A father sought increased access to his child, who was in foster case, under section 37 of the Child Care Act 1991. The father is the child’s guardian and was legally represented at the hearing. The case was heard over two separate dates, three weeks apart. The child, who is of primary school age, had entered care six years earlier from her mother’s care on the grounds of neglect. Other issues addressed during the hearing included a section 47 application in relation to access to a psychologist and a discussion on a holiday planned by the foster carers and attendance at a music concert.
In January 2016 a two-year Care Order expired. The order had been made on consent on the understanding that supports would be put in place to move towards the reunification of the child with the father. The child had not lived with her father to date.
During 2016 the Child and Family Agency (CFA) made an application for a Care Order in respect of the child until she reached 18. The father is contesting the application and has sought the return of his daughter. The Care Order application was scheduled to run for three weeks in late 2016 but was adjourned due to the unavailability of a key witness. The Care Order hearing has been rescheduled for summer 2017, a year and a half after the initial Care Order expired. The child remained in the care of her foster carers throughout this period. A Multi-Disciplinary Team (MDT) was established in relation to this case, the father did not attend these meeting due to work commitments but his advocate attended on his behalf.
Four witnesses gave evidence during the hearing – the father, a psychologist, the social worker and the guardian ad litem (GAL) – and reports from the three professionals were submitted. The court agreed to change the usual order of the hearing of witnesses to fit with the availability of the witnesses and court time allocated.
The child’s mother had not engaged in the proceedings and was not represented at the hearing. During the hearing the court heard that the father had seen the child’s mother who appeared to be homeless in Dublin city centre. The court was told the CFA did not have contact with the mother.
The court was informed that a specialist, Expert B, had been identified to carry out an attachment assessment interview with the child. The expert had availability over the coming months and it was expected the assessment would take between six and eight weeks.
Father’s evidence
The father gave evidence that he had consented to a two year Care Order in relation to the child in December 2013. At that time the intention was to increase the access between him and the child following the father’s attendance at a psychologist.
During the past year the access visits had moved to take place in an Access House. The father said this had improved the quality of the access visit. He said his daughter usually ran towards him when he arrived for the visit. The visit lasted between two and two and a half hours and each visit involved five hours of travelling for the father. He said the time constraint limited the activities they could engage in together and had put them under pressure. They usually split the time between staying in the Access House – where they might cook something together – and going to the local town, which was 10 minutes away by car.
The supervision of the access had been reduced since the last court hearing on access. The father informed the court that the supervision arrangements in the Access House consisted of a staff member who sat in the front room (an office space) and that the door might be open or closed. They had had little interaction with the access worker except on occasions when the child might show her what she had been doing, for example baking. The father reported that the child had not expressed to him that she had any fear, she never asked to return early and instead she had asked to stay longer.
The access visits follow a pattern, taking place every two weeks twice and then after three weeks. When asked how much access he would like the father replied: “As much as I could get”. He indicated that he would like the amount of access in Dublin to be increased during school holidays but he acknowledged that the child had a “slight difficulty” with the car trip.
Reports of the access worker were read out in court. The worker said that the child was enthusiastic to see her father, they talked and laughed together and the worker had heard the child repeatedly asking if they could go into town. She said the child appeared to enjoy the visit and the father interacted really well with her.
The father said sometimes the access worker was turned away from him so it was hard for him to greet her. He acknowledged that he sometimes did not make eye contact with the worker and explained he had got into a habit of that.
The reports contained a description of incidents that occurred such as one involving a milk cartoon where the child became upset and left the house for a few minutes but returned “after a sulk”. In another incident when they were 15 minutes late returning to the Access House, it was reported that the child said she was scared. The father explained that he returned from the local town by a different route as there was bad traffic, he said the child did not seem upset.
On another incident during an access visit in Dublin, it was raining out and the father and child visited his house, the father said the child had asked to see the house. He said she showed no signs of distress or fear. They had some food and watched TV and then he showed her around the village where he lived and they went to the local pub to play pool and had some coke and crisps. The social worker was not expecting that he would bring her to his house, she rang him and he returned with the child. The father acknowledged that the daughter said she did not like Dublin but he said this was not the case when she was there.
Counsel for the Child and Family Agency (CFA) cross-examined the father. She said the psychologist, Expert A, had recommended that access should happen at the child’s own pace, that time and planning was needed. The father said he agreed with this but he believed the child’s opinion has been tainted by the opinion of the foster carers. The court was informed that the MDT thought the pace of access was good now. Referring to the CFA, the father said the child “is listened to when it suits you”. The father believed the access visits do not need to be supervised. The CFA reported that the child said she wanted it to be supervised. The father said he thought the child wanted the worker there as it was “down to just habit, she is conditioned by yourselves [the CFA] to think this is normal”.
The father said the child was distressed by her situation of living in care, she asked him questions and told him she did not understand why she was in care. It was an unnatural situation.
Accessing a psychologist
On foot of a recommendation from the psychologist, Expert A, the CFA adopted a position that access could only be increased once the father had begun attending psychotherapy. The court was informed that the father had indicated he was happy to engage in psychotherapy. The father had said: “It might help me improve my outlook on the case” and “anything I can do to make [access] better I will do it”.
There had been a delay in the father starting psychotherapy as no appointment had been set up by the CFA. Counsel for the father made a section 47 application in relation to securing an appointment for the father with a psychotherapist. The barrister for the CFA reported that a psychologist (psychologist A) had been identified and she could see him on Saturdays or before work. However, at the next hearing of this case, three weeks later, the court was updated that due to family circumstances the psychologist was no longer able to work with the father. A new psychologist had been identified (psychologist B). During the hearing, the father expressed his frustration with the delay in setting up the appointment. He said: “It should have happened a long time ago.”
The judge commented that the recommendations of Expert A were not compulsory, they were only recommendations for consideration.
Expert A’s evidence
Expert A, a clinical psychologist, provided the court with evidence based on his report of an access assessment he undertook and submitted to court in September 2016, six months earlier. The focus of the report was on the issue of access, the psychologist noted that he did not undertake a comprehensive assessment of either the father or the child.
Expert A observed an access visit between the father and child and said there was a “degree of warmth, affection and a bond” between them. He said the child was able to tease and toy with her father. He believed access needed to be “expanded” and said that for the past six years access had taken place largely in public places. He described heavily supervised access taking place in public as “extremely difficult”, “not normal” and “not ideal”. He recounted that the father had repeatedly said the access arrangements were inappropriate. Expert A was delighted that during the past year access had moved to take place in an Access House.
The psychologist supported access taking place in Dublin. He said the father needed to realise that it is okay to waste time with the child and for access to be at its best it needed to take place in the father’s house in Dublin. He commented that the child “has a view of Dublin that seems to be unhelpful”. He recalled that in an earlier period when access was not going well, the child wanted two supervisors to be present. She said she did not feel safe but this shifted over a number of weeks. The psychologist asked: “What does she mean by ‘safe’?” He commented: “There is so much conflict in this case and her awareness of that is in excess of what it should be.”
He said the father needed to enter a therapeutic relationship, preferably psychotherapy, which was independent, to safeguard his privacy. Expert A did not assess the father but in his opinion he believed the father might be on the autism spectrum or have autistic traits. He said he must come to an understanding of this trait to stop this getting in the way. He said the father, now aged 35, had had “a life time living in a particular way”.
The psychologist said people with autism could parent. He noted that the father had insecurities in his own attachments and he needed to reflect on how he responded and his style of interaction so he could move beyond his behaviour into insight. He said the father could be very hostile even if he did not intend to be. He had a poorly developed theory of mind. He acknowledged that the father was willing to engage in psychotherapy six months earlier and the delay in securing a psychologist and in implementing his recommendations was unfortunate. He acknowledged that there was a small pool of people available to work with [the father].
In relation to the child, the psychologist said essential cues needed to be taken from her. He said her attachment style to her father was not secure, the question was did it have a potential to develop? Her cues must guide progress and be interpreted by a therapist. The psychologist said the child knew that her father and her foster carers “have difficulties with each other”, and she had been exposed to that. He said the question was how had this happened. He spoke of the importance of evidence from a therapist if there was a good relationship with the child. Counsel for the CFA informed the court that the child’s therapist (psychologist C) had left the service. He recommended that they wait till the attachment assessment was completed before considering what therapy she needed.
Counsel for the CFA said that the child reported that she wanted the access worker in the house and had indicated a reluctance to go to Dublin. The psychologist said much of the child’s views about Dublin “were influenced by what her foster carers have told her”. He commented that at her age it made sense that the child would be trying to appease both her father and foster carers. He said there was “so much distrust” in this case and the “one thing I think is missing is a reliable opinion on what [the child] is able for”.
The psychologist said the attachment assessment could reveal quite a lot that might be masked by her behaviour. He said: “A lot will rest with the outcomes of the attachment assessment.” When asked about the possibility that she might disengage from the attachment assessment process he said she related fine with him as an observer. He clarified that the process in an attachment assessment was different to that of a therapeutic relationship as it is structured.
The psychologist said the child could not make metacognitive sense of what she was thinking. She was very aware of conflict. She was “a very conflicted child, her behaviour needs to be understood”. He said the child could not internalise and therefore was very externalised. Also she had a lot of control of what was happening and the adults needed to take control. The girl was too immature to make sense of what was happening.
Asked about changing access at this time, the psychologist replied that he would be very happy for access to move forward once the father was engaged in therapeutic work and said that people needed to have confidence once the father had put the safeguards in place. In relation to the child, he said once she was observed to be managing well in her general behaviour then an increase in access would be fine. He said: “A lot of time is being lost”. If the father was in a therapeutic relationship that looked workable then the decision on access should rely very strongly on observation of the child’s behaviour.
The psychologist said access should be only increased in a small way so it was not too much for the child to manage. He said the child relied on external support to manage her difficulties so it was best to undertake incremental change that she was ready for. He stressed that she needed to be listened to by the adults in her life or she might disengage.
He advised that rather than saying to her: “Would you like…?” the parties should be saying: “I think you’ll be able for this and let’s give it a go.” He said sometimes children needed help to do the stuff they worried about, the therapist needed to push it and do it safely. If a child was unsettled this would be observed across all settings – at school, socially, at home and at access with the father. There was also a need to probe what she means by “unsafe”.
He said the situation was a “puzzling mess for the child.” The psychologist said her past behaviour (where she said she did not want to go to access but once she went she was happy) indicated an anxious attachment style. She had a fear of things going wrong but once she was in the situation the fear passed. He said it was likely that an “insecure attachment style” had built up following a set of experiences.
He said two conditions were needed before a radical change could be made to access: the father needed to be in therapeutic relationship and the attachment assessment needed to be completed.
He spoke of a “level of suspicion” and a “lack of trust” between the father and the social workers and foster carers since the beginning of the case and that there was a “live” suspicion that the child was being coached by the foster carers. In response to a question on how to prepare the child for the attachment assessment, the psychologist said the child should be encouraged to go, to be honest and tell the assessor what she thought. He said the assessor would be able to tell if she was being coached.
Social worker’s evidence
The social worker said the CFA was in agreement with the recommendation of the psychologist, Expert A, that there should be no radical change to access arrangements and there was a need to support and encourage the child. She said the CFA had encouraged the girl and would continue to do so and to encourage the foster carers to be supportive. The social worker acknowledged that progress had been make in the child’s relationship with her father. The CFA’s position was that the current duration of the access visit at 2.5 hours per visit and the frequency of access visits should remain the same: they did not agree with the child’s request for the frequency to be reduced to every three weeks. The court was informed that the foster carers were supportive of the current level of access.
It was reported that the girl said access visits in Dublin are “too far away, boring” but was open to going on special occasions. However, the social worker felt it was important that the child had visits in Dublin and supported a Dublin visit over the forthcoming holidays and would discuss at the MDT the possibility of a visit over the child’s birthday. She said other changes must wait until psychotherapy commenced and the attachment assessment was concluded.
The social worker gave evidence that the child was quite resolute in her wish to retain the current supervision arrangements where a worker was in the house and had rejected a CFA proposal that the worker could wait outside the house. The social worker therefore concluded that any change to supervision might have a negative impact. In response to a question as to why the child wanted the access worker in the house, the social worker said she believed the presence of the worker gave her “some sense of security”. The social worker referred to the child saying, “I feel safer”, and said that she sometimes had a feeling she was going to be in trouble. On further questioning, the social worker said she had not qualified with the child what the word “safe” meant for the girl.
In response to counsel for the father, the CFA said it had not sought advice on the implications for access of a possible autism diagnosis for the father.
In relation to an access visit that the social worker observed, counsel for the father asked if was part of her role to observe how the child recounted her access visit to the foster carer and how the foster carer responded. She reminded the court that there had been repeated assertions by the father that reunification was being hindered by the foster carers. Counsel said this was an opportunity for the social worker when observing the father and child to also observe the foster carers and child after the access visit. The social worker said she had not considered doing this but could discuss it at MDT.
Counsel for the father said there has been a six month delay in the CFA commitment to arrange for the father to see a psychotherapist. Counsel said there had been a lot of delay in this case and some of it had been “perceived as malicious”. The social worker said the delay was “regrettable and due to circumstances beyond our control”.
The social worker said the child was repeatedly asking about her mother and she informed the court that the child had been in contact with her mother via Facebook, including receiving a message from her. It was reported that the foster mother checked the child’s history on the computer, noticed she had set up a Facebook account and so deactivated it. The CFA were investigating this and would ensure that the child’s Facebook page had been closed down and would clarify the difference between deactivating and deleting a Facebook account. The foster carers had not been aware that the child was using Facebook and had since installed the Nanny Net programme.
Replying to a question from the judge, the social worker said it was her experience from speaking to the child that she never gave any substantial explanations for her views on access and when one tried to challenge her she talked of a sense of “security or safety”. The judge asked: “Has it crossed your mind that she has been told to say that? You drew a conclusion that it indicates something, have you considered any alternatives?” The social worker replied that she had not considered these questions. The judge asked if the social worker had put alternative options to the child about the frequency of access. The social worker said she had asked her about any changes but “did not offer more or less” as options.
A comment was made in court that as there was no current order regarding access, by default it was at the discretion of the CFA to set it. The judge said this view was incorrect. He said access arrangements were not at the discretion of the CFA. The CFA was under a duty to provide reasonable access. However, they could make an application to the court under section 37 to vary access.
GAL’s evidence
The GAL met the child within the previous week in a hotel and said that the child was “in good form”. The GAL recommended that “no radical changes should take place until both are in therapy.” She supported an access visit in Dublin over the forthcoming holidays and recommended that the less said to the girl in advance the better, “just tell her it is happening,” she said. The GAL cautioned the parties that the girl was only still very young and so “the adults should not ‘over talk’ to her about issues”. She said the child was “giving the answer she thinks you want or someone wants”.
The GAL said the child had been asking after her mother for a long time and had asked the GAL to help find her mother using Facebook. The girl had said: “It’s hard, I have two mammies.” She said the child was pleased her father had seen the mother.
The court was informed that the duration of access visits has been increased from two hours to two and a half hours. However, the GAL reported that the girl believed access to be two hours and commented that the child was not really aware of time. She said the girl was familiar with the concept of extending access over a holiday period as there was a parallel to what happened for her foster brother. The GAL informed the court that the child said she did not like the pattern of visits being two weeks, two weeks and then three weeks as it was “too confusing”, she felt two weeks was “too much” and so would prefer every three weeks. The GAL believed the child would notice an increase in the frequency of access visits.
The GAL said the girl reported feeling safer with staff in the access house. The child had spoken of feeling like she was going to be in trouble even though she was not and that she did not like that feeling. The child said she did not like to talk to her father about her foster mother as she did not know if this would make him angry. The GAL said the current arrangement was the last hurdle of supervision and acknowledged it that meant a lot to the father. She said there had been substantial improvements in the father’s presentation, but the inconsistencies the girl had witnessed in the father’s presentation had led to a lack of full trust and full security in him. She believes this was “why the child is holding onto that last bit of supervision”. The GAL agreed that we did not know what her interpretation of the term “safe” was.
The GAL said she did not believe there was a way to improve the relationship between the father and the foster carers and that mediation would not be appropriate. She said their relationship was in the “best place now that it has been in a long time”. She said the foster carers would be engaging in therapeutic support for themselves. She also remarked that the foster carers might experience a potential loss and were aggrieved about that. She acknowledged that the father was dealing with loss and “from having being wronged”.
In response to the GAL’s evidence, counsel for the father said moving from two, two, three weeks to two, two, two weeks would not be a radical change if there were supports. Counsel said we needed to discount the child’s words and look at her behaviour. The GAL replied that she did not think this would be advisable in the absence of an attachment assessment and both of them being in supportive therapeutic relationships.
The judge asked if the child’s idea of every three weeks being “easier” was because it was mathematically easier to understand. The judge recalled that the father gave evidence that he always had a sense of watching the clock during access. He asked the GAL if she saw any scope for flexibility in the duration of the visit. The GAL replied that she thought that was a good idea and that the length of time was not that significant for the child.
Holiday arrangements
The foster family had booked a holiday last winter for summer 2017. The holiday was due to take place during the Care Order hearing. At the time the holiday was booked, it was anticipated that the Care Order would have been concluded. The court was informed that if the judge refused the Care Order application the child could be brought back from the holiday. The barrister for the father was unhappy with this proposal.
The judge said he “cannot make a direction, sense is what is required, it is beyond the court to sort it out, good sense, generosity of spirit is needed”. He said it “simply cannot be solved by the court, it falls to the parties to sort out”. The judge asked whether the CFA could give permission for a child to travel outside of the Care Order. He left the application stand.
Musical concert
The child asked her father if she could go to a music concert in Dublin. The father asked his advocate but had not received a reply so the request was included in the access application before the court. The father said it was the child’s idea to go to the concert but she later changed her mind, which he accepted.
The foster carers raised logistical difficulties. The concert was on a school night during term time and was on in Dublin in the evening so it would be very late by the time the child returned back to the foster carers. The father said he “wasn’t aware of the time constraints and that it wouldn’t be ideal”. The focus of the discussion during the hearing was on what led the child to change her mind and to say she no longer wanted to go to the concert. The social worker described the child as “disengaged and wriggled within her chair” when asked about it.
Counsel for the father asked if the CFA had analysed what led the girl to change her mind in relation to the concert. The judge agreed that it was important for the CFA to analyse any change of mind. The social worker said she knew the child wanted to go to the concert and she reassured her that the CFA would support her to go. She said that her change of mind “may be feelings of conflict”. Counsel for the father recalled the words of the psychologist (Expert A) that “a lot can be masked by words” and that we should not be satisfied to take her words until it was understood why she was using them.
Judge’s decision
The judge gave his decision on the access application. He observed that it was not the first time there had been an application in relation to access in this case. He recalled that the psychologist, Expert A, had said the child “is a very conflicted child” and this needed to be understood by everyone as she was at the centre of this case and must be the focus of the case. He said the psychologist had urged the adults to take control and put their own agendas aside as they were allowing the child to exercise control to some extent.
He commented that the psychologist had very interesting things to say in relation to this case albeit that his recommendations were made six months earlier including his recommendation that there be no further radical change in access arrangements pending the father engaging in psychotherapy and the girl’s engagement in attachment therapy. The judge said there was scope for some incremental change in the access arrangements. In relation to the father, he commented that for any parent with limited access to their child “it will grate” but cautioned him to put it aside.
The judge said we needed to know “what does the girl say and why does she say it?” He said we were clear on what she says not on why she says it. He believed that “the child’s pace is more than what she says it is”.
The judge said he was not granting an order to extend access as he believed it was in the best interest of the child not to radically change the access at this point. However, he asked the CFA to consider the following measures in a positive way at the next MDT meeting: to provide additional access in Dublin over the forthcoming holiday; to allow additional access over the child’s birthday; and to allow an extension to the duration of an access visit when connected to a specific activity.
He said the level of supervision appeared to be the “last hurdle” as it was as close to being not supervised as you could get, he said: “It is the idea rather than the actuality”. He asked the CFA to explore if the level of supervision could be even less obvious or less intrusive.
Referring to the discussion on the music concert, he said other occasions of such requests were likely to arise and that such requests should be considered. He described the delay in organising the psychotherapy for the father as “very unfortunate”. In relation to the Facebook incident, he said the child clearly wanted contact with her mother and was not getting it any other way. Clarity was needed on what had happened.
