An Emergency Care Order was granted in the District Court after being part heard over a period of three days. On the first day, the application proceeded on an ex-parte (without notice to the parents) basis under Section 13.4.c of the Child Care Act 1991, but was refused. It subsequently proceeded under Section 13, with notice. Short service was granted for the second day of hearing.
Day 1: ex-parte ECO
The CFA applied for an Emergency Care Order (ECO) on an ex-parte basis (in the absence of the parents). The solicitor for the CFA told the court there were no respondent details for the father, he was unaware that the mother was in hospital and had given birth.
The solicitor said that it was the opinion of the medical social worker, the social worker and the midwife who had been working with the mother that if she was served notice of the ECO application it could precipitate an adverse event which would not be in the child’s best interests.
The mother had up until the birth of her child intended signing the child into voluntary care, however she had changed her mind. The professionals involved believed that she would seek to remove the child from the hospital.
There were historical issues relating to the mother’s case concerning four other children and poor parental supervision, lack of basic care, on-going neglect and alleged physical assault.
The mother, who was from another jurisdiction, had left the country unbeknownst to the CFA when these children were placed under a Supervision Order and had returned with only three. Subsequently, two of the children were placed into care and one was signed into voluntary care.
Therefore it was a concern of the department that she would attempt to leave the country if served notice of the ECO.
The CFA solicitor told the court that there were issues of on-going domestic violence with the mother and her current partner. They were both homeless and although the mother had had hostel accommodation, she had chosen to sleep in a tent with her partner when heavily pregnant.
The mother had been originally on the confidential list in the maternity hospital regarding her admission and had had no contact with the father. However she had taken her name off the list this morning and wished to locate him.
Her history of anxiety and depression was also a concern for the department and she was undergoing a psychiatric evaluation that afternoon.
The social worker told the court that the new born baby had low platelets and would be required to remain in hospital for another day. She said that the mother was now most likely fit for discharge. She told the judge that the immediate and serious risk grounding the ex-parte ECO application was the fact that the mother had threatened to remove the baby to an unknown location, as well as that she had a history of leaving the jurisdiction with her other children.
CFA solicitor: “In relation to not serving the mother, can you outline the causes for concern that makes it urgent enough for her not to be served.”
Social worker: “Unpredictability. She previously stated she would place the baby into voluntary care due to domestic violence. Other causes for concern are safety, lack of social supports, mother’s mental health, living conditions and she has a hostel placement for two weeks. She has limited financial resources and an historical difficulty managing her finances.
There are no essential items for the baby although she said this was because the baby would go into voluntary care. The father had bought two outfits; a t-shirt and one teddy.
This is all she has at this time.”
CFA solicitor: “What do you believe is likely to happen were the mother to be served?” Social worker: “That she would attempt to leave the hospital tonight against medical advice and then attempt to travel outside the jurisdiction.”
CFA solicitor: “What are the risks posed to the child were he to be removed from the hospital by the mother?”
Social worker: “She has a lack of resources around basic care items and her ability to care for his basic needs at this time. There are concerns around domestic violence from her partner and he was violent towards her during the relationship and the pregnancy. She had been concerned about the safety of the unborn baby but she now wishes to maintain the relationship.”
The social worker told the court that there was no evidence of change in parental capacity since the time of the Care Orders being granted for her other children. She had attended one out of six parental capacity assessment appointments with the social worker.
That morning the mother had been crying and had said that she no longer wished to place her baby in care. “During that conversation, I asked what her plan was for him was and she said she would like him to live with her in the homeless accommodation.” “Did she make the threat of the unknown location to you?” the judge asked.
“She said that she would go to the accommodation that was organised for her,” replied the social worker.
“First of all the location is no longer unknown,” the judge said. “To describe somebody as threatening to leave when she is about to be discharged … she’s entitled to leave isn’t she?” Social worker: “I wish to amend that judge, I’ll exclude that then.” The judge asked if there any corroboration of domestic violence apart from the mother herself.
The social replied that the only information she had was from the mother herself. However, at a case conference she had heard that the mother had attended a second maternity hospital during the pregnancy where she had presented with bruises and indicated there was domestic violence.
As no one was present in court from that maternity hospital the judge said questioned to what extent he could rely on that type of evidence.
Medical social worker
The medical social worker told the court that an incident had occurred in the maternity hospital on the previous night. The staff had a concern about a change in her presentation.
The mother had accused staff of trying to stab her with a needle and she was not receptive to their input with the baby.
Prior to giving birth, the mother had given her history of anxiety and depression as the main reason for not having the capacity to provide care for the baby.
The medical social worker felt that the mother was under a lot of stress and “if she was to hear the CFA were going to court I would fear she would remove the baby from the hospital.” A mental health evaluation prior to a discharge was now recommended due to her behaviour.
The midwife also told the court that due to the incident on the previous night she was also concerned that the mother would “run with the baby” if she found out about the ECO application. She said the mother was looking after the baby well.
Judge: “As things stand, if she leaves the hospital now with the child she is fully entitled to do it, the fear is she will do what she is entitled to.”
CFA solicitor: “We say there is a consequence attached to that which is the social work evidence.”
The solicitor said there was a necessity for the child to stay in hospital. The judge pointed out that necessity would only arise if there was a medical opinion that the child needed to stay. He said the urgency of an ex-parte ECO under Section 14.4c stated that the “urgency of the matter so requires”, not that the there was a fear of a consequence.
Judge: “You’re in a circle. The urgency of the matter requires that it is so urgent that it be heard now, but that’s not what you’re arguing, you’re arguing that the consequence will lead to something else. There is no urgency about when you run the application, there’s a consequence you may have to deal with, but the child doesn’t have a passport.
“People are entitled to change their minds, particularly when the child is born. The real issue here is the consequence of serving but not the urgency. You’re afraid she’ll run, and that she’ll leave the hospital which she’s fully entitled to do and because of that she’ll leave the country.”
The CFA solicitor conceded that it was a consequence issue rather than an urgency issue.
“This is a high level of fair procedures we’re dealing with, the highest level” the judge said, as the child was a new-born and being breastfed.
The solicitor for the CFA said he would adjourn the application for the ECO until the following day if the judge would allow him to serve the mother that day in respect of the proceedings.
The judge formally refused the ex-parte ECO and allowed short service to the mother of notice of the Section 13 ECO application for the following day, on the basis that he was told the mother was physically medically fit for discharge.
The judge abridged time for service.
The following day:
The following day the mother’s solicitor told the court that the mother was looking to be placed in a mother and baby unit in order to allow her to remain with her child pending the outcome of a relative assessment of a foster placement for the child.
The mother’s position was that the ECO was not necessary and she was very anxious not to be separated from her son.
The social work department were unable to establish contact with the father and he was not currently accessing homeless services. As the couple were not married, he was not a guardian to the child. The application proceeded on the basis that it was on notice to the parent having custody of the child.
The social worker told the court that she believed there was an immediate and serious risk to the baby because of his age and “looking at historical concerns”.
“Why do you say whatever those concerns are, why do they present an immediate and serious risk to a child of this age?” the judge asked.
“Lack of basic care around her ability to provide him with food,” the social worker replied.
“The mother is breastfeeding and yesterday there was no concern around the care of the child. Telling me you are concerned is not sufficient, why are you concerned? I don’t intend to ask that again,” the judge said.
The social worker told the court that the concerns within the historical context had not changed in relation to ability to care and providing for a child as there was little evidence of her making efforts to change between then and now. The previous parenting capacity assessment had found that she did not have the capacity to parent her children and provide for their needs.
A number of supports had been offered to her at that time (four years ago) but she had left the country with her children and had not accepted any services.
The mother had only attended one parental capacity assessment meeting prior to the birth of her latest child. She had seemed to understand the concerns and had agreed to a voluntary care arrangement, said the social worker.
“Her parental capacity difficulties should be acknowledged,” the social worker said. “He is at greater risk for some of the concerns, for example basic care and supervision.” Neglect was a concern.
“You need to be more specific about it,” the judge said.
“What form of neglect?” the mother’s solicitor asked.
The social worker told the court that historically the children had not been supervised because their mother had been upstairs on her computer or sleeping during the day. She was not always in the house when the children came home from school.
Due to the baby’s age there would be significant risk to him if he should suffer neglect. She may not be aware of when he needed to be fed or give him the emotional warmth he needed. This would have a catastrophic effect on his health given his very young age.
The social worker accepted that the mother was caring for the baby’s needs in hospital however she was within a very supportive atmosphere. There were also concerns around the issue of domestic violence, the mother’s living conditions and her lack of ability to organise herself.
The judge felt that much of the evidence was more appropriate to an ICO hearing. “I’d like the CFA to concentrate on the immediate and serious risk,” he said, “not throw in everything.”
Mother’s solicitor: “Specifically, precisely, what is the basis for the immediate and serious risk to the child today should he leave?”
Social worker: “The possibility of neglect towards the baby, domestic violence from her partner, readiness to parent the baby, lack of items for the baby at this time.” Mother’s solicitor: “In respect of neglect, how likely do you believe that neglect will be?” Social worker: “Significant risk and it is very likely.”
Mother’s solicitor: “Extrapolate the basis for that.”
Social worker: “Her inability to care for herself and the child, this is based on my meeting with the mother before the birth and her readiness at this point.” Mother’s solicitor: “Domestic violence, how can it affect [the child]?” Social worker: “Her partner had said he did not care if she was pregnant when there was domestic violence. It may continue if she re-enters the relationship and it could have a very significant risk to him of harm or to her and she can’t look after herself.
“She has a lack of basic care items and a lack of planning around taking him home. I accept her plan has changed, however she would need a number of items, a bed and more clothes.
There are indications she has suffered around lack of planning in other areas of her life, including her living conditions.”
Mother’s solicitor: “What is the risk posed to [the child]?” Social worker: “Her accommodation as it stands is for two weeks, after that point she will have to access a Freephone number after 4pm on a night-by-night basis. Should she not be able to access the bed that would be a concern, therefore that is a risk around his health and well-being.”
Other immediate risks were the emotional and physical readiness of the mother. The mother’s solicitor argued that those reasons should not cause an immediate and serious risk. The mother had nappies and could get more clothes.
Mother’s solicitor: “Have you received any reports from the hospital that she is sleeping while the child is sleeping beside her bed?”
Social worker: “No.”
Mother’s solicitor: “So why would you believe that?”
The social worker said it was due to historical information. However the mother’s solicitor pointed out that those concerns were not about new born babies.
In relation to the mother leaving the hospital with the child, her solicitor said that babies were tagged and you could not just walk out.
The judge said that unless there was an order in existence a parent could leave the hospital with their child.
The medical assessment in the hospital had found that there were no signs of psychosis but that the mother was under quite a bit of stress, the social worker told the court.
“Is it reasonable to be stressed when you are about to be served an ECO for your new born child?” the mother’s solicitor asked.
“Considering the situation it is reasonable,” the social worker replied.
The mother’s solicitor told the court that the sister of the paternal aunt had offered to care for the baby in a relative placement and that the mother would find this appropriate for a short period.
Her solicitor told the court that in relation to the other children’s proceedings she had had difficulty finding a judgment or a decision and what the actual historical concerns were. “It is quite difficult to go through it to identify the recommendations that existed at the time.” “It would appear there were effectively allegations of neglect in relation to the two children, the subject of the care orders,” the judge said.
In relation to the historical parenting capacity assessment, the mother’s solicitor said that there did not “appear to be a conclusion that you see in other reports that the parent is not fit to parent any child, so it is specific to the children and the circumstances that were there”.
The judge said he would have to decide what weight could be given to that parenting capacity assessment, and that the person who prepared it was not in court therefore it could not be relied upon as part of a social work finding.
Senior medical social worker in the maternity hospital
The senior medical social worker told the court that the mother was breastfeeding and that it was going well. There had been no reports of neglect and she had been managing the baby care well. She was nurturing the baby and very attached to the baby since birth.
Her ability to make concrete plans around the baby would be a cause for concern. The mother had expressed that she had not felt she had had the capacity to care for the baby and therefore had not made preparations.
The mother had difficulty maintaining accommodation in the homeless services and that gave cause for concern. She had chosen to sleep rough in a tent with her partner instead of accessing the bed provided. The violent relationship she was involved in would place her baby in a very vulnerable position.
Prior to the birth the mother herself had felt the issues of depression and anxiety and that she could not parent the baby.
The judge asked in circumstances where a mother had a change of heart on birth and decided not to place a child into voluntary care, what would happen then.
“It would come down to the capacity of the parent, they might be considering adoption, once there is evidence of capacity they would have the opportunity to care for the child,” replied the medical social worker.
The following day
When the case came back the next day the father was in court and represented by a solicitor.
The mother’s solicitor said the mother was quite unwell and not in a position to give evidence. She was extremely stressed and anxious. Her preference was to go to a mother and baby unit and, if this was not possible, her second preference was for the baby to be placed with his paternal aunt.
The father’s solicitor said this was also his preference. His main concern was for the welfare of the child. He thought it would be best for the mother to be in a supervised unit and if the court decided otherwise for the baby to go to his sister.
“I can’t order the CFA to do anything unless the child is in care,” the judge said. “If I decide not to make an order, that’s the end of it.”
After a brief adjournment the judge delivered his judgment. He said in order to grant an Emergency Care Order he had to have reasonable to cause there was an immediate and serious cause to believe that the child’s welfare was at risk. He said an ex parte application had been refused.
Outlining the basis for his decision, he said the mother and father were not married. They were homeless. They were present in court and had indicated through their legal representatives they did not wish to give evidence.
The mother had four other children, one of them now an adult. While subject to a Supervision Order they had been taken out of the jurisdiction and the mother returned with three, who were placed in the care of the CFA.
In relation to this case, evidence had been heard from a medical social worker and a social worker.
The only basis for an Emergency Care Order is that a risk to the child was both immediate and serious. The evidence that was uncontroverted was that of historical concern relating to the neglect of the other children, which would render the mother likely to neglect this child; domestic violence between her and her current partner, including during pregnancy; she had placed herself on the confidential listing in the hospital in order to avoid contact with her partner, but she had also indicated her intention to continue the relationship.
There was evidence of her failure to attend certain appointments and her attendance at two different hospitals during her pregnancy, but the judge did not consider these to constitute an “immediate and serious” risk. She indicated prior to the birth her intention to place the child in voluntary care, but later changed her mind, which was also not indicative of an “immediate and serious” risk.
Evidence was heard of her lack of preparation for the birth of the child, but she was homeless. There was also evidence of her general lack of organisation. The issue of her mental health was also raised. She was displaying stress and anxiety.
Three issues were relevant to the Emergency Care Order: the historical concerns; the domestic violence and the risk that would pose to the child and the absence of practical preparation for the care of the child.
The historical concerns indicated a serious, but not immediate, risk.
The judge said he was satisfied of the evidence of domestic violence, and there was no evidence of steps being taken that ameliorate that. In these circumstances, and where the mother was homeless until very recently and with the lack of any evidence as to how she was preparing practically for the care of the child, there was reasonable cause to believe there was an immediate and serious risk to the welfare of the child. He was therefore granting the Emergency Care Order.
The mother’s solicitor asked that the child’s paternal aunt receive an emergency assessment as a foster carer.
The judge said this was provided for under Article 6 of Statutory Instrument 261 of 1995, dealing with foster care and placement with relatives. “The CFA will commit to doing it as quickly as possible,” the CFA solicitor said.
“You have an obligation under Section 3 of the [Child Care] Act to uphold the principle of the benefit to the child of being brought up in his or her family. I think that can be read to include the extended family,” the judge said.
There was a brief adjournment during which the parties discussed access, particularly in the light of the mother’s breast-feeding, and they returned to court to say that access had been agreed.