A judge in a provincial town ruled that it was not in the interests of children and their relationship with their parents that they should give evidence in an application for care orders. The judge was hearing an application under Section 23 of the Children Act, 1997 in respect of the admissibility of statements made by six children aged between 5 and 16 years.
Counsel for the parents objected to the statements being admitted as one particular statement had only been furnished on the morning of the hearing.
The judge said that he had not admitted the statements and would have to hear evidence to consider whether it was in the interest of the welfare of the children to be called to give evidence.
The social worker said that it was not in the interest of the welfare of the children to give oral evidence. She stated that it would “impact on the current and future relationships” the children have with their parents.
In relation to a one young girl, the social worker explained that coming to court to give evidence would be an “emotional and traumatising” experience for the child. She was receiving therapy and long term intervention was required in order to enable her to express her feelings, having lived at home in difficult circumstances. The social worker described the younger children, all of primary school age, as “vulnerable” and said that it was not in their best interests to be exposed to the adversarial system.
The judge interjected and stated that the younger children were not required to give evidence and the application would be confined to the two eldest children.
In relation to a young teenager the social worker explained that it was “not in the interests of his welfare to come to court” and that the adversarial system would put the child in a “difficult position, emotionally and physically.” She explained that the child was in care and that his placement was under stress. She said: “Bringing the child to court would exacerbate the conflict.” She explained that the child had a tendency to become guarded after a stressful situation and frequently put walls up. He had become “unsettled over time.”
The social worker said that she had asked the child if he wanted to come to court to give evidence and he had declined. He had met with the GAL previously and put in a request to meet the judge. However, he later changed his mind and indicated that he did not want to come to court. The social worker said that she accepted that the children had changed their minds.
Counsel for the father asked the social worker if she was aware of the safeguards in place with regards to the giving evidence. He said: “When he said he didn’t want to come to Court, did you explain the giving of evidence to him and how it would work?”
She replied that she had not outlined the safeguards in place with regards to the giving of evidence and explained her “priority is the emotional welfare and well-being of these children regardless of what procedures they are invited to take part in.”
The social worker said: “Both boys have a decent understanding as to why they are in care but have consistently expressed a view as to going home.”
She gave evidence in relation to the other child in care, an older teenager. She said that the child had “difficulties but to a lesser extent than the other child.” She explained that he found himself caught in situation with regards to loyalty and that the process of cross examination would be detrimental to the current and future relationship he has with his parents. The social worker explained that it would be extremely difficult for the child to come to court.
The judge interjected and said that “the wishes of the children only go so far.”
Counsel for the father asked the social worker if the children had been questioned regarding their experiences at home and if such questions were to be tailored or put through an intermediary would it curtail her concerns.
The social worker responded by saying that “the process would have its own trauma.”
A new GAL had been appointed as the children did not interact well at times with the former GAL. The second GAL was not in a position to give evidence. The former GAL explained that in the early period of her engagement with the children they had been very open. She was of the opinion that if they were to give evidence, it would damage the relationship they have with their parents.
She said that the older teenager was very loyal to his father and would not hear anything negative about his father. She explained that the younger teenager had a closer bond with his mother.
The former GAL said that she had never asked the children if they wished to give evidence but explained that they had a good understanding of the adversarial process. She described the older teenager as “immature but competent to give his views.” She said that the child was “not in a stable place” and that he was out of control. He often involved himself in risk-taking behaviour at childcare reviews.
She said that the younger teenager was “soft and sensitive.” She explained that “on days when things were not going well he would have a tendency to say more.”
The judge said that he had heard the evidence of the social worker and the former GAL who expressed views that it was not in the interest of the welfare of the children that they be exposed to the adversarial process. He said that “if the children were called to give evidence, it could damage the relationship they have with their parents.” He concluded that “on that basis the CFA has reached the threshold that it is not in the interest of the welfare of the children to give evidence.”
The proceedings were adjourned, and when they resumed the parents consented to the Care Orders for all the children, following discussions on access and other matters.
