Summary
A Circuit Court in a major city refused an appeal of Care Orders in respect of five children ranging in age from three to eight years old. The Care Orders had been made by the District Court following a lengthy hearing. Refusing to grant the appeal, the judge made a finding of fact that the children had been sexually abused and neglected by their parents, and that their health, development and welfare had been avoidably impaired or neglected.
The children came into voluntary care in spring 2013 and the full Care Orders were made by the District Court in June 2016. The Child and Family Agency (CFA) lodged an appeal of the access arrangements, seeking to reduce access significantly. The CFA was seeking access to be suspended for a period of 12 months in respect of the eldest children and then access to be determined at the discretion of the CFA.
In the appeal the CFA sought a finding of fact that the parents and another person sexually abused the children. There were further findings sought relating to neglect, attachment and trauma. Here the oldest is identified as A, the second B, down to the fifth child who is identified as E. The father [Father X] in the case was biological father to four of the five children.
The parents appealed against the Care Orders, seeking the return of the children.
The lengthy appeal heard 23 witnesses on behalf of the Child and Family Agency, as well as evidence from a guardian ad litem (GAL) and from the parents. The parents also called an independent forensic psychologist from another jurisdiction.
An initial application was made on behalf of the parents to exclude certain hearsay evidence from social workers and foster carers concerning statements made by the children. Under Section 23 of the Children Act 1997 hearsay evidence from children, depending on all the circumstance of the case, can be admitted. The court ruled that DVDs of interviews with the children could be admitted, along with evidence from people to whom they had made statements. The court refused an application from the CFA to admit statements made to a foster carer who was unable to attend court.
The parents had met when the mother was in her teens and the father in his early twenties. The mother was a child in care when she became pregnant with the couple’s first child. Both came from abusive backgrounds; the mother had herself been sexually abused and the father’s father had been convicted of abusing his sisters. The family moved frequently. There were concerns about inappropriate adults visiting the home especially the paternal grandfather of the children who had a conviction for child sexual abuse.
The court heard detailed evidence of prolonged and serious neglect of the children. This included their living in a succession of very dirty and chaotic houses, which were extremely cold in winter, not being toilet-trained and suffering from neuropsychological delay which was attributed by an expert as evidence of neglect. The four older children also exhibited disturbed behaviour, and three of them had intellectual disabilities.
The court also heard evidence of sexualised behaviour on behalf of three of the children, all of whom also made statements suggesting that their father had sexually abused them in the company of their mother. The allegations were strenuously denied by the parents and the evidence was challenged by lawyers on behalf of the parents.
In her judgment the judge said: “It is my finding that it is highly unlikely that a child who has not been abused would be able to give an account or display behaviour as detailed as the accounts given by [children B and C] … I find on the balance of probabilities that [B and C’s] claims that their father sexually abused them and that their mother knew of this abuse and actively participated in it are true.”
She also said: “I am satisfied that [A, B, C and D] were traumatised in the care of the respondents. I am also satisfied that they are insecurely attached to the respondents notwithstanding having spent their pre-care childhoods in their care. I am satisfied that [A, B, C and D] are at increased risk of significant mental health difficulties owing to their experiences in the care of the respondents and I am satisfied that if returned to the respondents the risk of significant mental health difficulties for [A, B, C and D] would be significantly increased.”
She made Care Orders for all five children until the age of 18, stating that this was proportionate to the risk they faced if returned to their parents without the parents having changed. She also found that their understanding of their responsibilities as parents had yet to emerge. Referring to the mother she said: “I do not accept that she would in fact co-operate with social workers or other professionals if her children were returned to her care. She has never done so in the past and there is no evidence she has changed.” The judge acknowledged that both parents had suffered significant trauma in their own childhoods.
The hearing: Section 23 application
The CFA made an application under section 23 of the Children Act, 1997 to admit the statements of the three eldest children. Counsel for the CFA explained that “the scope of the section 23 application was to allow for the admission of hearsay and section 24 of the Act dealt with the weight to be given to hearsay evidence.” He said it was clear from the reference to multiple hearsay that the court might admit statements of children made to foster carers, even if the foster carers did not come to court. This would simply be a factor to be considered as regards weight.
He said: “The interests of justice does not just include the interests of the parents but must include the children and the balance must be struck between the parents and the child. The mere fact that there is hearsay, or even multiple hearsay, does not of itself mean that the admission of hearsay is against the interests of justice. The child has the constitutional right of have his or her views heard further to Article 42A.4.2.” He said a process that excluded the voice of the child at a preliminary stage and does not even weigh the voice of the child in the context of the totality of the evidence risks breaching not only Article 42A but also the right to fair procedures of the child. Counsel said that the three eldest children were capable of giving an intelligible account of the events.
Social work team leader
The social work team leader said that it was not in the interests of the three eldest children to come to court to give evidence. She said that they were traumatised and had emotional and behavioural issues. She said: “If the hearsay were excluded, an injustice would arise.”
She explained that the children were vocal and made disclosures which were consistent and they needed to be heard. “If they were to come to court to give evidence it would not serve the interests of justice due to the age of the children as they would not be able to speak openly in front of their parents,” she said, “they need to feel comfortable.” She described the children as strong willed but said that they tell things to adults on their own terms.
When the children came into care child A suffered from speech delay but his speech soon became clearer and he made himself understood to the social workers, the team leader said. He struggled with concentration and his school reports were supportive of the view that he was able to give an intelligible account. He had been diagnosed with a moderate learning disability and could work independently but needed assistance which could influence his ability to give an intelligible account. She said he was capable of giving intelligible accounts due to the way he which he had explained the accounts.
The child had behavioural and communication difficulties but she maintained that this was not relevant to his capacity. He made statements all along and had lots of memories. Child B was capable of giving intelligible accounts due to the disclosures she had made to her foster mother. She made disclosures in relation to incidents which happened to the child C. With regards to child C she said that her speech was still developing but she was very bright and able to give an account. There were no concerns that she could not communicate as she was able to hold a conversation. Counsel asked the team leader if she knew of “any injustice occasioned by admission of the statements made by the children.” She replied: “The children’s voices must be heard.”
Neuropsychologist
A neuropsychologist said he had seen the children twice a month and then on a weekly basis. He said it was “not in the best interests of the children to come to court as it would be overwhelming for them.” He said that child A could explain what had happened to him in a sequential order. The child had referenced historical events and engaged appropriately without prompting. He never needed assistance with outing thoughts into context.
He explained that child A was “fragile from an emotional perspective and needed emotional support. If he was emotional he could hit out.” He said child B was able to give an intelligible account and agreed that young children could not evaluate timescales. He said that child C was capable of giving an intelligible account as there was a level of consistency in what she had said. The children had made significant disclosures and had been able to recall them accurately. He said that the passage of time needed to be taken into account. Child A had said that his father had hurt him. He explained that child A’s “primary difficulty was his emotional trauma as his concentration changes. He has followed stories and shown developmental concentration but has his good days and bad days.”
Counsel for the father asked if the capacity of child A to give an intelligible account of what had happened three or four years previously could depend on whether he was having a good or bad day. The neuropsychologist replied that it was “appropriate to look at the bodily reaction of the child, when he was recalling hurt his facial expressions would correlate with how he was feeling.” With regards to a child making a disclosure at such an early age, he said that a traumatic event leading to a strong response becomes encoded in the brain.
The judge interjected and said that the statements were admissible if the child is capable of giving a coherent account. She said: “The test is not based on age limit but on intelligibility. Evidence of credibility was a matter for the substantive hearing and that is not part of the section 23 application”
Guardian ad litem
The GAL said that she had been involved with the family since 2013. She said that all three children would be capable of giving intelligible accounts of the events. She said that it was easy to comprehend what the children were saying and they had asked to speak to the “nice lady”, the judge. Child A had expressed a wish to tell the judge that his parents should be in jail as they had hurt him. Child B wanted to tell the judge about her father “doing winky” on her and the putting “glue” on her. She said that Child C would be able to give an intelligible account of the abuse but she described child C as “extremely anxious who holds it together in school but becomes distressed fast.” The GAL emphasised that it was important that the voices of the children were heard.
The judge asked the GAL if she were to meet the children, would it be better to meet them away from the court. The GAL said that they were anxious children and they would find the building intimidating. She said that the parents should not be present if the children were to meet the judge. The judge explained in her experience, “children can handle meeting judges and it is of benefit of them to meet the judge.”
She said the purpose of the meeting was “not to gather the evidence as their story will be told by the evidence.” She stressed if the children told her evidence she would be capable of putting it to one side. “Where they have been asked if they want to meet the judge and an expectation has been created, it would be cruel to say that they could not meet the judge.” The GAL remarked that it was not in the interests of the children’s welfare in this case to have them come to court to give evidence.
Parents’ psychologist
A psychologist for the respondent parents analysed the reports in relation to the disclosures of the children. She said it would have been highly inappropriate for her to have spoken to the children as it was her role to assess what they had said. She said that her meeting either the parents or the children would “be another layer of influence.” She did not believe that any of the children was capable of giving an intelligible account and noted the harmful effect of repeated interviews and lack of free narrative. She said: “Young children are more susceptible to leading questions and leading questions provide information not already mentioned by the witness.”
The psychologist said that child A struggled to give accounts of experiences which occurred three years previously as he was then only four years old. She said that his disability was an issue and it was important to look at the way in which he responded to questions as he struggled with attention and focus. Child A was very engaging but moved from one extreme to another.
She noted that throughout the interviews, child A was “not interested in props until his interest was directed towards them.” She said that there were inducements in respect of child A as he was offered a “pleasant treat” after his interview. The effect of the children’s speech delay on their recall was “dependent on whether the children could verbalise the event.” She said that if the children “could not verbalise the experience at the time of the event, they would not be able to verbalise it at any time later.” She said that the disclosure that “daddy touched me” could be something which was innocuous or unclear as child A had bowel problems.
She also said that the children used “mammy and daddy” interchangeably for their parents and foster carers so it was not possible to know to whom they referred throughout the disclosures. She had grave concerns for child B due to the nature of the process and there was considerable suggestibility with regards to the disclosures of child B. She said that child C would not be able to give an account of incidents which allegedly occurred three years earlier.
The judge interjected and remarked: “Intelligibility refers to intelligibility of the statements at the time they were made.” She noted that during the interviews that child A asked for his foster mother and wanted her to accompany him. It was also noted that child C was accompanied by her foster mother. The psychologist said it “would have helped to have had someone not so close to the children, but someone whom they did trust, accompany them. It would have been better if they had been accompanied by a neutral person.”
She explained that her role was to “engage with the information elicited as it stands.” She said her approach was independent and she was there to raise concerns about matters that had not been positive. She said that elements of the interviews in the specialist sex abuse unit (the unit) were positive but there was very little to find in how this case was handled to allow her to comment positively.
The judge stated that she was making no determination as to the truth of the statements until she had heard all of the evidence, she was just deciding whether they should be admitted. She said that evidence of unfairness would be taken into account.
Counsel for the CFA
Counsel for the CFA said that section 24(2)(b) [of the Children Act 1997] referred to multiple hearsay and a person to whom hearsay is given does not have to be brought to court. He said that there was “a wealth of witnesses, including social workers, fosters carers and experts to whom disclosures were made.” He said: “Intelligibility is not a precondition for the admission of hearsay and the CFA is not applying [for admission of hearsay] under the age but the welfare ground with regards to the three eldest children … they would be able to give an account of the events.”
The children had given intelligible accounts and it was not required that every line of the account be interpreted. He said that the respondents’ psychologist dealt with intelligibility but confused it with reliability. The hearsay statements of the foster carers should be admitted as the most reliable statements of the children were given to their foster carers. The stress of the court environment, even by video link, and the confrontation that it could bring about with the parents, meant the evidence of the children [if given directly] was very likely to be less reliable than that which has been disclosed by the children to their social workers, foster carers and the GAL. He concluded “that being so, the interests of justice would not be served by bringing them to court.”
Counsel for parents
Counsel for the parents submitted that they relied on the evidence of their psychologist that child A and C would not be able to give an intelligible account of events relevant to the proceedings at the time they went into care, during the unit’s interviews, or now. It was also clear from subsequent statements allegedly taken from the children that the evidence of child C could not constitute a coherent account of her time with her parents. The statements of child A were equally incoherent.
It was submitted “while child B theoretically should be able to recall more than her sister, she was still only three years old when going into care.” Enable Ireland found in June 2013 that her language abilities at three years and five months were the equivalent of a child of two years and one month.” She said: “Given the passage of time, child B could not give an intelligible account now of what happened either prior to April 2013 or in December 2013.” Counsel asked: “How is the court to separate the wheat from the chaff or for that matter how is the court to decide what is wheat or chaff?”
Counsel said that the hearsay statements were not admissible in the case as the evidence of the children would not be admissible directly because they would not satisfy the basic threshold of being able to give an intelligible account of events relevant to the proceedings. It would be unconscionable to admit statements allegedly made by the children when the people to whom they are made are not being called to give evidence or are not prepared to give evidence.
“Those statements should also be excluded, as to deprive the respondents of their right to cross-examine those witnesses would be fundamentally unfair and in breach of the respondents’ right to fair procedures,” she said.
Ruling on Section 23 application
Ruling on the section 23 application, the judge said it concerned the admission of statements from the children. The allegations, if true, were very serious. The application under section 23 was brought by the CFA and by Dr [named psychologist]. The respondents called evidence to oppose the applications. For the purposes of the application it was conceded by the parties that giving evidence directly was not in the interests of the children.
It was submitted by the respondents that none of the children were capable of giving intelligible accounts of events either at the weekend of 13th December 2013 or prior to going into care, either due to their age, or lapse of time, or contamination of their memories by repeated interviewing. Statements were made to non-experts [social workers]. The CFA was seeking to rely on those statements. The respondents were also seeking to exclude statements made to the GAL, a non-expert. It was submitted that to admit evidence where it was so unclear would be so unfair as to amount to an unfair procedure.
The judge quoted section 23 of the 1997 Act, which requires the court to have regard to all the circumstances of the case, including the right of all parties to fair procedures. It had already been established that Section 23 is an exception to the rule against hearsay. Section 29 of the 1997 Act does not contain any age-limits on whether a child is capable of making clear statements. The judge said that the nature of hearings under section 18 of the Child Care Act 1991 was hybrid, both inquisitorial and adversarial. The essential test would be whether there was a threat to the health, development and welfare of the child, and not the truth of the allegations, she said, and the “best interests of the child” would be the paramount consideration. This was stated in Article 42 A of the Constitutions.
Section 23(3) 1991 Act provided for notice to be given to the respondents of the evidence to be adduced. That provided fairness and was sufficient to deal with the issue of fair procedures. It was in the interests of justice to include the right of the child to fair procedures as well as the rights of the parents. It was the right of every child to have his voice heard. It was the right of the child to have the best decision made based on all the available evidence, she said.
The presumption in favour of children being brought up in their family was a consideration in relation to the weight, if any, to be given to the child’s evidence. If a child of tender years made allegations of sexual abuse it must always be investigated. It was never enough to say it was only an allegation from a child. The allegation would seldom or never be sufficient, there must be evidence from parents, experts and others.
Each of the three children had the capacity to give an intelligible account. This was not to say all the children were intelligible, they were not. But they were capable of being intelligible. It was not to say they had given accounts that were intelligible or indeed credible. That would arise under Section 24 in the context of all the evidence.
If they are not recorded, “statements” included accounts which have been written down, the judge said. The lack of recording and the circumstances of the statements would go to the weight to be attached to them. The disclosure of the statements in advance was a significant protection for the respondents, along with the possibility of calling witnesses to refute them, she said.
In relation to who gave evidence – the adults to whom the statements are made should give evidence and be cross-examined, the judge ruled. “I do not accept that social workers, who received reports of this, giving evidence is sufficient,” the judge said. The person who heard the child make the statements is the person who should give evidence.
“In deciding what weight should be given to the statements, and when it is not in the interests of the children to give evidence, I will make an order for the recordings in St Clare’s and the statements of the people to whom the children made disclosures to be given in evidence. The guardian ad litem should give evidence at the end of the CFA case,” she said.
“The issues in this case were well-rehearsed in the District Court. I am not convinced it is necessary to hear every single allegation. To be absolutely clear – I am not allowing a report of evidence where the person who reported it is to be called. I am admitting the entirety of the recordings of the children by [the unit].”
Application to admit the evidence of the Foster Carer in the District Court
There was a further application of behalf of the CFA to admit the hearsay statements of children A and B to their foster carer. The application included the admission of the digital audio recording (DAR) of the evidence of the foster carer in the District Court hearing of the interim and care order applications. There was limited cross-examination of the foster mother during the interim care order hearing in early 2014, despite complaints from the foster mother that she was not there to answer counsel’s questions. She was later certified as having panic attacks and did not want to come to court due to what had happened to her previously.
In early 2017 the foster carer was diagnosed with a serious illness. Counsel for the CFA said: “The court has taken a careful approach to multiple hearsay and has decided that persons to whom children have made statements, including foster carers, should come to court to give evidence as to those statements. While this careful approach is operable where such persons are available to give evidence, account must be taken of the fact that the foster mother is seriously ill and undergoing treatment and is therefore not available to give evidence. The unavailability of the foster mother should not prevent the children’s voices from being heard in accordance with Article 42A.”
He said that the CFA believed that the most reliable recording of the children’s statements, as relayed by the foster mother, was its recording on the social work file since it was contemporaneous and professionally recorded. Counsel said an alternative or additional approach was to rely on the evidence of the foster mother in the District Court proceedings. This had the limitation that many disclosures were not recalled by the foster mother in her evidence and where she had reported them at the time to the court, she did not make notes of them. “The evidence given in the District Court proceedings by the foster mother also had extensive evidence of sexualised behaviours and the behaviours cannot be admitted under section 23,” he said. He concluded: “This appeal is between the same parties and concerns the same subject matter. The foster mother is unavailable to give evidence and therefore her evidence given on oath in the District Court is admissible.”
Counsel for the parents argued that the foster mother informed the social worker that she was not willing to return to give evidence. It was argued that the credibility of the foster mother’s evidence was essential due to the over-reporting of the unit and the reports of extreme sexualised behaviours were at odds with the school reports of the children. Counsel for the parents said that insufficient evidence was given to the court as to the availability of the foster mother to give evidence.
The judge said that there was “no evidence as to her fitness to give evidence but just two letters stating that she was unfit but not explaining why.” The parents’ counsel said that the matters before the District Court and the Circuit Court were not the same. The matter before the Circuit Court concerned a full care hearing where the court was being asked to make findings of fact that the parents sexually assaulted their children in their care and to deny the four eldest children access. The evidence before District Court in the full care order application was not admissible as the foster mother refused to be cross-examined.
Counsel said: “During cross-examinations many inconsistencies and inaccuracies emerged. It is submitted that the evidence given by foster mother during the Interim Care Order hearing should not be admitted as the respondents were not in a position to adequately test the evidence during the Interim Care Order hearing, as disclosure had not been made.” Furthermore the court would be deprived of an opportunity to observe the demeanour of the witness while giving evidence and particularly while under cross-examination.
The judge said that she was not bound by the finding of fact of the District Court and was required to make her own finding of fact. She said that the unavailability of the foster mother to come to court was supported by two letters. One letter stated that she was unable to attend and the second letter stated that she was unable to attend and was seriously ill. From autumn 2015 the foster mother made it known that she would not return to court and that information was not made available to the respondents for some time. The respondents could not complete the cross examination of the foster mother.
The judge said that she “accepted that the foster mother was unable to give evidence but that did not mean that she was unavailable.” The judge said that she would have to balance the rights of the respondents with the rights of the child. She said that the “respondents intended to put the credibility of the foster mother into question.” She said that she was not satisfied to admit the statements of the foster mother without cross-examination. The care order hearing in the District Court and the Interim Care Order hearing were not the same. The judge concluded that the foster mother could give her evidence by video link or on commission.
The substantive Care Order hearing
First social worker
The social worker said that she became involved with the case when the parents had relocated from another part of the country. When she first visited the home in 2012 the parents had separated and the mother was expecting child D. There were child protection concerns whilst the family lived elsewhere. The mother mentioned that another man could be the father of her child D and said that she was fearful of this man. The social worker noted a lack of interaction between the mother and the children and that the mother only responded when child A was screaming.
The mother said that she was interested in the children being taken into care before she was taken into hospital to have child D. The social worker explained that on the day the children were to come into respite care the father was upset. The children reacted to respite “very differently overall.” Child A bit his foster carer while children B and C were described as “very challenging” but the foster carers were more able to work with them. Children A and B had words but never verbalised with each other, they got attention in other ways. They were not inquisitive and would have watched television all day. The social worker said that she neither saw toys in the children’s home nor witnessed the parents engaging well with the children.
The second period of respite involved a different carer. On the third period of respite the children B and C went to a carer while child A remained at home. The children remained in respite for two weeks while the mother was due to give birth to child D. The social worker said concerns about neglect emerged following the birth of child D. She carried out a home visit and said that the house was “dirty and cluttered, there was clothing covering the couches and the children were often in their pyjamas.”
She conducted an unannounced home visit following a referral. She asked to see the house and was allowed to look at the bedrooms and noticed that in the bedroom of child A there were duvets covering the beds instead of bed sheets. The house was described as cold. An environmental health officer reported a strong smell of faeces in the home and described the house as chaotic and unhygienic and left “feeling very uncomfortable.” She said the environmental health officer sent a referral by email to the social worker regarding her concerns.
She noted that the father was capable and in control of the children. She said that he was “doing his best, but was unaware of the neglect.” On a subsequent visit the social worker said that it was evident that a clean-up was underway when she arrived. She explained to the family that there was a need for routine and structures. The social worker wanted to arrange an appointment for the child protection conference and the father stayed at home with the children while the mother attended the conference. She said the mother “recognised concerns, was honest at meetings and agreed to cooperate.”
On another unannounced home visit the children were wearing coats. The children were often in heavy nappies and she noticed Child D was sleeping in the pram. The family support worker noted on a home visit she found the parents had been sleeping downstairs. The parents said that child D had been unsettled and the parents maintained that they did not want to disturb the other children. The family support worker suggested that one parent ought to remain upstairs with the other children. The mother said that it was too cold upstairs.
The social worker said the prospect of a Supervision Order was broached with the parents if a lack of engagement persisted. The mother was perplexed at the prospect of a Supervision Order. The social worker noted at another unannounced home visit she saw some improvement. The children were dressed and the television was off but the house was cold. She arranged to inspect the bedrooms and found that the beds were appropriately dressed.
The social worker said the father was not very welcoming of the intervention and the mother had to correct him for being threatening. He told the social worker that he did not respect the views of the social work department. The social worker said that the parents “flat out refused to attend a parenting course as they were of the opinion that the social department said that they were not good parents.” The mother said that she would not go as it would upset the children’s routine. The idea of respite was discussed again, both parents were opposed to it.
The father was of the view that foster carers sexually abused children. The social worker explained to him that respite would not be viewed negatively and it was appropriate and positive for parents and children. The dogs had free rein of the house and the young pup was hyper. The social worker said she was fearful the dog would snap at the child D who was on the floor. She explained at the child protection conference there was a recommendation of a Care Order and the CFA was of the view that a care placement was needed and the parents would consent to voluntary care. A transition plan was agreed with the foster carers and parents.
The social worker said that the children transitioned well but did not want to return to the home following the second occasion. She said that she later called to the house in order for the parents to sign the children into voluntary care and was refused access to the home. The father said that he hated the social work department and was argumentative. The social worker explained that she conducted four unannounced home visits and the purpose of the visits was to “follow up and inform her assessment as to the true environment the children were living in.” She said that the parents had made considerable improvements but that the improvements were never sustained.
Consent for voluntary care was revoked in 12th December 2013. The social worker said “overall the children were behind but the speech of child A and B stood out.” The father said that he didn’t see the delays and saw no difference between his son and his nephew who was of a similar age. Child A was subsequently diagnosed as having a moderate learning disability and he attended a review with the senior medical officer and was referred to the early intervention team. He was assessed by three clinicians and deemed acceptable [for early intervention].
The meeting was arranged but the mother cancelled. A speech and language therapist said “the consequences of changing the appointment caused a further delay of another month and the delay had knock-on effects.” She explained another meeting was not attended by the parents and it was rescheduled when child A and the mother “attended the appointment but were 25 minutes late. The appointment was scheduled to last for thirty minutes and subsequent appointments were missed without notification.” The following month there was a referral to Enable Ireland for child A. The mother refused to consent to the release of the report and was concerned about the social worker contacting Enable Ireland services. The referral and report was ultimately sent to Enable Ireland when the social worker obtained the consent of the mother.
Access Worker
An access worker said she carried out 94 access visits in 2015 and 10 in 2016. When the Care Order was made she explained that access was reduced to two access visits per week. Access was in the CFA office and then moved to the home of the parents. Access was then changed to fortnightly and then monthly by the judge. She explained her role was to provide guidance before and after access.
The parents consistently presented as not ready for access and the parents were advised to have the fire lit one hour before the children arrived in order to have the house heated. She said that there was an improvement in the condition of the house on subsequent visits but that the sitting room was the only room available for access. The parents had financial struggles but they never linked with MABS despite being advised to do so. The mother told the access worker: “When the children were with me money was not a problem.” The parents’ aggression was concerning at times.
The social worker described an incident when the mother had called child A and he had failed to respond. The mother carried him in and the access worker observed the child walking out of the house towards his foster carer holding his neck. He said that his mother was bold and she had slapped him. The mother was rarely observed cooking healthy meals and the children were often given food that was too hot to eat. She noted that the father often removed himself from access and only joined access when the mother told him to join in. He said that he removed himself in order to give the mother some time with the children.
On another occasion she noted that the child A wanted to go to the toilet on his own, but the father said that he would go upstairs with him to the bathroom. The access worker attempted to go up the stairs with them and noticed that the father appeared to be veering off towards one of the bedrooms. The father warned the access worker that she needed to go back downstairs. The mother came upstairs, told the father to go back downstairs, and placed her hand on the back of the access worker. She felt as if she would be pushed.
Foster carer of child A and B
The foster carer for children A and B said that the children had started their transition into care in 2013. He spoke with the children and they had no problem getting into the car with the foster carers and were not upset leaving their home. He said when they arrived at the foster carer’s house the children were “all over the place” and “all hell broke loose.” He said that they ran and could not settle. Their clothes were ragged and ill-fitting. Child A had shoes which were too big and he suffered from ingrown toenails. Child B was described as having long stringy hair and cradle cap.
He said on the second occasion the children came to the house they did not want to leave and were shouting “no, no” and had to be carried into the parents’ house. On the third occasion the children came to live for a longer period with the family and they never asked for their own parents. Child A frequently cursed and the foster carer noted that he had heard the mother using bad language in front of the children when he collected them from access on one occasion.
Child B’s language was described as “much the same” as her brother. He noted that the children could not sit at the table and they would cover their food with their arms, they could not use cutlery. The children had black marks on the back of their legs which turned out to have been caused by dirt. The foster carer said that when they tried to bathe the children they would screech and were terrified of water. They could not use a toothbrush and would not allow the foster carers to put a toothbrush or toothpaste in their mouth.
When visitors came to the home, the children would hide under the table. Child A would greet female visitors while child B stood back. Child A reacted badly to touch and would scream. The foster carer said: “He did not trust anyone in the beginning of his placement but his behaviour soon improved.” His ability to play on his own improved and he liked to peddle his toy tractor. The foster carer said that they had taught child A to use the toilet and get out of nappies. His language improved over time in that he began to ask for things and was able to complete a sentence.
Child B was easy to toilet train and was eager to please. When she first arrived, she would sit in front of the television completely zoned out and could not form words. She did not talk and was sick. The foster father remarked that child B “becomes whingey and shouty when the social workers call to the house.” She was progressing well at school although she was slow to make friends. The foster carer said that both sets of foster carers had gone on holiday together and had sibling access with the children but that they never discussed the disclosures of the children with each other.
Foster carer of children C and D
The foster mother for children C and D said that she took notes while the children were in her care. She said when the children came into care they would roar and fight. Child C could not walk, only shuffle, but she started walking independently within two to three weeks and she slept well. When she first arrived she “would not look at you and was distant.” She did not like having her nappy changed and would pull her legs close to her chest. She was petrified of male visitors and would scream so that they would have to leave.
The foster mother noted that her “emotions would change so quickly and she would cry but that it was a different type of cry which came from the bottom of her belly.” Child C “got better about changing nappies, was calmer and sleeping better.” When she was toilet trained, she would not allow anyone to go beyond the bathroom door. Her language and vocabulary improved and she started to talk. She improved with visitors calling to the house.
Child D came into care when he was six months old. He was not able to sit up straight and was gaunt. He would constantly stare at lights, would not react to noises and never cried. She said that he picked a tile on the floor in the kitchen and would lie on that tile as if it were a “safe haven.” He too could not cope with male visitors but soon improved.
The foster mother recalled a night in December 2013 when she saw the outline of a male figure at the gate of her home and knew that it was a relative of the father. The foster father answered the front door to the man. She said that the parents produced a piece of paper and were looking to have the children returned. The foster mother said that she was unaware that the parents had withdrawn their consent to voluntary care and were taking the children home.
Both sets of foster carers described the children as looking completely different following their weekend at home with their parents. Child A and B looked “grey, tired and their behaviour was all over the place.” Child C “looked sick, had a pale complexion and had a dirty face.” She said that in the days that followed, child C was a “different girl” as she could not sleep and could not cope with lights. It took a long time for child C to settle and she woke up every night. The foster mother reported that child C exhibited unusual behaviour at bedtime as she was calling out her father’s name. If the foster mother went out, child C would be very angry and hitting out. This behaviour persisted for a long time. She could not look at any one and was described as a “lonely soul.”
Child C struggled with access and used to say to her foster mother: “Won’t you be back, mammy.” It took a few days for her to get back to normal following access. Child C had improved in her ability to soothe herself as previously it would take a long time for her to calm down. The foster mother said that child C struggled with Christmas. On her first Christmas in care she could not cope and had to keep away from the children but her behaviour improved the following Christmas.
Child D had trouble sleeping following his return home. His behaviour changed in that he was angry, would hit his head on the fireplace and bite his foster mother. She said that his behaviour improved once access had been reduced. She described child D now as a “lovely little boy who loves crèche, his friends and tractors.”
Second social worker
The social worker for children A, B and E said that the initial outlook of the case was one with a view of reunification. She said that the parents were motivated and interested in meeting with the social work department. There was an assessment to ascertain the motivational capacity of the parents and to establish the potential for reunification. She said that there was an improvement in the children both developmentally and physically since they had come into care. There were concerns about sexualised behaviour of the children.
The mother told her that the father and his friend engaged in a game where they would flick each other’s genitals. She said that child A saw this and was touching his genitals. The social worker explained that child A looked at females as “sex objects” and he had exhibited his sexualised behaviour on a number of occasions. She noted that he had poked various people on the bottom, including child D and his mother.
On another occasion child A pushed himself up against the social worker and said: “Bum bum winky.” He had also been found to be in the bedroom with a folded pillow into which he was thrusting himself. There was an incident where child A began thrusting himself against his foster mother when she tried to retrieve a spinning top and he said “winky bum.” On another occasion he pointed to the genital area of the foster father and said: “That is your winky and that’s my winky.” Child A was in his bedroom in his foster home and said: “I do winky, all white glue”
Child A continued to say: “Mammy do this and I die.” He said this while grabbing his neck and said: “Mammy bite.” Child A had an obsession with the colour blue and the number four. Child B made some concerning statements and had a traumatic time in that she was screeching and was in convulsions and talking about a man. The social worker noted an incident following access where child B had touched herself when the father put her into the car to return to her foster home. The social worker said: “A lot of children have sexualised behaviours but that does not mean that they have been sexually abused … sexualised behaviour could also be a symptom of severe neglect.”
In late 2013 a forensic medical examination was arranged for the children but was later cancelled as the parents refused to give their consent. Child A was talking about parents putting tape on his mouth and referred to others in the bed. The social worker spoke to the mother about the behaviour of child A and indicated that she did not think that either child A or B should return to access. The mother was defensive and acknowledged that child A had aggressive behaviour but there was no reason why child B should not go to access. Child A had said that he did not want to see his parents.
The social worker said that it was uncommon for younger children not to want to go to access. She had no concerns that the foster carers were discouraging the children from going to access. She said that the children were very demanding and difficult to manage on a one to one basis. The social worker concluded: “If the behaviour of the children had been better managed in the early years, they would not be so difficult. As the therapeutic needs of child A have not been addressed, there may have been lost opportunities,” and she said that residential care may need to be considered. If therapeutic residential care was suitable to the needs of child A she said that she would not be opposed to it.
The social worker noted two incidents which occurred with regards to child A and his foster father in April and October 2016. In April 2016 An Garda Síochána were called as child A was reported as being left outside the front door. She said: “I at no time in the records made a note of the incident but the neuropsychologist did.” She said that the foster carers had informed her of the incident and they had expressed concerns about the anger of child A and questioned whether his placement was appropriate.
She accepted that the foster carers were not receiving enough support as child A had presented with challenging behaviour and she was advised by the neuropsychologist that child A required sensory stimulation. The foster father said that he had had a difficult evening with child A and that he was very sad about putting child A outside the front door. The foster father was close by to keep an eye on child A.
The social worker said that the foster mother contacted the social work department and was very angry and frustrated as she expressed a concern that the needs of child A were not being met. She expressed a wish for a return of child A to the CFA as he was not getting the help that he needed. “I know that attachment is key for [child A] and residential care does not provide the natural attachment that foster care does,” the social worker said.
In October 2016 child A struck a YAP worker and his foster father. He was again placed outside the door while the foster father spoke to him. She said that she did not consider this an incident as the foster father was trying to manage child A as best he could. The incidents were never recorded. She said: “This form of management was far from ideal but I do not know what else the foster father could have done while he [child A] was behaving in such a manner.” She said she would have been more concerned had the foster carers restrained him. She said that she was uncertain whether an alternative could be provided for child A.
Third and fourth social workers
The social worker for child C and child D recalled the difficulties the children encountered at access time. Child D was sad and took a long time to settle, he needed a lot of hugs from his foster carer while Child C asked her foster mother if she would be at home when she returned from access. Following access, child C was reported as being very angry by her foster mother. She was described as agitated and the worst she had been.
The social worker explained that she was contacted by the foster mother following the first day of the District Court hearing with regards to allegations that child C had made. The social worker said that she did not engage with the child as she was cross and demanding. She later made a home visit in order to talk to the child. The child had her dolls out and appeared agitated. There was an extremely difficult access. She picked the children up and they were in good form for most of the journey to access but after they passed a certain part of the road the children became upset again. Child C was cross, demanding and shouting. When they reached the destination of access, the child ran around the car park and had to be restrained. She was out of control. The parents had to be called up to access at the CFA office.
The parents came into office and it was explained to them the child C was angry and that it was not a good idea to take the child to the park because she needed to settle down first. She said that the child “needed to be taught to calm down and regulate in order not to put herself at risk.” She eventually calmed down and it was acknowledged that the parents did not have any awareness of the behaviour of the child. They went to the park and had a good access visit. Child D wandered off on his own and the social worker noted that the parents did not pay much attention to child D. She said that the foster carer had to be called due to the difficult behaviour of child C.
The foster carer then arrived at the office to collect the children. The social worker explained that she was required to transfer the children to and from access but she said that she “was not the right person to bring child C back” on that day due to her behaviour. The father noticed that the foster carer collected the children and the social worker explained that she later received notification that the CFA was in breach of the direction of the court with regards to pick up and drop off at access.
She recalled another access which took place at a fast food restaurant as a birthday party for one of the children. She said child C would not get out of the car. The visit was described as difficult. It was worse for child C. The children were running and screaming around the restaurant as the parents tried to manage their behaviour. The behaviour of child C became more dramatic and she became hysterical. Child C was running and the father lifted her up and put her on a couch. She explained that child C “could not get off the couch and this in turn caused her to become hysterical.” The father stood over her and child C went under the table and cried. The social worker got down to talk to the child and rubbed her back to reassure her. The child kept shouting “bold daddy”. The father at this point became annoyed. She said the father tried to wind the child up more.
The child was distressed on the way home and said: “Daddy fight with me, I don’t want to see them.” She said that she had extreme concerns with regards to access. She had ongoing concerns about the father’s anger. At a reflection meeting the parents refused to accept responsibility for the difficulties at access. There was no acknowledgment of what had happened. She noted another access and described it as a very difficult visit. Child C was at the door and was screaming that she did not want go. The social workers said that it was not in her best interests to go to access.
Child C had begun to exhibit unusual sexualised behaviour. Her foster mother reported she had been grunting in the car and thrusting herself against the seat belt in the car, saying: “[Child A] fuck, daddy fuck, fuck with fingers”. The foster mother was of the view that her thrusting was of a sexual nature, that the child had something she wanted to say.
The social worker called out to the foster home on another occasion, she said it was the first time since the access at the restaurant. She said that child C and D were in good from and were settled to the fact that there had been no access the week previously. Child C was having fewer tantrums while child D was laughing. The children were hesitant to leave to go to access. The social worker said that she received a text from the foster carer that child C was “all over the place” following access. She phoned the foster carer and could hear child C in the background. She said that child C “needed to talk and that if she told her she would call her back she would have lost the moment.” The social worker typed as the child spoke.
Child C said that she did not want to see her parents any more. She said that the father had put “stick up her bum” and hurt her. She said that “boys have stick” and she was distressed, crying and stuttering. She noted that child C stuttered when she was stressed. The social worker said that she did not know at the time to what “stick” referred but she later found out that child C was referring to penis. The social worker said that she was able to have a full conversation with child C and was not concerned about her speech.
The child went on to say that they put “sticky” on her mouth. The social worker explained that she did not know what that was but the foster carer told her that the child was pointing to sticky tape. She said “daddy put sticky on me.” She said that her mother, father and maternal aunt had masks on their face and masks made her sad.
The child said that they put her in the bed and put “sticky” on child A, child B and child D. She told them to stop but they did not. They touched her bum. She said that the mother, father and aunt put her on the bed and she was sad. She said that they “hurt” her and she did not want to see them. The social worker said that she knew that the child was speaking from her own experience and that she was not a coachable child. Counsel asked if there was an opportunity for other factors to influence the child. She replied there were not. She said that it was credible what the child had said as the maternal aunt had been staying with the parents at the time.
The social worker completed a home visit following the disclosure. She said that child C did not greet her and cried. Her foster carer had to comfort her. She described child C as very controlling. During the home visit child D was playing with his foster carer. She said that child C went into sitting room. She had a roll of dress labels and she took four dolls. She said that she did not want the foster mother to leave. She was stuttering and said that she wanted to tell her story. The social worker noticed that child C was “very hyper-vigilant and listening to sounds.” She would not allow her foster father to come in to the room.
She referred to her story many times and the social worker said that this was when she was speaking of the abuse. She brought in the dolls and covered them. She put a dress label over the mouth of the doll and she was acting out what she had told her on the phone. Child C went into the kitchen and got a walking stick. She then placed the doll face down on her lap and put the stick on the doll’s bottom. The social worker said that there was a poster of the “Inside Out” movie on the wall of the room. Child C pointed to the movie and identified the characters as “daddy and winky.” She continued to play, took spoons and pushed them in to the doll’s bottom. The social worker said that the child was angry and frustrated throughout the disclosures.
Counsel asked if “the disclosures made by the child could have been as a result of sibling access she had had previously.” The social worker replied: “The children had sibling access in September and they saw each other in December but to have recalled something in this much detail was not something that child C could have picked up at access.” The CFA then revised its findings of fact in respect of the mother.
She said that the CFA was very cautious in respect of the allegations as there was an abundance of statements and it was the conclusion of the CFA that children A, B and C had been sexually abused. There was nothing in respect of child D as she had been too young in terms of evidence and memory. She recommended a Care Order for the children as they had suffered chronic neglect, child sexual abuse and were highly traumatised. The social worker said it was her conclusion that the children had been sexually abused by their parents and another individual.
The former social worker for child C and D said that she too had concerns regarding the sexualised behaviour of the children. There was a Garda notification of the information provided by the foster mother in respect of disclosures made by child C to the foster mother. She said that no issues arose following the welfare check and An Garda Síochána reported that they had no concerns.
Consultant Paediatrician
A consultant paediatrician specialising in child protection told the court he had written three reports on Child C over the past two years. He first saw the child following allegations of neglect. He then saw the child following allegations of child sexual abuse, in the light of concerns from social workers about sexualised behaviour. He said he was looking for forensic evidence, for example, semen or DNA. He obtained consent from the parents for the examination.
He said he did not always carry out a forensic examination when it is sought, it depends on other professionals. Most examinations do not contribute positively to an investigation. They can give false reassurance and they are intrusive for the child. In this case he decided on the examination based on the reported sexualised behaviour.
He found a visible skin tag on the anus of the child. The location of the skin-tag, according to the literature, was indicative of abuse. Skin-tags are also found in children suffering from constipation. They can be caused by acute trauma to the anus, causing an injury and re-growth of tissue. The child also had a dry skin condition. Most children allow such an examination which, while intrusive, takes minutes. Very few objected. However, C objected. The results were therefore not as complete as the doctor would have liked. There was no injury to the vulva.
His conclusion was that there was no specific evidence of child sexual abuse. He pointed out that the examination would only show injury due to penetration. Non-penetrative abuse leaves no physical signs, but can cause psychological damage. In relation to the sexualised behaviour, he did not interview the child or anyone else. A skin-tag at the 5 o’clock position could be a sign of child sexual abuse. One study which analysed abused children showed that 35 per cent had skin tags in this general position, but that was a small study. His recommendation to the court at this time was that he would conduct no further investigations but he did recommend that the behaviours be analysed by an appropriate psychologist.
The new edition of the manual on child sexual abuse gave more clarity on skin tags. There are four meetings a year among paediatricians specialising in this area where cases are discussed and expertise shared. “I see five or six cases a year. In other jurisdictions [paediatricians see] 100-120 cases a year,” he said.
Asked if such a skin tag could be genetic, he said he was not aware of such skin tags being due to a genetic condition. He read a study brought to his attention by counsel for the parents. This was focused on more acute signs of child sexual abuse, including inflammation. This usually arose where the child was brought in within 72 hours of the abuse. Most of the children were seen quite soon after the allegations. Skin tags develop over time, at least weeks, probably months, he said.
The conclusion from the Royal College of Paediatricians was that tags can be present shortly after birth; they can be a marker of a past injury; there are varying percentages of tags present among abused and non-abused children. Skin tags were present in three to seven per cent of non-abused children, but all were located in the mid-line. In a selection of abused children skin tags were present in about 13 per cent, but they were all away from the mid-line.
In conclusion, based on the latest articles, skin tags were found in abused and non-abused children, but skin tags outside the mid-line were only found in abused children. So if found outside the mid-line child sex abuse should be considered. He changed his 2015 report, as against his 2014 report, because a skin-tag had been found outside the mid-line on C. This suggested that abuse should be considered.
When he re-examined the child there were no lacerations or bruises or scars in the area around her genitalia. Her hymen could show signs of friction. His conclusion was that there were no signs to indicate child sexual abuse involving penetration, but other forms of non-penetrative abuse could not be ruled out.
Counsel for the parents pointed out that this child was taken into care very, very young and at the age of three could not talk. Both her older siblings had intellectual disabilities. Could the developmental delay be due to nature rather than their environment? The cousins of these children also had intellectual disabilities. The doctor said that we did know that intelligent parents tended to have more intelligent children. But there were many reasons for cognitive disability. Sixty per cent of the children in this family do appear to have some cognitive disability.
The judge said there had been no diagnosis of Child C, and counsel for the parents said she was non-verbal. The doctor said it was not uncommon to have no identifiable cause of intellectual disability. Asked if sexualised behaviour was more common in children with an intellectual disability, he said one could certainly see it in adolescent children with an intellectual disability. It was more disturbing in younger children.
Asked what led him to change his mind and call the children back for further examination, he said he was informed of concern from a social worker of apparent injury to the child’s vagina after an access. A non-medical person saw a lesion that might be a scar. He did not see a scar. Counsel for the parents drew his attention to a study which said that where children were abused more than 42 per cent showed two or more signs six months after the occurrence. Would he not expect more evidence of trauma with these children? The doctor said that the absence of physical evidence did not mean an absence of abuse.
Counsel for parents: “Would a younger child be more likely to show signs of trauma than an older child?”
Consultant paediatrician: “I don’t agree. There is a difference between association and causation. The children in this study were chosen through the courts where there were findings of fact that the children were abused. I don’t think the study leads to the conclusion that there would necessarily be more signs among younger children.”
Counsel for the CFA asked him if in this study, given that they all concerned cases where there had been admissions of anal abuse, was it not likely that this arose because there was more physical evidence of such abuse, and plea bargains were involved? Would that not explain the higher frequency of these physical signs?
The doctor said this was speculation. Counsel for the CFA said that this study also featured children who had suffered repeated abuse often for months or years.
Specialist Unit Interviews
The referral to the specialist sex abuse unit was made in order to get a better understanding of what the children had been disclosing. A psychologist from the unit, who interviewed child A, said the test they did was to see if the child was suggestible. She explained that she made deliberate mistakes to see if the child would connect. Upon entering the room the child remarked that he wanted to see where his foster carer had gone. He was unwilling to return to the interview room without the foster carer. He relied on his foster carer a lot and was very attached to her.
She said that she attempted to engage the child with drawing his family but he refused, he wanted to play with cars instead. She tried to explain her job to the child and explained to him that it was important to talk about bodies. He had a very aggressive style of play and was playing with the toy cars in a way which he banged and crashed them into one another. On this second interview the child brought in a toy and a pillow which he used for comfort, he spoke about “winky”. She said that it was important to figure out the meaning behind the words he used. She said that he did not make disclosures during the interview.
The toys were a communication aid for him in that he would not go into the room without the Bob the Builder toy. She noted that this toy was not anatomically correct. There was nothing suggestive of abuse at this point. In the third interview the child brought in his toy and photos to aid him with his speech. He was shown a photo of the home of his foster carer and he identified that house. When he was shown a photo of the house of his parents he was unsure. He said that he was not going to the home of his parents and described the house as the “fighty house”. She explained that she introduced outline drawings to ascertain what words he had for body parts, he identified the genital area and described it as “winky”.
Counsel for the CFA: “There was a suggestion that the child was directed to the genital area of the drawing.” The psychologist said that he pointed to and indentified the area himself. On his fourth interview the child came into the room on his own and he did not ask for his foster carer to accompany him. His play was more gentle than in previous interviews and he did not want to look at the outline drawings. She said that he presented as a “highly traumatised young boy with significant needs” who scored on the upper end of the sexual abuse scale. She described the behaviour of child A “doing winky on the pillow” and thrusting himself as extreme sexualised behaviour.
There was a feedback meeting with the parents following the interviews. The parents were anxious and spoke about the support needs. They were of the opinion that the foster carers coached the children. The mother said that child A never used the words for his genitalia when he was living at home. The psychologist concluded that “it was highly probable that sexual abuse had taken place in the care of the parents.”
Counsel for the father drew attention to an incident regarding child B where she was getting changed and the sister of her foster carer noticed a mark. Child B said that she was sore and she cut herself with scissors and it was bleeding. The foster carer confirmed that child B only used scissors under adult supervision. Child B said that the incident occurred in her parents’ home. Counsel asked the psychologist if this was an indication that child B was suggestible. The psychologist said that child B had responded to a “leading question and all people were suggestible to a certain degree.”Child B had named her parents and child A as doing “winky” on her.
Counsel for the father asked the psychologist: “Would it be physically possible for children to have engaged in such behaviour in the care of their parents.” She replied: “It is possible.” Child B said that a penis had touched the inside and outside of her vagina. Counsel for the father said: “Following an examination by a paediatrician the hymen of the female children were found to be intact.” The psychologist replied: “Yes, but sexual abuse does not just include vaginal penetration.” She accepted that the genital area of child A was reported as being normal but she said: “Sometimes in cases of child sexual abuse there are no signs of child sexual abuse or trauma on the body.”
Following a reduction in access the sexualised behaviours of Child A decreased. The psychologist said of Child A: “[He] has on-going therapeutic needs with attachment issues. He is an angry, frightened little boy who was unable to communicate in a clear way. He needs support and needs to learn to understand why he behaves the way in which he does.” She said that the child and his siblings needed to remain in long term care and the access plan needed to be re-evaluated.
Second psychologist
Another psychologist from the unit gave evidence in relation to interviews with child C. He said that child C presented as a traumatised child in that she was anxious, scared, controlling and looking for support from her foster carer. He said: “When child C could not predict things she became upset,” but the interviews became easier once she got to know the psychologist. On the third occasion she told the psychologist what was going to happen.
In relation to anatomically correct dolls [used in the unit], he explained that “anatomically correct dolls are used in interviews in order to help children recall incidents of child sexual abuse and the conditions of how the dolls are used is the most important thing with regards to their reliability.” He said that the dolls could be used with children over four years and children under four years if they had the adequate language ability.
The judge asked could the speech delay of child C impact on encoding. He replied: “It depends on the speech and language and it was unclear what child C understood.” He said child C had already made disclosures before using the anatomically correct dolls and she illustrated the alleged abuse using figurines. He said that children generally remember from the age of two years plus but some can remember events beforehand. He said: “In relation to young children it is necessary to find other forms of questions and children are usually able to remember trauma, [according to] the studies.”
He explained: “Children need indicators to talk of trauma,” but he warned that it was important to avoid the use of leading questions. “It is essential to help children provide a free narrative in a credibility assessment.” Counsel for the parents asked: “If the child did not have the verbal skills at the time of the alleged incident then would the ability of the child to recall be impossible.” He replied it “depends on the verbal skills of the child and it was hard to judge what child C could understand verbally,” but he said that pre-verbal memories can be recalled once the child develops verbal skills. He said that pre-verbal memories could be translated into words later on.
Referring to the disclosures of child C to her foster mother, he said the account of the foster mother was different to the account he had been given by the social workers. He did not recall whether child C had been talking about child A when she made the disclosures. He said that it was not possible for a child of her age, which was two and half, to recognise that “fuck with fingers” could relate to digital penetration.
The judge asked would the statement “fuck, daddy fuck, fuck with fingers”, as given by the foster mother, give rise to concern without the background information. Child C had been allegedly grunting and thrusting her groin area. The foster mother took contemporaneous notes and her account differed to the account he had been given by the social worker. He said had he been given the correct version [the foster mother’s account] he would have found the statement less concerning. The judge asked if he was surprised that a referral had been made to the unit based on the information and he replied that he was surprised.
Clinical Neuropsychologist
A clinical neuropsychologist said that he was contacted by the CFA to complete a number of assessments in respect of the family. He highlighted a conflict of interest as he was originally asked to complete a parenting capacity assessment. He proposed another psychologist to complete a neuropsychological assessment while he carried out the parenting capacity assessment.
He said in 2014 there were interviews with regards to the backgrounds of the parents. The families were involved with the social work department and it was concluded that an adult attachment assessment was needed. He said that the adult attachment assessment was relevant to parenting in that “how we present as adults is a consequence of childhood experiences.” He said that the mother’s experiences as a child were relevant to how she parented the children.
The judge interjected to say: “Rather you told me what the mother told you in the interview.” He said that the mother had been in care and had a traumatic childhood in that she had “lived everywhere.” This background raised concerns from an attachment point of view and a lack of insight into traumatic experiences and how they impacted on the mother herself. He said that there was a lack of insight with regards to mental health issues and this was indicative of anosognosia (unawareness of mental health problems). There was intergenerational trauma with regards to the mother and there had been several attempts to engage the mother in the therapeutic process. The mother’s ability to mentalise needs of others was difficult due to the trauma she experienced.
The father had an inability to give robust responses to the questions in the interview and had an inability to remember. He reported that he could not remember anything prior to the age of eleven but he could recall some experiences. The father had a lack of emotional empathy in relation to his life events and an inability to empathise with his children in that he spoke of his children in a “pragmatic and general level.” He spoke of child B in an emotional way and said that she was his “little princess.” His discussions of the other children were limited. He presented as very guarded and the professionals could not get a flavour of his childhood. He said that they were unable to complete the five steps of the parenting intervention interview.
In the interviews the parents did not physically express emotions and the father appeared disjointed and disconnected. The mother denied all allegations of child sexual abuse. Both parents never displayed an understanding as to why the children were taken into care and they were of the view that external forces were against them. The mother reported good parenting. The father was reported as having no knowledge with regards to parenting. The focus of the conversation at the interviews was on the social work department.
The sexualised behaviour of the children was discussed at the interviews. The mother said that this could have occurred as a result of a toilet training game in which they named different body parts as “winky” and “lady.” The neuropsychologist said that this did not correspond to the children as they were not toilet trained when they came into care. The mother was angry the majority of the time and quick to react in an angry way even when presented with supported statements. The mother was triangulating in that she was trying to play one professional off another.
The mother did not show much insight into the needs of the children, though often she could cite basic needs of the children where the father was unable to do this. The neuropsychologist spoke of dyadic developmental therapy (“DDT”) which he carried out with the children. Counsel for the father asked whether he was certified to administer such therapy. He replied he had completed level one training, but was not certified.
The neuropsychologist described the technique which is a prescribed intervention programme where the therapist takes the lead in the intervention. He said the children presented as dis-regulated. Child B displayed challenging behaviour, whereas child A engaged in attention-seeking behaviour and pushed himself into the furniture when he became annoyed. The older children struggled with rules and got into arguments.
The neuropsychologist described an occasion in which he met the children and child B said that the father “hurt her” and pointed to her groin areas. Her affect [appearance] changed and she became embarrassed. Child A swept his fingers across his mouth and hit his hand and shoulder and said that father used to tape his mouth and hurt him. Child B said she saw the father put tape on the mouth of the child. Child B said that the father “put glue and his winky on her face.” She said that the father hurt her and “did a lot of winky in there.” She said the father “did winky on her face and nose.”
He said that child B looked as if she had seen a ghost and was staring. She became distressed but her foster carers reassured her. He noted after a while child B engaged in obsessive compulsive behaviour. He said that there was no coaching by the foster carers with regards to the disclosures of the children. He carried out a lot of table top activities with children C and D. Child C said she had drawings to show, her affect changed and her controlling behaviour escalated.
Child D was described as “standoffish and nervous.” The neuropsychologist said that he had never seen someone so dis-regulated. He said in the years he had worked with children he learned that traumatised people have a narrative which can take a while to build up which becomes a disclosure. He said that it was important to have empathy and accept the narrative of children.
He said that it was significant that all four children were never together but all referenced their parents, maternal aunt and stickers. They appeared embarrassed by their knowledge of sexual acts which was beyond their developmental years. He said that the children disclosed elaborate stories and they would have to have experienced such abuse.
Clinical psychologist
Another clinical psychologist said that he had been a clinical psychologist in training with the neuropsychologist at the time when he was involved with the parents. He said that he was not fully qualified to sign off on his own reports. He kept shorthand notes and typed the notes after each session. He discussed a parenting intervention programme. A parenting plus programme was difficult due to the family’s backgrounds as this case required more one to one in-depth intervention. He made a point of seeing where the parents were in their skills and how to make the suggestions more effective.
In the first sessions he explained the purpose of the plan and building rapport. He said that he was trying to focus on particular points but kept getting side-tracked by complaints about the social workers. The first and second sessions “were taken up by divergences.” He said that he was not happy with the progress they were making as “the focus of the parents was on different tasks.” The appointment in August did not go ahead, the mother explained that she had been stung by an insect and her leg had swollen. The father did not offer a reason for missing the appointment.
He said that during sessions three and four he took notes and the neuropsychologist was present. The parents were not willing to speak about everything they had learned, they had no recognition of the individual’s role in building strong healthy supports with their children. They did not recognise the struggles with the behaviour of the children. He said that the use of the naughty step and time out for discipline were used excessively. With regards to the psychological effects, he said that the parents did not discuss the psychological effects of the children being taken into care to a level which was robust. He said that they continued to complain about social workers.
Second clinical psychologist
A clinical psychologist said she received a referral to carry out a parenting capacity assessment and the documentation she received “fell short” of what she was used to being provided with by the CFA. She did not have access to the unit’s reports as the parents would not consent. She said she had concerns regarding the “very obvious emotional distress the children demonstrated during access.” She was alarmed by their behaviour and had a “duty of care to ameliorate their level of distress.” She wrote an interim report of her own initiative as she was concerned about the emotional functioning of the children.
She observed three access visits with the children. She described child A as being restless and fidgety and having no self-soothing skills. The parents had no capacity to model self-soothing. Child A was described as hyper vigilant and raging. She said that his difficulty in engaging with his siblings was quite concerning. Child A was “emotionally disconnected in a positive way but highly connected to himself, which manifested in this anger.” He did not know his own strength and rubbed his sister’s head in a rough manner. When child A was reminded to do something he became volatile and his “emotional equilibrium becomes discommoded.” She said he was angry within himself.
He was not getting the response the child needed from his father as he was absorbed in rage when interacting with his father. Both child A and his father became locked in battle. The mother tried to reason with child A but he was so angry that it never worked. The mother used the naughty step as a way of managing his behaviour but “a child with his level of trauma needs to be brought in rather than experience further rejection which is what the naughty step is to a child who is traumatised.” She noted that the child’s “capacity for emotional reintegration was too fragmented and access was heightening that all the time. His level of rage was immeasurable. He was a child with severe psychological distress.”
Child B was described as “engaging and very anxious to please.” It was noted that child B used to hold herself rigid and this was an indicator of stress. She said that child B had an ambivalent attachment to her parents. The mother referred to child B as “mammy of us all” and it was noted that she became the care-giver at access. The psychologist said that “this was not the role of a child, in that it was her task to be a child and not a mammy.”
Child C was described as a “ball of anger and in a permanent state of rage.” She noted that when the father became angry he would bare his teeth and assume a snarling pose and child C would imitate this. It was noted that “child C would not stop running psychologically and ran away from distress.”
Child D was described as “the voiceless child who wandered at access” and had very little language at the time. He would “cruise and avoid contact with his parents in order to protect himself.” He showed no distress when leaving access. She said that the emotional development of child E had been disrupted three times weekly when she had to attend access. She stared and engaged in a freezing movement when child A screamed. Child E could not have a period of sleep at access and became hyper-vigilant leading to hyperactivity.
The psychologist said that weekend in December 2013 when the children were returned to the care of their parents did “untold and immeasurable damage which may not ever be repaired.” She said that the trust they had for adults had been shattered and it would take a long time for the children to regain that trust. She remarked that the children were traumatised weekly by access and “upon exposure to trauma, memories come flooding back.” She said that the capacity to manage is dependent on age and resilience.
She said that the rage experienced by the children, especially child C, after access never got to a point where it reached an equilibrium and they were continually traumatised. She said that for these children the trauma was so severe that they needed psychotherapeutic intervention. She said with exception of child E, the children had suffered neglect and emotional impoverishment. She noted an inability of the parents to emotionally connect and to respond to the emotional needs of the children.
She said that the description of the children by the parents did not correspond to reality and there was no congruence between the two. The parents created an idealised picture of the children and had a lack of capacity to parent and meet the emotional needs of the children. There was little positive affirmation given to the children and very little joy taken by the parents in engaging with the children. The emotional warmth of the mother was directed towards child E.
She said that child A had trouble functioning in social settings and could not recognise social boundaries. “He is so hyper-vigilant and finds it difficult to disengage from emotional distress.” Child B was described as compliant and one who would always struggle. She was described as having “borderline intellectual functioning and until she can care for herself, she will need support. Her instinct is to please. The desire to please creates a huge vulnerability as she will aim to please adult partners.”
Child C was described as the brightest of the children but was in need of psychotherapeutic support. She said that child D needed a caring nurturing environment and he was nurtured by his foster carers. She recommended psychotherapeutic support for the parents. She said “the children deserved nothing less than to be in a safe, stable, nurturing environment to meet their needs.” If the children are re-traumatised they would have an inability to form relationships and an inability to trust.
She said that the children needed to be given “an opportunity to integrate themselves where the heart, body and mind become one.” She recommended that access be suspended while the children achieve “a day to day emotional equilibrium.”
Counsel for the CFA asked her to give her observations regarding a proposed access regime whereby the social workers met the children every four weeks on access day and if they believe that there are compelling reasons not to bring the children to access, they would have discretion not to bring them to access. She responded that such “a regime would re-traumatise the children. The children needed to be allowed to settle and not have visits from social workers and accesses where they are greeted by social workers …. Children need peace and calm in their lives and they deserve nothing less, I speak in the best interests of the children and they will have a future which will be similar to that of any other child.”
Guardian ad litem
The GAL said that she had been working in child protection for a period of 20 years. She said her first visit was to introduce herself and the mother spoke about how distressed she was about the children going into care. She had a formal sit down with the parents. She said that an extreme robust assessment was needed for this family and regrettably it did not happen prior to the proceedings. This family and these children had a right to the appropriate assessment regarding reunification.
Referring to the children going home in December 2013, she said that “only the parents know what happened that weekend as they had full care of the children that weekend.” The GAL explained the use of bear cards with the children in order to express their feelings. Child A picked a sad bear card and looked sad. She said the use of the card was [to hear] the voice of the child and the interpretation of it. The children picked the most aggressive bear in the pack to illustrate the father. She said that “these are not children who need to be controlled, they [child A and B] are able to indentify facial expressions.” She said that they chose cards in accordance with experiences and feelings and emotions. They chose happy cards when talking about their mother.
Child B had demonstrated to the GAL that her father did “winky” on her face. Child A, B and C consistently chose negative cards when referring to the father. It took time for child A to get to know the GAL and for her to get his focus. She said that it was not often that children picked up negatives in relation to their parents as most children picked something positive, Child A was clear and blunt when he picked the angry bear card to represent the father. She said “he was reverting to experiences which made him unhappy.”
She said that the parents had a simplistic view as to why the children were in care and they thought it was just in relation to the condition of the house. Both parents felt as though they could not trust the GAL and she said that she explained to them what her role was in relation to the views of the children. She said in relation to the assessments of the children by unit: “I have worked with many children where there has been no physical evidence of sexual abuse but where sexual abuse can happen in other ways.” She said that there was no way that sexual abuse could be ruled out due to lack of physical evidence.
She said of the visit to the placement of children A and B that it was her view the placement was under pressure due to the behavioural needs of the children and the ongoing need for the carers to manage. She said that an email had been sent in relation to child A’s foster placement and there were ongoing concerns [about it]. There was a need for parallel planning and a placement akin to a bed and breakfast. She said there was a need for therapeutic intervention as the carers were drained.
She spoke to the neuropsychologist who shared her views. The behaviours were becoming more extreme and there were fresh concerns emerging every day and this had an impact on child B, whom she described as an emotional girl. She said that the foster mother, although tired, always acted in an appropriate manner with children A and B. She said that she gave great consideration to the feedback from the unit’s assessment and said that the parents loved their children but were not in a position to meet their needs. She said it was in the interests of the children to remain in care and to place them with their parents would be unsafe.
Social Work Team Leader
The social work team leader said that she had prepared a revised report for the hearing of the appeal. She said that the purpose of the report was to analyse the large amount of information that she as team leader evaluated to come to the conclusion in the finding of fact. She said that they were not seeking a finding of fact in relation to child D but a finding in respect of children A, B and C.
She said the social work department understood “winky” to mean penis while “doing winky” referred to a sex act, thrusting or stimulation of the genitalia. She said with regards to the disclosures, the “children corroborate each other and they tell multiple versions of child sex abuse”. Children B and C made clear statements of child sex abuse against their parents. The sexualised behaviour modelled adult sexual behaviour and given the consistency of the statements she said that there was no other way to look at the statements other than as abuse.
She said the way in which all of the children spoke of “white glue and sticky” inferred abuse as there “was no way children could have known about ejaculation at that age.” She said that this case was one with the most disclosures [she had known]. She said her report had been changed in order to reflect the evidence in the case and had been revised in relation to the DAR.
She said that the mother was implicated in the abuse and witnessed it without protecting her children. This was clear from the disclosures of the children. She said that some of the statements implicated the mother as being involved. The mother was aware of the abuse and did not protect the children and was a participant. The medical evidence of the doctor showed child C had a skin tag and this was consistent with abuse and corroborated the history of abuse.
Counsel for the parents said: “The Gardaí had been called out to the house when the children were returned home that weekend and the children were found to be in good order.” She accepted this contention but said: “I’ve seen people who look normal when they come to the door although abuse has occurred.” Counsel for the parents stated: “You are not an expert in child sexual abuse, you have no qualification in that respect.” The team leader replied that the experts in the unit may have greater qualification but the social workers carried out screening and assessed child abuse. She said that the respondents’ psychologist was talking about things that were beyond her area. She also said that the Garda clearance was not provided for the foster carers. She said that the parenting sessions, access and reflection meetings, more than ten in over a year and half, pointed out what did not work. She recommended that a Care Order should be made in respect of all of the children until they reach 18 years of age.
Mother’s Evidence
The mother said she “would not let anyone harm her children in any way.” She met the father when she was in residential care, she was 14 and he was 19 years old. They began a relationship when she was 16 years and it became physical when she was 17. She said that they were “reasonably stable and in love” at that stage. She was 17 when she was expecting her first child and she told the staff of the residential unit who were very supportive. They helped her to look at houses upon her departure and she was upset about being discharged from the unit.
When child A was born the family stayed with the paternal grandfather for two weeks and then moved. The mother said that when she learned the information about the paternal grandfather close to her due date and was shocked to learn the information as she was “not expecting to be around another sex abuser.” She said that the father had been kept in the dark with regards to the paternal grandfather. She never left child A with the grandfather and she made sure that child A “did not leave her sight.”
She found it easy to deal with two children. Her aunt helped her with the children as she suffered depression following the birth of child B. The family moved house again. The mother explained that 2011 was a difficult year as her mother and aunt both passed away and it was difficult with three children. The father was helpful and looked after them well.
There was a concern with the social work department where they previously lived as her sister had called them. She explained that “my sister would ring the social work department if we had a falling out.” She said that they did not move to “get away from the social workers in [that area] but rather as I could not handle being [there] and needed to isolate myself.”
She said once the family moved it was hard to engage with Child A’s early intervention team as it was difficult to get to where it was based and she attended once. She said that she had broken up with the father in 2011 and begun a relationship with another man but she did not know of the criminal background of this other man. She did not want anything to do with him when she learned of it.
She was expecting child D in 2012 and she needed a break from her relationship with the father. He continued to visit the family very day. She said that her sister moved in with the family shortly after the birth of child D and she helped with the children. She accepted the house was messy but said that the family had just moved into the property and she had just got out of hospital. She said that they had everything covered and had purchased a new Moses basket for child D.
She admitted that “having a second Moses basket was not a good idea.” She said that she usually had sheets in the bed. She explained that she suggested at the case conference in 2013 a private foster arrangement with the father’s brother and his partner but this was not considered by the social workers. She said: “It wasn’t to get the HSE off my back but I did not want the children in care at all … we did not want the matter to go to court and did not think it would go as far as it did,” and felt as if they had no option but to put the children into voluntary care.
She sought legal advice and was told to comply with the social workers. She said that she did not want to do a parenting assessment with the social workers as she had problems with them and preferred to have an independent person. She said that she knew how these “assessments went and that they would use my past against me.”
She admitted that when the children went into voluntary care she knew there were a number of issues and she needed to step up and work with the CFA. The family moved house again and made improvements to the home. Access took place at the CFA offices as she did not want the children in the house when there was “stuff around”. Access took place three times a week and was great. She said that she found supervised access uncomfortable and that the relationship with the CFA was breaking down. She said that the relationship with the foster carers was good and the children were well clothed going into care.
There was an allegation by child A of physical abuse at access in 2013 and the mother said: “I never lay a finger on my children.” She said when the family was informed of the sexualised behaviours of the children she laughed nervously as she did not know what to think of the behaviour. The children had not exhibited sexualised behaviour prior to going into care and the parents reported the sexualised behaviour to the Gardaí.
She said that she always expressed a desire to have the children back. “I agreed to voluntary care as I always said I would do anything” to have the children back. The social work department never informed the parents of the intention to seek an Interim Care Order. She said that the CFA brought an application for an Emergency Care Order which was refused when she was in hospital expecting child E. When the children were returned home the father had collected the children [from voluntary care], they were not anxious and there was no problem getting them to sleep. Child D shared a room with the parents. Child A had his own room while child B and C shared a room. The mother’s sister had her own room. Child C was sick and she had to be taken to the doctor.
She said that child A had one minor outburst but the children had no difficulty playing together. Child C was taken to see a female doctor who did not prescribe any medication. She said the following day the children got up, played and watched cartoons. She did not return the children to the CFA office. The children were dressed well but she had forgotten the insole for child A.
She said that no one else had visited the home that weekend apart from the partner of the paternal uncle of the children. The mother said she did not believe the concerning statements made by the children following the weekend at home to be true. She said that neither she nor the father sexually abused the children. She said she never engaged in any sexual behaviour in front of the children and that pornography was not watched in the home.
She said that the children made concerning statements at access. On one occasion child A said his foster father “did this to me” while he was making a scraping like movement with his hand on his shoulder. She said that two different explanations were presented as to account for the statement, neither of which was credible. In 2015 the relationship with the social workers broke down and the mother “could not trust them with anything.”
She said: “I did not see the need for an assessment as they [the children] were not abused by their mother, father or maternal aunt.” She said that a referral was made to the sex abuse unit and she was concerned as she herself had attended the same unit. In respect of child E she said that they had a bond with child E and were meeting her needs. The mother said: “We wished we had a chance with [child E] but she was ripped away from us.”
Child E was described as having speech delay. She was able to walk around and shuffle but the parents always gave her encouragement. The mother said that she had a good relationship with the foster carer of child E. The parents did not have access with the child C and D since 2015 and child A and B since 2016. She said at the last access she remembered that it was “great”, child C and D wanted to get into the taxi with the parents and she could not understand why it was the last access. With regards to statements made by the children, the mother said: “I don’t know why this is being said, I am not sure if the children are being coached.”
At the last access with child A and B she recalled that child B said to her: “I try to tell her [foster mother] that you didn’t do it, but she [foster mother] said you did.” The social worker at access said that this was not what was said to the foster mother. The mother felt as though the social worker did not believe her.
The judge asked if all of the statements made by the children were denied. The mother said: “Yes, I know what sexual abuse can do and I wouldn’t wish that on anyone.” She said that the best place for her children was to be at home. She said that they took their heads out of the sand and now lived in a proper home. She remarked that “we can manage and are open to anything.” She said that she had no trust in the social workers but would do anything to get the children back.
Father’s Evidence
The father denied that he had ever abused his children. He said that he was the youngest of ten children and his mother died when he was 17. He said that he was bullied at school and the other children used to say that his father was a rapist. He did not find out that his father had sexually abused his sisters until he was told by the social worker many years later. He was “kept in the dark” about his past. He said that his father was physically violent towards his mother.
He said when he found out that he was to become a father he was “delighted as any first time father would be, I was over the moon.” He said when he found out his father had been convicted for sexual abuse he made his child his priority. He said that he managed with the children. He said that he had a great relationship with the eldest children and said: “How could I be angry with them, they are my kids and they deserve the best?”
He said he complained to the social workers on a few occasions when he saw a bruise on child B’s face. He said that he wanted to find answers and was not satisfied with the explanation he was given. He said: “The foster carers are only in it for the money and I stand by what I said.” The father admitted he was in a relationship and had a baby with the mother’s sister. He began texting the mother’s sister when she was in care but he could not remember the context of the texts. He knew of her past.
The judge asked: “Did you think you should have sent the texts to a 16 year old girl in care when you were 26 years old and knew she had been abused, texts which made the mother jealous? Did you think that was a good idea?” He replied that it was not a good idea to have made the mother jealous. He did not tell the mother of the fact that it was his baby as he “had his own reasons and he wanted to protect the baby from the social workers.”
Counsel for CFA: “Do you remember I asked you in 2016 were you the father of the baby and you said that you never had a relationship with the sister?”
Father: “I did not want the baby taken into care.”
Counsel: “Would you lie because you did not want the social workers to have [child A], or [child B]?”
Father: “I would not lie for my kids. My kids are in care and they have been mistreated. I don’t want [child F] to go through that.”
He later said that he would lie to protect his children.
He said that he believed the children to have been coached as he said the children were calling their parents by their Christian names and they did not allow the children to call their parents by their Christian names when they were in his care. He said that he believed the foster carers had put fear into his children and he was not letting that go. He believed that one of the foster carers had hit child B as she had a mark of a ring on her face. He spoke with child B and her eyes flooded with tears and he could see the fear in her face when he mentioned that someone had struck her. He was very concerned that the foster carer had struck child B in the face. He said if he has his children back he “would be over the moon and at least I could protect them, I would do anything for my kids, they are my world.”
He said that he missed his children terribly and he did not know what to do with himself. He said that he did not believe a word of the allegations made against him and the mother. He said: “If I had touched my children I would not be here to prove my innocence.”
The judge reserved her judgment and delivered it later. She rejected the appeal and made Care Orders for all the children until the age of 18.
Some details in this case have been changed to protect the anonymity of the family
