See also: Case 8. Child granted right as a party in High Court proceedings loses appeal to Court of Appeal against special care order
Background to the case
In spring 2019 a teenager [A] was allowed to join High Court proceedings as a party to those proceedings regarding the hearing of an application to extend her interim special care order. Her voice was already being represented by counsel through her guardian ad litem (GAL) but she wished to join the proceedings with her own direct representation. This request was granted by the court and she was appointed her own solicitor and counsel and the child viewed the proceedings via video-link from her special care unit.
When the matter came in for review two weeks’ later in the Minors’ List, the court heard that the teenager had a firm intention to appeal the order but now wished to retain a different legal team. Counsel for the CFA questioned whether the minor was entitled to any legal representation moving forward and whether it was in her best interests at all given that it would distract her from engaging with therapeutic services.
“Does the entitlement of representation continue?” asked counsel for the CFA. Furthermore suitable alternative lawyers would have to be identified within the appeal timeframe under section 25 Part V of the Child Care Act 1991 (power of the court to join the child as a party and costs of child as a party).
Counsel for the GAL said that the teenager had just conveyed her intention to appeal the order and her wish to have a different legal team to represent her, that she should be entitled to an appeal and that the lawyers would have to cooperate to get things done as quickly as possible.
The court heard that there had been no formal application under section 25 and that there would be logistical difficulties to meet the 28-day appeal period and additional costs.
Counsel for the mother said that she supported the child’s application.
The judge then directed that the current legal team would come off record and the child could instruct a new legal team for the appeal as she had already been given the right to oppose the initial special care order.
When the case returned one month later in January 2019, counsel for the CFA said that the girl was doing reasonably well in the special care unit and enjoying outings. The judge clarified that the GAL would continue to have a general role to represent the teenager’s views while counsel for the teenager would focus on the particular task of appealing the special care order.
Her counsel had been provided with notes from her previous counsel, which had been very helpful with regards to filing for the appeal the week previously, the court heard.
When the case was in the Minors’ List a month later, the court heard that the appeal of the special care order was to be heard in two weeks’ time. The teenager was still adamant that she should not be in special care but was engaging well in her unit, according to the GAL’s report. A possible step-down placement had been identified and clarification was needed on a timeline. Counsel for the GAL told the court that if the issue of a step-down placement was not clarified he would be seeking directions.
The case returned to the following week and counsel for the CFA said that they would need to seek to extend the special care order as it was due to expire and while a step-down placement had now been identified (and a placement offered and accepted) it would not be ready for over another two months. Counsel for the GAL said that they needed to know where the child would be going until the facility was ready for her [the building was undergoing renovations].
The following week, which was in the last week of February, counsel for the child told the court that the Court of Appeal hearing was the following day, while the CFA were applying to extend the special care order in a week’s time. He asked that the child be allowed to take part in the application to extend albeit the initial granting of counsel to the child had been limited to a once-off representation for the application to extend the original interim special care order.
Her counsel submitted that there was some argument in acceding to the request for further representation and the application to extend the SCO the following week given the unusual factors of the Court of Appeal hearing and lack of a finalised date for an onward placement. Therefore legal representation should continue although it should not set a precedent.
The judge said she would grant the same facility to the girl of representation with her present team for the purposes of the application to extend the SCO and made a new order to that effect and listed the matter for the following week.
During the application for a full three-month SCO extension a week later, the court heard that the mother was not opposed to the application subject to the judgement of the appeal and on a without prejudice basis.
Counsel for the CFA presented the background of the case and informed the court that once the child’s proposed placement had become operational as a high support unit (following its refurbishment) it was anticipated that there would be an application to discharge the SCO and an application to transfer the child to the unit. Until that time she continued to require the intervention of special care having regard to the criteria in section 23J of the Child Care Act because it would not be possible to treat her in other than a special care environment.
The extension of the SCO would allow for the continuity of therapeutic services to the teenager which was a critically important factor from a welfare point of view. Prior to her placement in special care there had been no engagement of the child in therapeutic services and significant progress had now been made in getting her involved with those services.
The teenager had a very distressing history and extreme behaviour which included acts of violence.
Counsel for the CFA referred to the report from her treating clinical psychologist in his application for the SCO extension. He told the court that the child had no significant relationship with her parents and growing up in such an environment would have had a massive effect of her perception of herself and others. The child had a profound mistrust of other people and thought it best to keep them at arm’s length, essentially treating people as though they were objects and her relationships were infused with manipulation and lies. She had an obsession with becoming famous which was a coping mechanism and she lived by a set of rules which she had created.
Her progress therapeutically was slow and painstaking but continuing and there would be a continuity of care in relation to her provision of treatment by the same team, once she had moved to her step-down placement.
Counsel for the CFA said the risk of harm continued to exist for the teenager and there was a real and substantial risk of harm to her welfare, development and health. She had had extremely traumatic experiences as a child that had deeply affected her and according to the clinical psychologist’s report an unstable personality disorder could be emerging.
The child had been in care for over six years and the issues she had to confront were extreme. Her recourse to suicidality and the express desire to hurt females were her greatest difficulties. “She sees us all as pawns to be moved and manipulated until she gets where she wants to be,” counsel quoted from the report.
The court heard that A required a higher level of support than mainstream residential care could give her which was why she needed a placement within a high support unit. Her profile would not admit her to a mainstream service anyway. As the identified high support unit would be able to provide her with a placement, an out-of-state placement was accordingly not appropriate. Furthermore she required a constant model of care and consistent involvement of the ACTS team, there was only one high support unit available in the state, it had offered her a placement and it would not be refurbished for another two months.
Consequently, the only placement in which her behaviour and care requirements could be provided for was her current special care unit. The ACTS team working with her there would be available to her after the move to her high support unit, there was an educational facility attached to it and it was the best and only model appropriate to meet her needs. There was a one hundred per cent consensus on this between her treating psychologist and two other psychologists. She had shown meaningful engagement in therapeutic services for the first time in her life and that process could not be put in jeopardy. Therefore it was in the child’s interests to have the special care order extended rather than move her to a mainstream unit until the high support unit was ready for her.
Counsel for the CFA told the court that although they were requesting the full three-month extension period they would undertake to discharge the special care order once the step-down placement became available. As it stood, he said, although the child was not a party to these proceedings, she had the rights afforded to a party and as such could bring an application if she believed the basis for the SCO no longer existed.
The judgment from the Court of Appeal was potentially due within the next three weeks.
The judge told the parties that if she were to grant the application today for the extension of the SCO and the Court of Appeal were to take a different view in their judgment of the appeal of the original SCO, then that would be the end of the matter.
The judge granted the three-month extension of the special care order, finding that the CFA had addressed the required proofs under the Child Care Act that had to be met for the purposes of the court to grant the order. She found that the statutory threshold had been met in the submissions of the CFA, the GAL was supportive of the SCO extension and counsel on behalf of the mother was also supportive.
The child had been afforded the benefits of being made a party to the proceedings for the purposes of the original SCO after instructing her GAL that she wished to instruct her own legal team to convey her views. She had written to the court opposing the extension and her counsel had instructed the court on her behalf that they were not opposing the extension but seeking the extension for a period of three weeks.
The child had said in her letter to the court that the fact her high support unit would not be ready for two months was not a valid reason to extend her special care order. The judge said: “That is not the valid reason per se but the court must look to the provisions of the Act itself and what is in the best interests of [A]. The social worker has set out the entire affidavit and the provisions, the risk of harm continues to exist and the benefits of special care are set out. The consensus is that [A] is engaging albeit slowly with the therapeutic engagements which are being afforded to her and that is a particular factor in this case given the particular background and her lack of engagement in mainstream care.
“I’m satisfied that [she] is benefitting from special care, albeit there is tentative progress but progress nonetheless. A submission has been made on behalf of the Agency [the CFA] that she will be discharged when the high support unit is available and until then an alternative placement is not in her best interests and contrary to her life, health and welfare. The court must weigh that as well as the access to education and therapeutic support available to her and that she is being diverted from the type of violence that she demonstrated heretofore.
“It would be contrary to her best interests if there was a third type of unit between [her current one] and her transition to [the high support unit]. All of the therapeutic support will be available to her in the ultimate transition there.”
While counsel for the child did not per se oppose the extension of the special care order, the conditions of his non-opposition were that the extension would only be for a three-week period.
The judge found that the risk of harm continued and the necessary statutory proofs had been met and granted the extension to the special care order for three months, finding it in the child’s best interests.
She told the parties that the court could exercise its discretion to extend the special care order if it was satisfied that the statutory criteria were met and if the Court of Appeal disagreed with the original special care order granted in late 2018 that would then bring to an end any extension “this court will make”.
The judge noted that an application to discharge the special care order could only be made by a parent, the CFA or the GAL and not necessarily the child but she added that did not see a procedural difficulty with counsel for the child urging the court to discharge the order at a particular date, if it was submitted the order should be discharged at that juncture for not meeting the statutory threshold as set out in the Act.
She made the extension of the order for three months with specific directions of an undertaking for counsel for the CFA to discharge the special care order when it no longer met the threshold and more particularly once the child had transferred to the step down placement in two months’ time.
The matter was put in for review in three weeks’ time with liberty to appeal in the event there was an earlier decision from the Court of Appeal. This gave liberty to counsel for the child to make whatever application he wished on the review date to see if the statutory criteria were met.
Counsel for the child asked to be appointed and assigned for that date as thus far he had only been appointed for the opposition applications. The judge allowed the counsel to be there for the purpose of the review although he had not represented the child for the purposes of the other reviews.
Three weeks later the review was held. Counsel for the CFA told the court that A was engaging well in the special care unit in education and therapeutic work. The onward planning for her move to the high support unit was now underway as reconstruction works were on schedule. Care staff from the unit had been spending time with her in her current unit and the child was of the view that even though the unit was not completely ready she was happy to move there.
Counsel for the GAL told the court heard that the child was a little fixated on the up-coming judgment, which was hoped to be before the end of the legal term. The GAL still maintained that special care was continued to be the correct placement for her.
The judge found that she was obliged to allow the child to be represented only for a limited purpose – for the right to bring the discharge of the application – otherwise the GAL would be obliged to step out of the proceedings.
At the next review date the parties had already heard that the Court of Appeal had given its judgment and upheld the decision of the High Court judge to grant the secure care order for the teenager. Now the emphasis for the social work team was on managing the transition from secure care to her onward placement. There had been a number of meetings and visits to her from the staff of the step down placement and A was engaged in the process. Her treating psychologist would continue her case in her new placement and her transition would begin over the next three weeks and before the next court date.
The barrister for the child told the court he had been asked to relay a message of personal thanks to the judge and that the teenager had said that she was fully engaged in the transition and she would not let the court down. The judge said that A had taken a very positive approach and was to be commended.
Three weeks’ later the CFA sought to discharge the secure care order as the teenager’s transition to her step-down placement appeared to be going relatively well and her behaviour no longer posed a real and substantial risk to her life, health, development and welfare.
The court heard that the Agency could provide care adequate to address her behaviour outside of the secure care environment in the new placement.
“The child is a diligent student, her capacity to learn exceeds the capacity to teach in terms of honours papers, so there is a possibility of her entering a mainstream school,” said counsel for the CFA. The application to discharge the order was made in agreement with all the parties including the child herself, the District Court was also engaged and any necessary welfare applications could be made there under section 47. The case was listed for one further review a month later and separate representation for the child came to an end that day. A was represented by the same GAL in the District Court has she had been in the High Court proceedings.
The judge told the parties: “I sincerely hope the transition that has taken place will continue and that [A] will continue to benefit from the arrangements and the therapeutic interventions, I wish her well going forward and also in her educational aspirations, so this time next year hopefully she will be worrying about revision for the Leaving Cert.”