C had 21 checks, much higher than normal, due to ongoing concerns. She told the court that it was clear the mother loved her children, but that she seemed to be in her own world. The public health nurse gave evidence that she had to explain the developmental needs of the children to the mother and had to remind her about how to identify with them as children.
The public health nurse gave evidence that child B was not toilet trained until she was four years old and that she exhibited delayed speech development. She said that the children were often dirty and that head lice was a continuous issue with both child B and child C.
She told the court that C had developmental delays due to being left to lie in a basket most of the time. She said that at nine months he could not sit up, and at 15-16 months he could only lean to one side on the sofa. She said that there was a slight improvement in both children B and C after they started creche and after their older siblings had moved out.
The public health nurse said that she received a notification that child C was admitted to hospital having ingested ecstasy and amphetamine tablets. She said that the house was untidy and that there were ongoing hygiene concerns. The kitchen table was covered in clutter and that there was nowhere for the children to eat or to do their homework. She told the court that there was frequently food waste on the floor, that it was difficult to access the sink to wash hands, that the garden was full of refuse, so it was impossible for the children to play outside. The council subsequently provided a skip and removed the rubbish.
Request for psychometric tests
The barrister for the CFA told the court that they requested the psychometric testing from the psychologists, however the psychologists refused to provide the tests on the basis that the reports are unintelligible to lay people. The barrister for the CFA said the legal teams would be unable to proceed without the psychometric testing and that the matter would not be resolved prior to the next hearing date.
The judge said that fair procedures dictate that the parents are entitled to cross-examine the psychologists on how they arrived at their opinion and what tool was used to determine that opinion. The judge said that she would not force the matter on when there are issues with fair procedures.
The hearing dates were vacated until the issue of the reports could be resolved. The Covid 19 crisis then intervened and the case was further put back.