A Judge refused an application by the Child and Family Agency (CFA) for Care Orders for two children who had been in care since birth, the eldest for almost five years. He granted a Supervision Order for one year. He directed the CFA to carry out an internal independent investigation into its handling of the case, describing the delay in the case as “inordinate, inexcusable and entirely unacceptable.”
The judge delivered a 40-page written judgment, dealing with the background to the case and a range of legal issues, including the constitutional position of the family and the child, the jurisprudence of the European Court of Human Rights on the rights of the family, the interpretation of the child care legislation, the thresholds for various child protection orders, the admissibility of evidence where witnesses are not called to support that evidence, and the role and entitlement to legal representation of a guardian ad litem.
He said the failure of the CFA to call evidence from another jurisdiction relating to serious allegations against the parents was fundamental to his determination of the case. To decide the case in the absence of such evidence would violate the respondents’ constitutional right to a fair hearing, he said. It was for the CFA to prove its case, and it had failed to do so by not calling sufficient evidence.
He said the delays in the case could not “under any circumstances be found to have been in the best interests of the children or to have promoted the welfare of the children.” Child care proceedings required prioritisation and must be dealt with as expeditiously as possible. “This was not done in this case.” There was, he said, a duty on all parties to child care proceedings to minimise delays in seeking a determination of a case in the interests of the child. “There was a failure of this duty in this case. The Court is making no finding as to where the fault lies or to what extend that fault should be shared between the parties.”
He directed the guardian ad litem (GAL) to write to HIQA and the Ombudsman for Children notifying them of the delays and asking that they consider exercising their statutory powers to carry out an investigation into them. If changes, including legislative changes, were necessary to ensure that delays of this magnitude did not occur in future child care cases then some benefit might be derived for children in the future, he said. The judge said he would lift the in camera rule for that purpose if either HIQA or the Ombudsman for Children wished to carry out an investigation.
The children were born in Ireland after the parents had left their home country and arrived here three days before Child A was born. Documentation had been forwarded to the hospital by social services in the country where they were habitually resident expressing concerns in respect of the unborn child. This information was forwarded to the social work department in the HSE.
On the day after the child [A] was born, the Gardai invoked Section 12 of the Childcare Act at the hospital and delivered the child into the custody of the HSE. An Emergency Care Order was granted by the local district court on the same day. The parents had regular supervised access with the child and less than two years later a second child [B] was born.
The parents got married a month before the birth of the second child. Child B was taken into care under an Emergency Care Order six days after birth. The parents had supervised access with both children and the judge said that, from the evidence given to the court, the access had been positive.
On the date the Care Order hearing commenced, A had been care for 4 years, 11 months and 22 days and B had been in care for 3 years, 1 month and 7 days.
The judge directed that the CFA investigation should “critically examine” the role of the social work team in the case. The investigation should incorporate an examination of the training afforded to social workers including increasing their awareness of legislative provisions and appropriate case law and what supports should be put in place to help social workers to deal with complex childcare cases. This would include supports for social workers to deal with work-related stress and considering whether adequate staffing levels were in place.
He also ordered that appropriate protocols and policies be prepared and implemented by the CFA in relation to social work reports prepared for Court in view of what he described as “a serious issue” which arose in the case. The judge said that evidence had been given of the steps taken by the social work department and the making of the decision to seek an Emergency Care Order (ECO) for child A. During the course of the cross-examination on behalf of the parents attention was drawn to the report prepared for the court seeking the ECO.
The report was prepared using the information which had been provided by the social services in the other jurisdiction which included details of allegations of sexual abuse being made against the respondents. However, the report had excluded reference to “an essential piece of information which stated that a third party was a potential perpetrator of the abuse. No adequate explanation was given by the witness at the hearing of this case as to why this sentence was excluded.”
The judge said this information was clearly material and should have been brought to the attention of the court hearing the ECO application though he said he believed the order would have been made even if that information had been provided.
“However,” he said, “this omission should not have occurred. It is essential to a court hearing an application that it can have confidence that where a witness swears to the truth and accuracy of the contents of the report being presented to the court that all relevant facts and other information are provided in that report and in evidence to assist the court in determining the appropriate order which should be made”.
He also directed the CFA to carry out an enquiry as to why the provisions of Council Regulation (EC)2201/2003 (Brussels 11 bis) Article 15 were not used in the case. These provisions allow for the transfer of a case to the jurisdiction which is the habitual residence of the subjects of an application involving parental responsibility and other family law matters.
He said it was clear that the other jurisdiction was the habitual residence of the parents, who were the holders of parental responsibility for the child. He said the parents, having engaged with the social services in the other jurisdiction before the birth of the first child and on advice from a politician, had made “a conscious and deliberated decision to come to the Republic of Ireland based on the consideration of the different childcare legislation applying in this jurisdiction, particularly in relation to the adoption of children.
“The court cannot condone such actions as were taken by the respondents in this case. As a result of the outcome of this case the respondents may be of the opinion that ‘the end justifies the means’. This court wishes to inform the respondents in the strongest possible terms that it strongly disapproves of the reasons they moved to Ireland,” he said.
The Respondent mother had two children when she lived in the other jurisdiction, one of them with the father in this case, the second-named Respondent. While the mother was pregnant with her second child the parents had brought the older child to hospital. Following an examination by two consultants, the family were informed of findings which indicated that the child had been sexually abused. This child was subsequently removed into foster care and the respondents became the subject matter of an investigation by the police.
The respondents strenuously denied that they had abused their child and implicated a third party who had been minding the child during the latter stages of the mother’s pregnancy when she had suffered complications. Following the birth of the second child, this child was immediately taken into care and placed with a foster family along with her sibling. The mother had regular supervised access with her children after they had been taken into care. The court viewed a video recording of the final access of the mother with her two children and it was clear that this access was positive and there was an excellent interaction between the mother and her children, the judge said.
No perpetrator of the sexual abuse of the child had ever been identified and no person had ever been charged. Ultimately in a hearing where the mother was legally represented, the court in the other jurisdiction made a Care Order in respect of both children who were placed in care and adopted. The respondents did not appeal this Order.
The judge said that social services in the other jurisdiction then became aware of the mother’s pregnancy with child A and convened a meeting with both parents where they were told that the child would be taken into care at birth. The judge said a politician had advised them to leave the country in advance of the birth and they travelled to Ireland three days before the baby was due. They presented themselves to a local hospital when the mother went into labour.
The day after the child was born the Gardai invoked Section 12 of the Child Care Act and the child was delivered over to the Health Service Executive (HSE, later the responsibility was transferred to the CFA). Documentation had been sent to this hospital from social services in the other jurisdiction, expressing child protection concerns for the unborn child. In the light of this an Emergency Care Order was granted, followed by a succession of Interim Care Orders.
The second child was born less than two years later, and an Emergency Care Order granted within a week of his birth. He too remained in the care of the HSE and the CFA under Interim Care Orders. The parents had regular supervised access with both children throughout their time in care.
The proceedings for full Care Orders began in May and continued over 19 days, with a number of adjournments. The judge gave a written judgment at the end of November.
In the course of the hearing evidence was heard from CFA social workers and a number of expert witnesses who had carried out assessments on the parents. Evidence was also presented to the court relating to historic documentation from the other jurisdiction, but no witnesses were called from this jurisdiction to be cross-examined on this evidence. A written judgment from the court in the other jurisdiction, containing case papers, had been made available by that court.
In the course of the hearing, the parents’ barrister made an application that documentation received from the country where the parents previously resided be excluded where witnesses were not called to prove this documentation. Following an examination of legal authorities the court ruled it could attach little or no weight to the expert evidence in the case relating to historic documentation from that country, with the exception of Court Orders relating to the two other children. Care Orders had been made for the mother’s two older children and a parental responsibility order for the father relating to one of them.
Permission had been granted by the court in the other country to disclose the case papers in the proceedings there to the Irish court. However, the Irish judge said he was disregarding the contents of this judgment as no High Court order had been made relating to it. Such an order is provided for in EU Regulations which cover the recognition of decisions in family law matters across EU jurisdictions.
The judge said that during the hearing he had considered whether it would be appropriate for him to seek a report from social services in the other jurisdiction. On reflection he had decided it would not be appropriate, as it was a matter for the applicant (the CFA) to prove its case and obtain any relevant evidence.
“However,” he added, “the court was in a position to have regard to admissions made or information given by the respondents to the social workers or other professional witnesses who carried out assessments on the respondents [in Ireland].”
In his judgment, the judge said that in order to satisfy the threshold that the children’s health, development and welfare was likely to be avoidably impaired or neglected, then past facts must be proved to enable the court, on an objective basis, to determine the likelihood of future harm, on the balance of probabilities. “Findings of the court in cases of such import as child care proceedings must be based on facts proved in evidence, and not suspicions,” he said.
Because no evidence had been called to substantiate the suspicions of involvement in, or failure to protect from, child sexual abuse in the other jurisdiction, the basis for the application had not been proved. “Reasonable concern or suspicion is not sufficient to enable this court to make Care Orders. This court only makes Care Orders on the basis of proved facts,” he said.
He said that if the court was to decide the case in the absence of evidence from the other jurisdiction, it would be failing in its duty to vindicate the respondents’ constitutional rights to a fair hearing. He recalled discussions that had taken place regarding the witnesses from the other jurisdiction, who had said they were not prepared to travel. The court had indicated that facilities might be made available to obtain their evidence via video link, but this was never sought by the CFA.
He added that if it was the case that these witnesses were not prepared to travel, given the seriousness of the issue, it was something that should be raised by the CFA with the relevant Government Minister so that this could be raised with the Government of the other jurisdiction. If necessary, a full investigation should be carried out into what happened in this case with a view to having proper protocols put in place for reciprocal arrangements for witnesses.
Turning to the other evidence, the judge referred to that from various experts who carried out assessments and prepared reports on the parents. He said the court must consider this evidence in light of its previous ruling that it was attaching little or no weight to evidence relating to historic documentation received from the other jurisdiction, save the Court Orders. Two professionals had given evidence of a risk assessment carried out on the parents.
They said they would be willing to help and support the couple towards family reunification on conditions which included that the parents would engage in weekly therapy for a period of 18 months. Supervised contact would be greatly increased and the children would remain in care until and if a gradual and phased rehabilitation plan was in place.
A psychological assessment was then carried out on the respondents on behalf of the CFA. This included a psychometric and a cognitive assessment. The opinion of the professional who carried out the assessment was that the mother had a limited ability to protect the children and provide them with a safe and stable environment and that “it was unlikely that the mother would be able to meaningfully engage and make the necessary changes in a time scale that would be of benefit to the children.”
Following an application by the parents, a parenting capacity assessment was also carried out on them by two experts who concluded that they were of low risk of perpetrating a sexual offence in the future and recommended that the parents continue with individual therapy into the future.
The judge said the court was faced with a conflict of evidence in relation to the various expert witnesses and the findings and recommendations which each had given. The court took “the unusual step of requesting that the evidence given by the witnesses to the court would be transcribed and made available for consideration.” The court had read the transcript of the evidence given by each of the expert witnesses.
After considering legal authorities, specifically a Supreme Court judgment from Justice Geoghegan stating that expert evidence should be considered in the light of the constitutional presumption in favour of children being with their birth parents, he accepted the findings and recommendations of the experts who favoured reunification. He said he found the evidence by the professionals who carried out the parenting capacity assessment on behalf of the parents to be both responsible and credible.
The judge refused the CFA application for Care Orders and instead made a Supervision Order for one year. In doing so, he said the court was aware of the length of time the children had been in the care of the CFA and that the children had resided with the same foster parents since they were taken into care.
He said that there would be clear challenges to ensure that the children were reunified with their parents in a manner that causes the least possible disruption and effect on their best interests and welfare. All parties would have to work together to their aim, with the foster parents having an important role. He also recommended that experts be engaged to advise the parties as to the best way to deal with these challenges.
The judge set out his reasons for refusing the CFA’s Care Order application in a written judgment over 40 pages long, outlining the relevant facts, legislation, legal authorities and case law. He said that, having heard detailed legal submissions during the course of this case, the Court deemed it appropriate to set out what it believed were the legal principles which applied in childcare cases “which formed the legal basis for its final determination in this case.”
He also dealt at length with the role of the guardian ad litem, the issue of GALs’ remuneration and whether legal representation is always appropriate for GALs.
Interpreting the legislation
The judge cited the provisions of Section 18(1)( C) of the Childcare Act 1991 which provides for the making of a Care Order and went on “In KA v HSE 4 IR 794 O’Malley J states:
‘The terms of the Act require that, in making a full care order, the District Judge must be satisfied that a specified factual event or set of events has happened, is happening or is likely to happen and that the child, in brief, needs the protection of the order.’”
He said the manner in which the Child Care Act was to be interpreted was explored in the case of Western Health Board v KM  2 IR 493 by McGuinness J when she stated:
“I have already very briefly set out the history of the enactment of the Child Care Act 1991. There can be no doubt that it is a remedial social statute, and was seen to be such by all who were affected by its provisions. Its social and remedial importance was accepted by all, including this Court and more particularly the District Court, which for many years had striven to operate the provisions of the Children Act 1908, in a way which made sense in the latter part of the twentieth century. This is borne out in the decisions relied upon by counsel for the applicant in the cases of the Director of Public Prosecutions (Houlihan) v P.G.  1 IR 189. I would therefore accept the submission of the respondent that the construction of the Act of 1991, as a whole, should be approached in a purposive manner and that the Act, as stated by Walsh J, should be construed as widely and liberally as fairly can be done”.
The judge said therefore the courts in interpreting the Act as a whole must do so in a purposive manner construed as widely and liberally and as fairly as can be done. However in doing so regard must be had to the relevant constitution rights of the child and the parties.
He referred to Section 24 of the Child Care Act 1991 which states:
“In any proceedings before a Court under the Act in relation to the care and protection of a child, the Court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall-
- Regard the welfare of the child as the first and paramount consideration, and
- in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.”
He said: “Welfare is not defined in the Child Care Act 1991. Section 3 of the Guardianship of Infants Act 1964 is a similar provision and in Section 2 of this Act welfare of the child is defined as ‘the religious and moral, intellectual, physical and social welfare of the child’. Article 42.1 of the Constitution of Ireland refers to ‘the inalienable right and duty of parents to provide for the religious and moral, intellectual, physical and social education of their children.’ References to welfare in the Child Care Act 1991 are to be construed in these terms.
“Denham J (as she then was) in North Western Health Board v HW  IR 616 said:
‘The constitutional principles applicable are those to be found in Articles 40.1, 41 and 42.5. These should be construed harmoniously. Thus, the child has personal rights: Article 40.1. The State has a duty to respect and, as far as practicable, by its laws to defend and vindicate these rights. The State has a duty to vindicate the life and person of the child. Thus, the Guardianship of Infants Act, 1964 and the Child Care Act, 1991, advanced the concept of the welfare of the child as the first and paramount consideration.
‘However, the legislation and the rights of the child have to be construed in accordance with Article 41 which places the family at the centre of the child’s life and as the core unit of society. The language of Article 41(set out previously) is clear and strong. The family is the fundamental unit group of society and the State (which includes the Courts) guarantees to protect the family in its constitution and authority.’
The judge then referred to MBO’S v PO’S  110 ILTR 57 where Walsh J stated:
“All the ingredients which the Act stipulates are to be considered globally. This is not to be decided by the simple method of totting up the marks which may be awarded under each of the five headings. It is the totality of the picture presented which must be considered….the word ‘welfare’ must be taken in its widest sense.”
“In his judgment in G v An Bord Uchtala  1 IR 32 Walsh J said:
‘The word ‘paramount’ by itself is not by any means an indication of exclusivity: no doubt if the Oireachtas had intended the welfare of the child to be the sole consideration it would have said so. The use of the work ‘paramount’ certainly indicates that the welfare of the child is to be the superior or the most important consideration, in so far as it can be, having regard to the law or the provisions of the Constitution applicable to any given case”.
The judge said the nature of childcare proceedings had been the matter of some discussion by the Superior Courts.
“In KA v HSE O’Malley J stated:
‘I accept that child care cases are not entirely analogous to other litigation; that the judge’s role is more inquisitorial than usual and that there is a need to preserve a degree of flexibility in order to deal with exceptional circumstances. However, the normal rules are that Courts act on evidence and that parties applying for an order must establish grounds for the making of the order. I see no reason why, if the rights of the Applicant and her children are to be accorded proper respect, these rules should not be considered applicable in cases under the Child Care Act.’
The nature of these type of proceedings was given comprehensive consideration by the Supreme Court in Southern Health Board v CH  1 IR 180:
“The Court thinks it important in the first instance to assign a description to the proceedings in issue. They are in essence an inquiry as to what is best to be done for the child in the particular circumstances pertaining. The Court holds that the nature of these proceedings is similar to proceedings where a Court is exercising its wardship jurisdiction. Section 3 of the Guardianship of Infants Act 1964 provides that where in any proceedings before any Court the custody, guardianship or upbringing of an infant is in question, the Court in deciding that question shall regard the welfare of the infant as the first and paramount consideration.
“The Act defines welfare as comprising of the ‘religious and moral, intellectual, physical and social welfare of the infant’. The Act of 1964, itself a statutory instrument of what is inherent in the Constitution, reinforces the common law position that the Court is entrusted with the responsibility of the child’s welfare. This is of the utmost importance. At the outset it must be emphasised that the proceedings are not of a criminal nature, nor are they a lis inter-parties. Here, the Court must undertake an investigation of what is in the best interests of the child: whether to be placed with the father or the Board…
“So, the first point to note about this case is that the judge is in essence required to inquire as to what is in the best interests of the child. It is true, of course, that the rights of the father must be safeguarded, as far as practicable, consistent with discharging that primary obligation. But when the consequences of any encroachments on the respective rights is considered, it is easy to comprehend that the child’s welfare must always be of far graver concern to the Court. We must, as judges, always harken to the constitutional command which mandates, as prime consideration, the interests of the child in any legal proceedings”.
Constitutional rights of the family and child
The judge also referred to the recent High Court case of FH v Judge Haughton  IEHC 533 (Hogan J), and the Supreme Court decision in Re JH ILRM where Finlay CJ stated: “Section 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in section 2 of the Act in terms identical to those contained in Article 42, s 1, is to be found within the family, unless the Court is satisfied that the evidence established an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons”.
This was reiterated by Hardiman J in N v Health Service Executive  4 I.R at P513 when he stated:
“The phrase ‘compelling reasons’ why the child’s welfare cannot be secured in the family, plainly connotes that, to meet the test, there must be found coercive reasons to believe that the proper nurturing of the child in the natural family is not possible. The phrase therefore has a natural and inescapable significance for the type of evidence required and the standard it must meet.”
The test was more recently applied in KA v Health Service Executive where O’Malley J states:
“in considering the interpretation of s 3 of the Guardianship of Infants Act 1964, in the case of In Re JH (An infant), Finlay CJ held that, having regard to the provisions of Article 42 of the Constitution, that Act must be construed as involving a constitutional presumption that the welfare of the child is to be found with the family unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case as envisaged by Article 42.5.
She added: “There is no contention in the instant case that this principle does not apply to the Child Care Act 1991. The Constitution envisages the family unit as the centre of the child’s life. The Act sets out a number of specified factual events or circumstances which will justify what is, even in the case of the interim order, undoubtedly a major interference with that model and with the normal rights of the family unit. The terms of the Act require that, in making a full care order, the District Judge must be satisfied that a specified factual event or set of events has happened, is happening or is likely to happen and that the child, in brief, needs the protection of the order. An interim order can be made where the Judge is satisfied that there is reasonable cause to believe that any of the specified circumstances exist or have existed and that the order is necessary for the protection of the child pending the determination of the application for the care order”.
“Therefore,” the district judge said, “one can find from the legal authorities that in order for the court to exercise its jurisdiction to take the child into care under the provisions of the Child Care Act 1991 the court must be satisfied on the evidence that there are compelling reasons that the welfare of the child cannot be found within the family or unless the court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to provide education for the child for moral or physical reasons.”
He said the child had certain personal constitutional rights which must be vindicated by the State under the provisions of the Constitution and he cited Chief Justice O’Higgins in G v An Bord Uchtala  1 IR 32:
“Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 42. S. 5’ of the Constitution, is given the duty, as guardian of the common god, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons. In the same way, in special circumstances the State may have an equal obligation in relation to a child born outside the family to protect that child, even against its mother, if her natural rights are used in such a way as to endanger the health or life of the child or to deprive him of his rights. In my view this obligation stems from the provisions of Article 40, s. 3, of the Constitution.”
The Supreme Court said in the case of The Adoption (No2) Bill 1987  IR 656:
“Article 42.5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.
Article 42.5 does not in any way mean that the children whose parents have failed in their duty to them become the children of the State or that they are to be disposed of as such.
The State would, in any event, by virtue of Article 40.3 of the Constitution be obliged, as far as is practicable, to vindicate the personal rights of the child whose parents have failed in their duty to it.
“The guarantees afforded to the institution of the family by the Constitution, with their consequent benefits to the children of a family should not be construed so that upon the failure of that benefit it cannot be replaced, where the circumstances demand it, by incorporation of the child into an alternative family.”
Denham J (as she then was) in North Western Health Board v HW  IR 616 said:
“Article 42.5 envisages, in exceptional cases, where parents fail in their duty to the child, that the State as guardian of the common good shall by appropriate means endeavour to supply the place of the parents, but this is subject to the rights of the child. It is clear that under Article 42.5 the State is the default parent and not the super parent.
“The Constitution clearly envisages the common good requiring the State to take the place of parents where they for physical or moral reasons fail in their duty towards their children. When taking this approach, due regard must be given to the right of the child to its family. However, the child at all times retains his or her personal rights also.”
In F.H. v Judge Staunton Hogan J states:
“There is no doubt but that the loss of parental right – whether on a temporary or permanent basis – is, however, a serious matter which the organs of the State should not lightly undertake: see, e.g., the comments to this effect of Hardiman J in N v Health Service Executive  IESC 60. Yet Article 42.5 envisages that there will be cases where this step is objectively necessary to safeguard the child’s own constitutional rights. As O’Flaherty J observed in Southern Health Board v CH  1 IR 219, 238 “the child’s welfare must always be of far graver concern to the Court. We must, as judges, hearken to the constitutional command which mandates, as prime consideration, the interests of the child in any legal proceedings”.
The European Convention on Human Rights
The judge said the Convention had been considered by the European Court of Human Rights in relation to child care cases on a number of occasions. It was clear that a margin of appreciation was left to the national Courts in the interpretation of Article 8 which provided:-
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
In Olsson v Sweden ECHR 24th March 1988 it said:
“ According to the Court’s established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is ‘necessary in a democratic society’, the Court will take into account that a margin of appreciation is left to the Contracting States (see, among many authorities, the above mentioned W v the United Kingdom judgment, Series A no 121, p 2760 (b) and (d).”
In K and T. v Finland ECHR 12th July 2001 the Court held:
“The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit. When a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited. The Court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed.”
The extent to which the Convention was binding on this State was considered, the judge said, by the Supreme Court in McD v L  IESC where Murray CJ stated:
“Thus contracting states may in principle, so far as the effect of the Convention at national level is concerned, ignore the decisions of the Court. They do of course have an express obligation under the Convention itself to abide by any judgment of the Court (Article 46.1). Fortunately its decisions are generally respected and executed”.
Weight to be given to length of time spent in care
With regard to the decision in K.T v Finland, the time a child has spent in care and the uncertain psychological effects on a child would not be a determining factor in light of the test which the Supreme Court set out in RE J.H an infant, the district judge said.
Kelly The Irish Constitution 4th edition at page 1925 states, with reference to Re J.H an infant: “By implication, an appreciable but uncertain risk of long- term psychological harm to the child would not appear to be a ‘compelling reason’ for rebutting the presumption that the child’s welfare is best served within the marital family.”
The judge said a district court judge was required to preserve an individual’s constitutional rights and to uphold the Constitution and the laws. “Having set out the legal and constitutional principles which the court believes are relevant in considering an application under Section 18 of the Child Care Act 1991 the court will now apply these principles to explain how it has come to its decision in this case.”
The CFA case
He said the CFA’s case was that “based on the evidence presented to the court that the provisions of Section 18(1) (C) that ‘the child’s health, development or welfare is likely to be avoidably impaired or neglected’ had been satisfied.”
This is the third ground on which an application for a Care Order can be made and he quoted Paul Ward in his book Child Care Acts Annotated and Consolidated (3rd Edition) at page 65:
“The third ground upon which a care order may be granted is on the basis that the child’s health, development or welfare is likely to be avoidably impaired or neglected. While the previous ground requires that there is or has been neglect or impairment to the child’s health, development or welfare, and that there is evidence to this extent, this ground operates on the premise that there has not yet been, or there is insufficient proof that there has been, neglect or impairment but that it is likely in the future. Of the three grounds this is the most difficult to satisfy in terms of proof.”
The judge said in this case the children had been in the care of the CFA almost immediately from their birth so it would not have been possible for the CFA to satisfy the court that the children had been assaulted, ill-treated, neglected or sexually abused or that the child’s health, development or welfare had been or was being avoidably impaired or neglected.
Further, on the facts of the case it would not have been possible for the CFA to prove the parents had failed in their moral or physical duty to the children. To succeed in the case, the CFA “would have to satisfy the Court that there are compelling reasons why the welfare of these children cannot be found within their family applying the test set out in the Supreme Court in Re J.H. an infant.”
The judge referred to the final written submissions on behalf of the CFA which summarised in the conclusion what was essentially its case:
“It is respectfully submitted on behalf of the Applicant herein that the evidence as adduced before the court is such that the court can be satisfied that the requirements of Section 18(1)(c) in respect of both children have been met – in particular having regard to:-
- the totality of evidence before the court – medical, psychiatric, psychological, social;
- the facts as proven of a history of failure to protect and to place children’s needs first;
- the cumulative evidence of proven past non-accidental injury to infants;
- the serious allegations of sexual abuse;
- the long history of the proceedings and the protective orders previously made in respect of both children;
- the compelling evidence that the welfare of both children at this point in time requires that Care Orders are made.
“Additionally, the fact that the 2006 (Foreign) Care Order was made and the threshold reached in that regard, in respect of the two daughters of (the mother) is significant.
“It is respectfully submitted that a balancing of the rights of the parents, whether under the Constitution or otherwise, the interests and welfare of the children herein to the respect/vindication due to their legal/constitutional rights for a safe, secure and protected environment in which to grow must be in favour of the granting of Care Orders. It is respectfully submitted that the right of the children to a secure and protected environment can only be secured by this court granting Care Order in respect of each of them until they reach 18 years of age”.
The guardian ad litem in her evidence supported an Order being made due to child protection concerns.
In his judgment, the judge said that in order to satisfy the threshold that the children’s health, development and welfare was likely to be avoidably impaired or neglected then past facts must be proved to enable the court on an objective basis to determine the likelihood of future harm, on the balance of probabilities. “Findings of the court in cases of such serious import as childcare proceedings must be based on facts proved in evidence and not suspicions,” he said.
“Evidence was given in this case on behalf of the applicant by current members and former members of the social work team assigned to the children by the Child and Family Agency. This evidence primarily related to the initial referral from (a social services protection team in another jurisdiction) to (a local hospital), further investigations and documentation received from (the other jurisdiction), contact and interactions with the parents, the children, the foster parents and the guardian ad litem. Reference was also made to the findings in the reports from the various experts engaged to carry out assessments on the respondents and the children.”
The judge said the CFA case was primarily based on the events relating to the parents in the other jurisdiction and the court orders made there. He said no evidence had been called by the CFA to seek to substantiate the serious allegations of child sexual abuse against the respondents or their alleged involvement in such abuse or their alleged failure to protect their child from such abuse while in the other jurisdiction.
“No evidence was called to prove the facts forming the basis of the Applicant’s case that these events were proof that the children’s health, development or welfare is likely to be avoidably impaired or neglected,” he said. “Reasonable concern or suspicion is not sufficient to enable this court to make Care Orders. This court only makes care orders on the basis of proved facts.”
He continued: “The court finds that the failure by the applicant to call this evidence, which is required to prove the case being made by them, is fundamental to the court’s determination in this case. If the court was to decide this case in the absence of evidence from (the other jurisdiction) the Court would be failing in its duty to vindicate the respondents’ constitutional right to a fair hearing as provided for under Article 40.3 of the Constitution. The allegations made against the respondents in this case are of a most serious nature, the proof of which would have a serious and detrimental effect on their good name and reputation.”
The extent of the evidence required to prove the threshold criteria for the purposes of making a Care Order was ultimately a matter for the judge hearing the case. It was a matter for the applicant to present the evidence with it believed was sufficient to prove its case and for the court to make its determination based on the evidence called by the applicant and by the other parties to the proceedings.
Evidence from other jurisdiction
There was provision under S 27 of the Child Care Act 1991 for the court on its own motion or on the application of any party to the proceedings by order to give such directions as it thinks proper to procure a report from such persons as it may nominate on any question affecting the welfare of the child.
The judge said that during the course of these proceedings it canvassed the views of the parties and the guardian ad litem as to whether a report should be sought from social services in the other jurisdiction relating to the child protection conference held with the parents, prior to their coming to Ireland, in relation to the unborn child. Having heard the parties and on reflection the court decided that it was inappropriate to do so.
He said that consideration had been given to this by the court in exercise of its requirement to carry out an enquiry into the welfare and best interests of the child. However, it was a matter for the applicant to prove the case and in the absence of any evidence from (the other jurisdiction) it would be inappropriate for the court to seek to make such an order.
In correspondence between the applicant’s solicitor and the respondent solicitor it was indicated at one stage that witnesses from the other jurisdiction were on the list of witnesses to be called. The court was informed that it was not possible for witnesses to be called from the other jurisdiction as they were not prepared to travel. The court indicated that facilities might be made available for evidence to be given by video link, but this was never sought by the applicant from the court.
“Therefore the court in its ruling found that in light of the legal authorities that it could attach little or no weight to the expert evidence in this case relating to historic documentation received from (the other jurisdiction), save the Care Orders in respect of the two children as these orders were accepted by the respondents.”
The judge said if it was the case that witnesses in the other jurisdiction refused or were not prepared to attend court in this case, “as was implied by counsel for the applicant, a very serious view would be taken by this court, which was charged with determining what was in the best interests and welfare of the children.
“If this is the case it is a matter which should be raised by the Child and Family Agency with the appropriate Government Ministers and their Departments to raise this matter with their Ministerial colleagues (in the government in the other country) as a matter of urgency. If necessary, the Court believes that a full investigation should be carried out as to what occurred in this case with a view to having proper systems and protocols put in place for reciprocal arrangements for witnesses from one jurisdiction to be called to give evidence in the other jurisdiction in future.”
Evidence had been heard from various experts who carried out assessments and prepared reports on the parents. The court, said the judge, must consider this evidence in light of its previous ruling that it was attaching little or no weight to evidence relating to historic documentation received from the other jurisdiction, save the court orders. Two professionals gave evidence of a risk assessment which had been carried out on the parents.
They would be willing to help and support the couple towards family reunification on conditions which included that the parents would engage in weekly therapy for a period of 18 months. Supervised contact would be greatly increased and the children would remain in care until and if a gradual and phased rehabilitation plan was in place.
A psychological assessment was carried out on the respondents on behalf of the CFA. This included a psychometric and a cognitive assessment. The opinion of the professional who carried out the assessment was that the mother had a limited ability to protect the children and provide them with a safe and stable environment and that “it was unlikely that the mother would be able to meaningfully engage and make the necessary changes in a timescale that would be of benefit to the children.”
Following an application by the parents, a parenting capacity assessment was carried out on them by two further experts who concluded that they were of a low risk of perpetrating a sexual offence in the future and recommended that the parents continue with individual therapy into the future.
The judge said the court was faced with a conflict of evidence in relation to the various expert witnesses and the findings and recommendations which each had given. The court took “the unusual step of requesting that the evidence given by the witnesses to the court would be transcribed and made available for consideration”. The court had read the transcript of the evidence given by each of the expert witnesses.
The judge said the court was making its decision in light of what was stated by Geoghegan in N v Health Service Executive  I.R.373 at page 556:
“It was not a correct approach for the High Court Judge simply to prefer one expert’s evidence to the evidence of another. He was bound to view the expert evidence in the light of the constitutional presumption in favour of the child being with the birth parents. In those circumstances, it would be rare that a finding of ‘compelling reasons’ would be appropriate where there was responsible and credible expert evidence favouring the application of the constitutional presumption.”
Therefore, in circumstances where he found the evidence by the professionals who carried out the parenting capacity assessment on behalf of the parents to be both responsible and credible and which favoured the constitutional presumption in favour of the children being reunited with their parents, and applying the principle set out by Judge Geoghegan, he was accepting their findings and recommendations. He also noted that the experts who carried out the risk assessment found that reunification was possible if certain conditions were met.
“Refusal to engage”
Another ground raised by the CFA in the case was that the parents had consistently refused to engage in any meaningful way with the therapeutic processes as recommended by the professionals in the case. “The decision by the respondents not to give evidence in this case has made it difficult for the court to reach any definitive conclusion as to their reason,” he said.
The judge said regard must be taken to what was said by Judge Hardiman in N v Health Service Executive  IR 374 at page 529:
“I simply cannot see how non-attendance on a particular expert can be reckoned as constituting or contributing to a breach of duty when a High Court order had made it perfectly clear that the applicants were under no obligation to attend that particular gentleman. Since attendance was optional, there is no obligation on the applicants to justify their non-attendance: they were perfectly entitled to, and did, consult an expert of their own. Both experts are competent and reliable people and there was never any suggestion to the contrary. I frankly do not understand what is meant by the observation that the applicants’ failure to attend the first expert led to a ‘discontinuity in the evidence’. The case did not, in the end, suffer from any insufficiency of evidence. But the basic point is a blindingly simple one: attendance on the named expert was, by Court order, optional: therefore omission to attend cannot in any sense be reckoned as a failure in duty”.
The judge went on to say that Judge Hogan in FH v Judge Staunton had set out the legal position in clear and unambiguous terms when he said in relation to Supervision Orders:
“Viewed against this background, it is all too obvious that s 19 give no such powers to the District Court to direct a parental capacity assessment of this kind or to direct that one of the parents partake in a course of psychotherapy. The directions to do so contained in the District Court order of 16th May 2013 must accordingly be regarded as invalid on their face.
Nor do I accept that s 47 of the 1991 Act could properly provide an appropriate legislative basis for such directions in respect of the parents had this section been invoked by the District Court for this purpose. Section 47 states: ‘…where a child in in the care of a health board, the District Court may, of its own motion, or on the application of any person, give such directions and make such orders on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order’.
“It is true that s 47 is, as McCracken J pointed out in Eastern Health Board v McDonnell  1 I.R 174, 184, ‘an all-embracing and wide ranging provision’. But the section is designed to give the District Court full authority to give directions to the HSE in all matters pertaining to the welfare of the child who is in care. Thus, for example, as happened in McDonnell itself, the HSE could lawfully be directed by means of a s 47 order to prepare a care plan for the child which was to be reviewed by a child psychiatrist.
“Yet the s 47 order must relate directly to the welfare of the child. The Oireachtas did not envisage that this jurisdiction could be used to impose obligations on third parties (even such as parents) to do certain things. Of course, removed from the general statutory context, it might be said that, for example, the child’s welfare would be safeguarded if an abusive or neglectful parent were to be directed by Court order to abstain from alcohol… Yet the Oireachtas cannot be taken as having conferred a power to impose personal obligations of this kind on third parties simply because there might be a link between the performance of such obligations and the child’s general welfare. The purely general language of both s 19 and s 47 provide altogether too slender a basis for that far reaching conclusion so far as third parties are concerned.
“Accordingly, for all the reasons I have already set out with respect to the s 19 jurisdiction, the generality of the language contained in s 47 cannot be invoked as to justify positive obligations of this personal kind in respect of persons other than the child itself. If there were to be such a power to impose personal obligations of this kind on parents and others in the interests of the child, very clear and express language would be required for this purpose. To my mind, neither s 19 nor s 47 of the 1991 Act enable the District Court to impose conditions of this kind on third parties. If the law here is considered to be unsatisfactory, this would be a matter of policy properly committed by Article 15.2.1 of the Constitution to the exclusive judgment of the Oireachtas”.
The judge said it was clear from these authorities that failure by the parents to attend therapy, which they were not obliged to attend, could not amount to such a breach of duty that could meet the threshold for a Care Order. There was no provision under Section 17 (Interim Care Orders) or Section 18 (Care Orders) which enabled the court to make an order compelling a parent to attend treatment or therapy. Failure to attend therapy might be relevant, however, where the threshold had been met and where the court was considering the making of a Care Order.
The role of the guardian ad litem
The Judge said this was clearly a case where a GAL should be appointed and it was difficult to understand why there was a delay of almost four years after child A and over two years after child B came into care before the GAL was appointed.
He referred to the CAAB guidelines of May 2009 which provide that the GAL’s role is to “independently establish the wishes, feelings and interests of the child and present them to the court with recommendations.” He said they outlined a dual role – to inform the court of the child’s wishes and feelings and to advise the court on the child’s best interests.
The parents’ counsel in his closing submissions had argued that when it came to how legal issues were to be addressed “any GAL appointed ought not be permitted to do anything other than present a report on the views of the child and how its interests are being served while in temporary care on foot of an Interim Order.”
The counsel submitted that the GAL should not be permitted to cross-examine witnesses or make legal submissions on the issues before the court and in particular they should not be permitted to urge a particular outcome, “as to do so would effectively render them a party to the case when they are not so, in fact or in law. Consequently, the respondents respectfully urge this court to disregard in full any questions asked by counsel for the GAL and any replies given thereto, and where it receives legal submissions referring to factual matters or the issue to be decided by the court that it ignore them.”
The judge said it appeared to the court that a GAL can be described as a person, appointed by the court, who “is independent of the parents and the Child and Family Agency, who establishes and promotes the wishes, feelings and interests of the child, in so far as is practicable having regard to the child’s age and understanding, and who expresses a professional view as to what is in the child’s best interests and welfare and presents this to the court with recommendations and advice as to what should happen the child.”
He continued: “If one accepts this definition as the role of the guardian ad litem then it would appear that the entitlement of the guardian ad litem to cross-examine is more limited than may be operating in practice in many child care cases before the District Court. Where facts in the case are in dispute between the Child and Family Agency and the parents, unless the guardian ad litem has been in a position to determine the wishes and feelings of the child, then the guardian ad litem should not become involved in the adversarial nature of the determination of disputed facts.
“Where the issue for determination is a matter involving the welfare of the child the guardian might, with the permission of the court, ask questions relating to this inquisitorial aspect of the hearing where such welfare issues are being considered. It would appear that the appropriate occasion for the guardian ad litem to ask such questions would be at the conclusion of the examination in chief and before the cross-examination of the witness takes place.
“The guardian ad litem will have an opportunity during the hearing to give evidence to the court and present to the court their findings and recommendations. Evidence given to the court by a guardian ad litem will be hearsay unless this evidence has been proved before the court or unless the guardian ad litem is giving evidence relating to information or admissions made to the guardian by a party to the proceedings.
“The role of the guardian ad litem is to advise the court on what the guardian ad litem believes in their professional opinion should happen in the best interests and welfare of the child. This advice is of particular benefit to the court as the guardian ad litem is independent of the parties. It is a matter for the court in light of the evidence presented by the Child and Family Agency, the evidence presented by the respondents and having regard to the advice given by the guardian ad litem to determine what is in the best interests of the child”.
The judge said it was essential to the proper working of the GAL system that the guardian ensured the independence of their role in their interactions with the parties and other witnesses. To illustrate the importance of the preservation of this independence he said he wished to draw particular attention to a number of matters which were of concern to the court in this case.
Recommendations had been made by the GAL for the termination of the telephone access between the parents and the children. This arose after child A had made reference to the fact that she had a sister. Based on these recommendations, the CFA had terminated telephone access.
“The court does not believe that this was the appropriate course of action for the guardian ad litem to take,” he said. “The guardian ad litem was appointed by the court and any concerns which the guardian had should have been presented to the court on the occasion of an Interim Care Order application. It should have been a matter for the court, having heard the concerns of the guardian ad litem and having heard the views and evidence of the parties, to determine whether the termination of telephone access was appropriate in all circumstances.”
He also referred to a meeting which the GAL had with the children’s social worker and experts who had recommended reunification of the children with their parents. “The court finds that it was inappropriate for the guardian ad litem to have met the professional witnesses with the social worker as there would be a clear perception as a result, on the part of the parents, which would have created a negative perception of the independence of the guardian ad litem in this case.”
He accepted that any actions taken by her were in accordance with her role but “any issues or concerns which the guardian wished to raise with the professional witnesses should have been done independently of the social worker.”
The judge also referred to an application made by the GAL for the appointment of a consultant paediatrician to review medical reports which had been produced in the case with a view to giving the court a report on their contents. The court had refused the application as it was too late in the proceedings. He said the responsibility to prove the case in child care proceedings was a matter for the Child and Family Agency.
“The court cannot stress strongly enough the importance of the independence of the guardian being safeguarded. The guardian must be seen to be independent of the Child and Family Agency and of the parents. Reference to these events is for illustrative purposes and the court finds that otherwise the guardian ad litem acted properly”, he said.
Remuneration of GALs
The Judge said he wished to express a view on a letter sent by Gordon Jeyes, Chief Executive of the CFA, to the President of the District Court relating to rates of remuneration and expenses paid to GALs by the CFA. In the course of the letter, Mr Jeyes stated: “I am, however, accountable for expenditure on behalf of the Irish taxpayer. Consequently introduction of the standard professional fee and a recognised mileage rate is seen as both appropriate and proportionate.”
In a letter sent to all GALs, Mr Jeyes had stated: “Given the specific role undertaken by guardians ad litem it is not for the Child and Family Agency to manage or supervise your work. It is the case, however, that Tusla is responsible for payment and is duty-bound to ensure value for money for the Irish taxpayer by recognising the inevitable sensitivities. As part of the general review of ongoing Court costs I have decided that it is appropriate for there to be a standard hourly rate for GALs.”
The judge said the letter seemed to represent a misunderstanding by the Chief Executive of the correct legal position in relation to costs of GALs which was provided for in S 26(2) of the Child Care Act 1991 which stated: “Any costs incurred by a person in acting as guardian ad litem under this section shall be paid by the Child and Family Agency. The Child and Family Agency may apply to the court to have the amount of such costs or expenses measured or taxed.”
“Any effort by the Agency to fix costs of guardians ad litem is not in accordance with the legislation and could be seen to represent an undermining of the independent role of guardians ad litem by the Child and Family Agency seeking to exercise a financial control in relation to guardians ad litem that it does not have in law,” he said.
Legal representation of GALs
The judge stated that to act as a guardian ad litem did not necessarily mean that person required legal representation “although a practice appears to have developed to this effect.” He said it was reasonable, because of the complexity of this case, for a solicitor and counsel to represent the guardian ad litem and he awarded her costs including legal costs.
The court found that in this case the CFA and its predecessor the HSE were entitled to seek an Emergency Care Order and Interim Care Orders having regard to the information which had been furnished and the child protection concerns arising from that information. This was a complex case which would have required detailed investigation and was not made easier by the necessity for extensive reports and documentation having to be obtained from outside the jurisdiction. “Further it was proportionate for the Applicant, in compliance with its duty under S 16, to institute legal proceedings,” he said.
The judge refused the CFA application for Care Orders and instead made a Supervision Order for one year.
In doing so, he said the Court was aware of the length of time the children had been in the care of the CFA and that the children had resided with the same foster parents since they were taken into care. “There will be clear challenges to be faced in this case to ensure that the children are reunified with their parents in a manner which causes the least possible disruption and effect on the children’s best interests and welfare,” he said.
He recommended the appropriate experts be engaged to advise the parties as to the appropriate manner and stages for the reunification to take place. The Court recommended that it would be important that the parents accept and implement any appropriate expert advice and assistance including if appropriate therapeutic support.