A full care order was granted in a provincial town in respect of a pre-school child. The parents were UK nationals who had come to Ireland before the birth of the child. The mother had four children in care in the United Kingdom (UK). There were issues in relation domestic violence, alcohol misuse and drug misuse. The court had previously refused an application to transfer the proceedings to the UK. Both parents were represented.
Neither parent was present for the application. Counsel for the mother said the mother was residing in another provincial town. The parents were not consenting but they did not object to the care order. The parents were seeking a review in two years and that access would not occur less than monthly.
Counsel for the Child and Family Agency (CFA) said the child was born in 2018 and had recently turned two. The child came into care on foot of an emergency care order and an interim care order was then granted. A care plan was in place and it was envisaged that the child would remain in her foster placement. The child was well settled and had been in the placement since coming into care. No reports were handed into court.
The judge said: “I am at sea due to the failure of the CFA to send me paperwork. I will have to hear in depth from the social worker before I will grant the order.”
The social worker said she was assigned to the matter in January and she was aware of the child protection concerns. The mother had four children from previous relationships in care in the United Kingdom. A prebirth case conference took place in UK and there were concerns about domestic violence, alcohol and drug misuse. The father had a conviction for assault.
The parents had come to Ireland to have the baby due to fears that the baby would be removed from their care as a result of the concerns in the United Kingdom. The parents admitted they jumped jurisdictions. The social worker said there were traces of cocaine in the baby when she was born and the social workers then became involved.
The parents had been offered supports for their alcohol and drug misuse but none of the supports were taken up. The social worker said there were acknowledgments of domestic violence and the father admitted that he did not want the child to grow up in that situation.
The relationship broke down but there was talk of the parents reuniting. The mother admitted to cocaine use. The social worker found a GP who would offer toxicology support. The mother was provided with a bus pass and map to the GP, however, neither parent attended the GP.
Alcohol was a factor in the domestic abuse. The mother acknowledged her alcohol misuse and said she was already working with supports. She attended an assessment with the alcohol support service but did not attend any further appointments.
The previous social work team thought the mother would benefit from support from Women’s Aid due to her vulnerability and safety concerns in the relationship. The mother contacted Women’s Aid to say she would attend. The father said the mother would not attend.
The father did not attend a programme to address his behaviour as it did not suit his working hours. He later indicated he wanted to address his issues and an appointment was arranged for him in Dublin. The social worker completed the paperwork but the father said that he would not attend as he had no car.
The couple had recently again ended their relationship. The social worker said she had received a phone call from the father saying that he could do no more [in the relationship] and he was concerned the relationship would cause problems with their tenancy. The mother was drinking and the father was negative towards the mother’s behaviour.
The father had said the couple had had an argument that lasted all weekend and he had called the Gardaí who had advised the couple of protective orders available to them. The father subsequently left to live with his friends. The social worker said the couple had broken up on two occasions in a number of weeks and there had been two Garda callouts since she became involved. She said: “The Garda callouts were more prolific last year.”
The social worker said she had been unable to make contact with the mother. She had tried to contact the mother again when the father said the relationship had broken down. The father had told the social worker he wanted separate access as the mother had moved to another provincial town with a former partner.
The social worker said she was concerned for the mother’s welfare and the Gardaí called at the mother’s address but she was not there. The mother told the social worker she would be in contact when she was ready for access again. The social worker contacted the mother to set up a video access and she agreed. The social worker said the mother came onto the video call using the father’s phone and this sparked concerns.
The father had told the social worker that he could not care for the child as a single father and his plan was to return to the UK. Before COVID 19 restrictions, the social worker had met both parents and discussed access going forward. The father said he was working locally and access was arranged for Friday at lunchtime due to his working commitments.
The mother attended four access visits and the father attended two visits out of a possible seven. The social worker said there was no pattern of consistency in access. During the Covid-19 restrictions the father was happy to step back in relation to access. When Covid-19 restrictions were relaxed, the social work department carried out risk assessments and physical access commenced in a park. Access with the father was positive.
The mother acknowledged her access was poor as she was emotionally unavailable. The mother would attend access and leave early as she was not in a good head space.
When access took place together, the father was more engaging and the mother was described as “more of a passive observer.” The father had requested access once a month and had said he would be happy for 12 accesses per year. The father said he thought it would confusing for the child to go from weekly access to monthly access but it would be better to introduce the changed access plan sooner rather than later.
The judge said: “The father is clear that he wants 12 accesses and he has said wherever he was in the world he could come back for access.”
The social worker said access had been inconsistent and there were so many unknowns [with Covid-19] especially if there were restrictions on travel.
The judge said: “Access can [take place] by Skype.”
The social worker said: “I have no problem with video calls where face to face [access] cannot continue. The pattern of access with mum has been inconsistent and we need a plan in place that is consistent.”
Counsel for the father said: “The access worker was assigned in 2020 and she said the parents presented clean and appropriately dressed. The foster carers and parents had a good relationship and access was described as rewarding in the access notes.”
The social worker said: “At times there is good access but other times it is not [good].”
Counsel for the father said: “You have the opportunity to go through the access booklets and I find it hard to point out the accesses that have been negative. These are fair reflections of the accesses between the father and the child. Access is positive and in her best interests. It would not be in [her best] interests for access to be reduced to less than once a month.”
Counsel for the mother said the child and birth parents were happy to see each other at access and there were positive interactions with mother and the child. You said that mother was disengaged and not in a position to meet the child’s needs and access had been a positive experience.
The social worker said: “I would agree but our greater concerns are for needs of the mother. That does not take away from the positive.”
The social worker said not all accesses were positive and a lot of visits were more difficult for the mother.
The judge asked: “Can you give examples of the bad days?”
The social worker said: “I am aware of incidents but I cannot outline them.”
The social worker said she hoped to speak with the mother and get a plan in place regarding access.
The mother attended four access visits and left early. The father attended two access visits and left 30 minutes early. The social worker said if the mother was in a place where she had stability, the CFA would be open to reviewing the access.
The judge said the parents have been given every opportunity to be in court and they had not attended and the missed accesses were not highlighted by their representatives.
Counsel for the CFA said: “The CFA sees no difficulty with monthly access but subject to Covid restrictions, the CFA is asking that access be at the discretion of the CFA subject to section 37 [of the Child Care Act, 1991].”
The judge said: “They [the CFA] has not offered access by way of skype except for the child’s birthday. I do not think the child would have good proficiency in [using the] telephone and video calls would be better.”
Counsel for the CFA said: “I think the foster carers have difficulties with other children in the [placement]. Provided the parents present well at access, the CFA will be offering access monthly. At present access is offered weekly.”
The judge said: “We are going from weekly access to monthly [access].”
Counsel for the CFA said: “The CFA is open to discussing [access] more often than that. The CFA will meet with the parents but they have been unable to contact the mother to discuss her safety.”
The judge: “What is your view in relation to access and can you give a commitment. I am not keen on this broad sweep of a brush [statement that] ‘we are committed to access’. I will be interested to see your commitment to access. “
The social worker said she had no issue with the father wanting access once a month but access with the mother was more concerning. The mother had not availed of the supports. The social worker had concerns as they had had a video call with the mother and it came through on the father’s phone.
The judge said: “If I made an order, the child will be in care. What business is it of yours if the relationship is still ongoing? You said you were concerned about her relationship with the father. It’s her access to her daughter we are talking about. If she [the mother] is with someone else, or he is, you are not a moral policewoman.”
The social worker said she would like a conversation with the mother about her lack of communication with the social work department.
The judge said the mother’s lack of communication was not the business of the social worker and the social worker’s involvement in the mother’s personal life was way off the table.
The judge asked if she had power to make interim orders in relation to the access issue.
Counsel for the CFA said section 47 gave power to the court to make an order in relation to the welfare of the child but section 47 should not be interpreted on its own and should be interpreted in relation to section 37(1) in which there was an obligation on the CFA to give reasonable access. The court did not have power to make an order of its own motion under section 47. The application would have to be grounded on motion and affidavit under section 37 (2) of the Child Care Act, 1991.
Counsel for the mother said access was related to the welfare of the child therefore an order could be made under section 47 and the court had jurisdiction of its own motion. The solicitor for the GAL said it was the general consensus of the courts not to expand jurisdiction under section 47. There was an express provision under section 37 whereby the parents could apply for access if either parent was dissatisfied.
Guardian ad litem
The GAL was appointed in July 2018 following the child’s birth and the application for interim care order. The GAL visited the child before Covid-19 restrictions were introduced and had contact with the child through her foster carers during Covid-19. The GAL said the child was doing exceptionally well and her health was robust. She was walking and beginning to talk.
He said: “She is exceeding her developmental milestones and doing exceptionally well overall.” The child was unsettled at night and calling for her mother following a change to the access schedule. He said: “You could not say that had to do with access as the child was tolerating access and access has been changed with frequency. She has dealt with it well.”
The GAL said: “I have been impressed with the foster carers and their commitment [to the child].” The foster carers were prepared to abide by the recommendations of the professionals and they had a good relationship with the parents. There had been an exchange of photos of the mother’s other children in the UK and foster mother created a memory book for the child. She intended to build upon it and include the information of the siblings for the child.
The GAL supported the application for a full care order. He was of the view that the parents had not exhibited change and it was highly improbable it would happen in the future. He said: “The parents were respectful to me and it is not always the way with parents. It has been my position to push for more access and I have pushed.”
The GAL wanted to road test how the parents would respond to an increase of access. he said: “The child has a right to have frequent access with her parents who love her despite their own challenges. The road test had difficulties and that was a feature of the access schedule.” When access took place, it was positive.
He said: “My plan for the child was that access would have to be rescheduled. The parents always wanted access but there have been times they wanted less access. When the child sees her father she benefits and he is very good with her. The mother has her own difficulties and that impacted access. The mother has been good but not as good as the father. It has been my practice to be as expansive with access even to the dissatisfaction of the CFA.”
The solicitor for the GAL asked: “What is your view of the court making an order for access not less than once a month?”
The GAL said: “It is my fear access will take place less than once a month or cease completely. With the relationship ending I have a fear it will lead to further disconnection. Access should be as frequent as possible.”
The GAL was of the view that there should not be a prescriptive order made in relation to access.
The judge said: “I have been advised there is no consent from the parents, there is no objection. I have heard from the social worker and GAL, and on their evidence I am satisfied the health and welfare of the child would be neglected in the absence an order under section 18. I will make a full care order.
“The social worker did assure me that both parents have access going forward and the mother will have supports. There is no formal application regarding access and I do not deem it appropriate to make such an order. It is open to both parents to make a formal application for access.”
