In late 2016, a High Court judge, Ms Justice Reynolds, heard that a teenager was in her fifth period of detention in secure care and in danger of becoming institutionalised if she continued living in detention into 2017. During the hearing, the court was informed that no educational plan was currently available to her and that the provision of education would ultimately help her transition out of secure care.
After a number of hearings spread over eight months, where the court repeatedly heard that no educational place could be found for her while she was in a step-down placement, the court was told that the child’s father had withdrawn his consent to voluntary care, the CFA was not seeking an Interim Care Order, and the child had “voted with her feet” and gone home.
Judge O’Hanlon’s judgment
Previously to this in early 2016 another High Court judge, Ms Justice O’Hanlon, had held an inquiry into the provision of psychiatric services in a secure care unit and units in general because the child had written to the judge in what was taken by the judge as a letter of complaint.
During the inquiry, the guardian ad litem (GAL) for the child had raised an issue in court regarding the adequacy of provision of psychiatric services. “There has to be an appropriate therapeutic rationale for the detention of children for therapeutic purposes, absent that it is unlawful,” the senior counsel for the GAL had remarked. (See Case Histories 2016, Vol 1, No.4)
Subsequently, a protocol on Special Care Processes (SPC) was produced by both the CFA and HSE, five months after the judge first began the inquiry into psychiatric services for children in secure care.
The foreword within the produced protocol acknowledged that it had been developed at the request of Judge O’Hanlon in order to ensure that Special Care Order applications “made to the court clearly communicate the therapeutic approach the Child and Family Agency and HSE will adopt to address the issues underpinning those applications.”
The document defined Special Care as a “welfare-based Social Care intervention though placements are intensively supported with on-site education, vocational training, therapeutic supports and detailed Programmes of Care aimed at supporting young people’s timely return to the Agency community based Centres, Foster Care or home as soon as this can be achieved.” (See Case Histories 2016 Vol. 1, No.5)
When Judge O’Hanlon delivered her lengthy judgment in June 2016 concerning her review of special care in the case of this child, she noted that she had also spent time in residential care in the State and was “at this stage as a child in deep distress”. There were 2,000 pages of notes taken by the CFA during the girl’s time in secure care recording her movements, and the incidents and interventions.
In her judgment, Judge O’Hanlon noted that a Consultant Child and Adolescent Psychiatrist had given evidence during the hearing in March 2016 stating that the girl reached “the diagnostic criteria for a reactive attachment disorder along with a conduct disorder which could be understood in the context of her fraught and fractured childhood. And while she did not have a psychotic illness she did have psychological problems including an inability to regulate her emotions. As she was at an increased risk of developing a major mental disorder CAMHS should follow up with her in the future in terms of psychotherapy.”
Although the psychiatrist “admitted that there was a risk to [the child] of institutionalisation she indicated that the risk had to be weighed against the more extreme risk of death associated with [the child] leaving special care with her current lack of concern for her own safety and risk-taking behaviours.”
The judgment proposed to address a number of issues, these included “the systemic issues around secure care as highlighted by this case”, and “a plan for a step down placement for the minor for secure care to be developed in parallel with the educational and therapeutic interventions now available to her in special care.”
The judge had found there had been a risk of a lacuna in terms of provision of psychiatric services within secure care. She wrote: “In order to resolve the systemic issues around special care as highlighted by this case, this Court both welcomes and accepts the efforts made by Mr O’Brien which have resulted in the Department of Children and Youth Affairs having communicated as recently as the 9th June, 2016 that they are willing to recruit and put in place 0.6 of a consultant child and adolescent psychiatrist. This would be the equivalent of three days a week in terms of a working consultant psychiatrist, who will be recruited to attend each of the three special care units in this country once a week in order to alleviate one major systemic difficulty.
“That difficulty was that the CAMHS (Child and Adolescent Mental Health Service) was limited to children with a mental health disorder as defined by the mental health legislation and CAMHS is a service run by the Health Service Executive. ACTS (Assessment, Consultation and Therapy Service), on the other hand, is a service run by the Child and Family Agency and, to date, ACTS has not had the assistance of a child and adolescent psychiatrist within its remit. This left a risk that there would be a lacuna in terms of the provision of psychiatric services as identified by Dr Keith Holmes.”
The judge accepted the joint proposal of the CFA and HSE to appoint 0.6 of a working consultant psychiatrist.
In the directions made by Judge O’Hanlon in her judgment delivered on June 16th 2016 she noted: “It is now clear that a step down placement must be developed that is specifically tailored to the needs of this minor. The Court intends to further review such preparations… The Court has to fulfil its role in ensuring that an enlightened approach is taken to her future education. It is noted that this minor is considered to be bright although naturally she has had an interrupted schooling by virtue of her extreme behavioural difficulties over the last period of time but has now stabilised and therefore the Court must ensure that an informed view as to her future educational needs is taken.”
Hearings before Judge Reynolds
In late 2016, the High Court judge heard that the girl had been psychiatrically assessed and found not to be suffering from a mental illness but was found to show early signs of an emerging personality disorder. She had been abandoned as an infant by her mother and brought up by her father, who sought help from the State in 2014 due to her risk-taking behaviour as a teenager, and she was placed with the consent of her father in a voluntary care agreement in a number of out of hours’ foster placements.
Evidence was heard that the girl was now scared of being outside of secure care, and had found the open door policy in her step-down placements difficult to manage. The lack of a school placement in her last transition out of secure care had resulted in boredom and absconsions, during which time she frequently engaged in dangerous behaviour. On return to her step-down placement she had sometimes been under the influence of drugs.
During the hearing the court heard from the head of the secure care unit. In evidence, he told the court that the minor had transferred from a different detention unit in early 2016. When she had first arrived there had been a lot of self-harm and personal assault, however three months later the teenager had begun to thrive. She had sat her Applied Junior Cert and had done extremely well. Although at times her behaviour had escalated at their unit, he described her as a “fantastic young girl”.
The head of the unit explained to the court that the period after release from secure care was one that had to be planned for in advance in order to manage the risk of instability. All the doors were locked in the secure care unit, it was a safe environment, “when they leave there will be an escalation of behaviour, particularly an absconsion.” In general the risk was managed but some children did come back.
This case was one of the most serious the unit had encountered, the intensity of welfare issues that had led to her admission to special care on several occasions were at the high end of seriousness. Relationships would play a key role in a successful discharge for her and she was hoping ultimately to live with her father under a shared care arrangement. However the court heard that the child’s father had a lot of distrust in relation to the CFA and was currently not attending meetings with them due to a breakdown in communication.
It was clear from a letter that the girl had written to the judge handed into court that day that having access to her father was central to her wishes. The judge asked for all parties to be mindful of that.
“She feels that every time something happens she is punished by not being allowed to see her father, and it is a constant punishment to her,” observed the judge. “He was her primary carer up until she went to secondary school and assurances were given to her that she would return home to see her father. It is essential her wishes are borne in mind today. She feels her father is a very central issue in her life but there has been a complete breakdown of trust between the father and the social work department. Certain matters will have to be addressed before there is any reality to returning to his care on a full-time basis.”
The court heard that the girl’s father had not been allowed access visits to his daughter in her current secure care unit and that the unit could not facilitate access until they got the “green light” from the social work department. The fathers’ relationship with the social work team had broken down. During the hearing, the issue of access was discussed outside of the courtroom and the social work team and the father agreed to meet for mediation and work together in order for access to commence.
The head of the secure care unit told the court that the bespoke step-down placement to which the girl had been previously moved had been arranged through the purchase of a house and was located close to her family. The secure care unit had been happy to arrange a transitional plan post the Junior Cert as she was doing so well. However, the transition had been delayed by three months which had caused a lot of difficulty and when the girl arrived at the step-down unit no educational placement had been available in any of the local schools, both private and public. This had caused a dis-regulation in her mood.
She had begun to abscond from the step-down placement and it had been suggested that her father knew where she was. However the staff at the placement was concerned for her safety because the periods of absconsion were getting longer and an application was made for her return to secure care. The minor had the ability to engage in extraordinarily dangerous behaviour when she absconded.
The consultant psychiatrist who had assessed her on behalf of the local Child and Adolescent Mental Health Services (CAMHS) for the current period in secure care told the court that he had not found her to be suffering from any major mental disorder but that she was at risk of developing a disorder if matters continued. He described her as a vulnerable teenager, and had previously assessed her in an earlier stay at a secure care unit. He told the court that she had not been “too happy at being assessed” for the second time. He also remarked that she had started absconding from her step-down placement because she found it boring, because she wanted “more people to hang out and chat with.”
Currently the minor was not under psychiatric care, in his opinion “psychiatric care should always be in the grounds of mental disorder,” and he had not found her to have such a disorder. He did not agree that psychiatrists in Ireland were treating patients for personality disorders, a disorder which was outside classic mental disorder in Ireland.
Senior counsel for the guardian ad litem put it to the CAMHS psychiatrist that the girl had also been assessed by a child psychiatrist in a clinic who had found her to be deeply disturbed and showing signs of a personality disorder. The CAMHS psychiatrist would not comment however as he found that diagnosis to be speculative and non-specific.
Second CAMHS psychiatrist Dublin
A child psychiatrist of 16 years’ experience told the court that he had met with and assessed the girl eight months previously and did not think she had a clear psychiatric diagnosis. He said that she was likely to fall under the umbrella of a personality disorder when she got older. Currently, he found her to have troubling symptoms that were escalating over time.
His team of consultants treated people with personality disorders using dialectical behavioural therapy (DVT). These were a very unstable group of people who engaged in self-harm and overdoses. Treatment of minors with DVT was effective and cost saving, he told the court because it saved people being admitted to in-patient units and was therefore being trialled and tested for the under 18s. However, DVT was not universally available.
“When [the girl] absconds, she engages in risk taking behaviour, she puts herself at exceptional risk, very few people put themselves at such risk and so repeatedly. She is as high a risk as anyone is likely to see.”
He felt that she was engaging in such behaviour due to her sense of being abandoned, that she was trying to draw nurturers and care-takers towards her. He did not feel that it was pre-meditated behaviour but that it was a pattern, a default option that escalated until it reached its natural conclusion.
“She finds people that are highly troubled themselves and gets into situations that are dangerous because of that,” said the psychiatrist.
“She seeks out situations where she would be in danger?” asked the senior counsel for the guardian ad litem (GAL). “That’s right.”
The psychiatrist told senior counsel for the father that therapeutic input was desirable for the girl as she was someone who had had significant trauma in her life and was struggling to manage herself. However it could not be rushed or foisted upon her. Furthermore for the therapy to have a real possibility of progress she needed to be somewhere safe for a period of time.
The downside to the girl remaining in secure care was that there was a danger of her becoming bored and creating more disturbance. If she had no particular plan she could resort to old patterns of behaviour. There were a few months in it yet before this would set in for her, but she needed clarity.
Another option was a step-down placement with suitable staff which would get her out of the secure care unit into a slightly more normal way of life with a sense of momentum. She would have the opportunity to develop skills of independence and responsibility but the downside was that it also gave her more opportunities to make mistakes. “For some people like this girl, getting closer to what they want, they can’t handle the freedom very well.”
A third option, after stabilisation, would be that she would be allowed to go home and live with her father under shared care, however the psychiatrist was not sure if she could manage that freedom. Home was a situation where things had gone wrong previously and her father had sought help from the social work department because he could not manage. Furthermore, it was very hard to know if she could be kept safe if there was a reluctance on his part to engage with the services.
The fourth option was a placement abroad in a unit in another jurisdiction, however that was “effectively saying the state doesn’t have the resources to contain and help that young person and the only solution is to move the young person to the UK or Sweden.” Staff in those placements abroad were used to helping children with a lot of difficulty but this entailed moving a young person away from their environment and family. At the same time it also minimised the influence of the family on that person. It was an option of last resort, said the psychiatrist.
Senior counsel for the GAL remarked that almost any option had built in risk to it.
It was agreed with counsel for the father that the kernel of the problem was the lack of involvement by father, time had moved on and relationships had to be reassessed. It was extremely important that the father was included as feasibly as possible as he was her main anchor in life, albeit they had both acknowledged that he had not been able to keep her safe.
For now, the girl needed to stay in her secure care unit till after Christmas and then another option needed to be found that would keep her safe and provide the necessary therapeutic option.
Manager of the step-down placement
The manager of the bespoke step-down placement for the girl told the court that the staff had built a rapport with her before her move there in September. The manager had tried every school in the community, including private schools but could not get her a place.
There was trauma in her background that was not fully disclosed, leaving her seriously vulnerable. She felt that the open doors in the step-down unit were hard for her and because she did not have the routine of going to school she had chosen to go out with people her own age outside of the unit rather than stay and partake in the activities such as arts and crafts and cookery that had been arranged for her.
The educational aspect was important because it would give her a feeling of self-worth as well as structure. Although she was difficult at times, she was a lovely person and caring, she was also scared.
At the conclusion of the hearing, the judge noted that it was “vital an educational programme was put in place for [the girl] now that she finds herself doing hobbies as opposed to doing something meaningful. It would seem important it is in place before she goes back [to step-down] she had high expectations that there was going to be an educational plan, the knock on effect is that she was frustrated.”
“It may well be that the assistance of the court may well be sought on the question of her education, there has been no want of effort but they are not making progress in that regard,” said senior counsel for the father.
“There has to be an educational plan in place,” remarked the judge, “she expected it the last time and she was let down, she cannot be let down again.” She told the parties that the girl’s current period in secure care was “the last shot at getting it right” for the minor and things were at a critical stage, if it did not work out, alternatives [outside of the state] would have to be looked at. The judge said it was vital that an educational plan was put in place prior to her stepping down and that she was an incredibly bright child who needed to get back into the educational system.
She noted that mediation would now take place between the father and the social work department, in order that a non-adversarial approach could be taken to the breakdown in communication.
This period in secure care was a critical stage in the girl’s life, her welfare had to be paramount, concluded the judge. “If things aren’t working out, an alternative will have to be looked at.”
Two months’ later
Two months’ later the minor was still in secure care and no school placement had been obtained for her in conjunction with stepping down. Senior counsel for the GAL was concerned that the teenager was really not buying into secure care and that her placement would therefore have much less chance of success without schooling. There were no school placements in the area as the schools were full. “This needs to be dealt with quickly,” he told the judge, “whatever chance this has to work, time is of the essence.”
A notice of motion for the Minister for Education to attend had been filed, although the judge told the parties that she had not seen any motion papers. A barrister was present on behalf of the Minister.
The following week a barrister representing the Minister for Education and Skills informed the court that the Department had received three appeals under Section 29 of the Education Act 1998 in relation to the child. The schools in the location applied for were very oversubscribed which was a particular problem not specific to this particular child. Two of those three appeals had been inadvertently sent to the Minister first instead of the local educational training board and then re-directed. A decision by a school could be appealed to the board and thereafter upwards, he explained to the court, the Minister himself was removed from the process because it was a statutory process. The role of the Minister for Education was somewhat limited and it appeared that certain aspects should be dealt with by the CFA and some statutorily. On behalf of the Minister, he was opposing any application to make them a notice party.
A week later the CFA applied to have the minor discharged from secure care and asked for the motion seeking the Minister of Education to attend be adjourned generally. Counsel for the CFA told the court that the teenager was spending increasing periods of time with Fresh Start and had attended an interview at Youth Bridge when a place was available to her to learn English, maths, computers and OT courses. The minor was now moving away from secure care towards ordinary therapeutic inputs.
The child’s father wished for her welfare interests to continue on and his counsel asked for the motion to be adjourned, he was reserving his position in relation to the educational aspect.
The judge granted the order to discharge the minor from secure care and put the case back in for review within four weeks with liberty to apply. The girl moved to a step-down placement.
However, two weeks’ later the case returned to the High Court as the child’s father had revoked his consent to the voluntary care agreement under Section 4 of the 1991 Child Care Act. The court heard that no Interim Care Order application had been brought to the Dublin District Court and therefore there were no valid proceedings in the High Court, senior counsel for the CFA no longer had any statutory power and the judge also had no jurisdictional power.
Counsel for the GAL told the court that the guardian was profoundly in disagreement with the decision of the CFA not to seek an Interim Care Order in the District Court and that it was not just possible but probable that something serious would happen. Counsel for the father had no instructions.
The following week the CFA applied to have the case taken out of the Minors’ Review List. Although there was a long history to this difficult and complex case, the child had voted very strongly with her feet and gone home.
The CFA were still endeavouring to do its job, said counsel for the CFA however the guardian was in strong disagreement. A continuous review would take place by the social workers.
The guardian, who was only appointed in secure care proceedings, was discharged and her function ceased. The court had no jurisdiction to make an order and the matter was adjourned generally with liberty to re-enter under Article 42.a if something further were to happen.
Glossary: “step-down or step-down placement” is a residential open door placement for minors after they have spent a period in secure care.