A District Court in a rural area granted a section 18 care order for a primary school age child, A, to stay with her teenage siblings in her stepfather’s care. The child and her teenage siblings had come to the attention of the Child and Family Agency (CFA) as a result of domestic violence and addiction issues. A had come into care two years previously on an emergency basis. The father of the two older children, B and C, sought and was awarded custody and was approved as a foster carer for A.
Neither parent was legally represented. The judge decided, on the request of the CFA, to hear the parents separately because of the nature of their relationship and to avoid intimidation and undue influence of the mother by the father. The mother, who had mental health and addiction issues, had been on remand for an unrelated offence and was produced in court. She consented to the care order.
The father sought to have the case put back and was opposing the care order and denying the perpetration of domestic violence. The judge refused to adjourn the case. He said he had advised the mother on a number of occasions to seek legal representation and this was the father’s first appearance. The case was specially fixed for the date in question. “The father can’t upend proceedings,” he said. The father did not return in the afternoon to have his case heard. The CFA solicitor told the court the father told her he was returning to work.
The court heard the evidence of a CFA social worker, a women’s refuge worker, a substance misuse worker, a mental health social worker, a Garda and a guardian ad litem (GAL). The mother was invited by the judge to sit before him alongside the CFA solicitor with a copy of the reports and a note pad and to ask about anything on which she was unclear.
The CFA social worker confirmed on oath that she had gone through her report with the mother and that the mother had access recently. The mother was invited by the judge to ask questions regarding the report and she confirmed she did not have any.
Domestic Violence
The witness from the women’s refuge told the court the mother stayed there for six months three years previously and had engaged formally and informally. The witness agreed with the mother that after leaving the refuge she had kept in touch by phone with a number of colleagues and had completed a course on child protection and domestic violence.
She told the court that during the mother’s stay at the refuge she went missing without explanation and this caused concern.
“I was really worried about [the mother]. There was no answer from her phone and [I was] worried for her safety. I wanted to know where she was. There were no planned arrangements. She was found at the accommodation of her ex-partner,” the witness told the court. The Garda witness told the court she had received a call from the refuge and had called to the father’s address. She told the court the mother had been visibly upset and had said she was held against her will. The father had breached a safety order and when arrested he was found in possession of a flick knife.
The Garda witness told the court the father had 39 previous convictions including section 3 assault causing harm, public order, criminal damage, theft, road traffic offences and possession of drugs for sale and supply. The father had served a custodial sentence for assault and criminal damage.
When asked by the judge of any offences which would show dishonesty or a propensity to violence, the Garda witness told the court the father had been convicted of possession of a firearm, gas revolver, a phone taser and eight rounds of blank ammunition. When the father’s home had been searched under a warrant, a quantity of drugs including heroin and stolen property had been found. The Garda told the court that the mother had reported the father had hit her over the head with a walking stick. The social worker referred to the father having a walking stick with him when he did not appear to need it and cancelling appointments with the CFA.
The Garda told the court they received a referral from the CFA regarding the safety of a child and when they called A told the Garda her parents were upstairs fighting. She said the father was abusive in front of A and attempted to take the child. When the Garda pepper spray failed the Garda said the father had to be physically restrained.
Substance misuse
A witness from a substance misuse service told the court the mother had attended two appointments and missed two further appointments. He said the mother, who had been referred by the CFA, told him she did not have a substance misuse problem and did not make any further appointments.
Judge: “Have you ever had a referral made by this person and the person had no problem at all?”
Substance misuse worker: “No”
Mental health
The social worker from the mental health service confirmed the mother had accessed the service for 11 years. She was initially referred by her GP for panic attacks and assessed by the psychologist as having social stresses, not sleeping and having an overactive mind. Six years previously the mother had been having panic attacks and she had assisted her with financial and housing issues and discharged her.
Three years previously the mother was referred back to the service through Accident and Emergency (A&E) where she presented walking on the road in a distressed state and was diagnosed with an anxiety disorder. On a second occasion the mother presented at A&E with self-harming superficial lacerations and was not admitted and on a third occasion she was brought by the Garda in a distressed state as her children were in care The witness said there had also been referrals from the CFA social worker and she had offered appointments and a pre-arranged home visit, but the woman’s engagement with the service had been sporadic and she was discharged two months previously after several efforts to contact her to no avail, the witness told the court.
The mother did not disagree and said: “Part of my mental illness makes me shut myself away and bury my head in the sand.” The mother went on to say she had other physical illnesses and felt overwhelmed and this caused her to shut down.
On hearing the evidence, the judge said to her: “That is the evidence presented to ground the application for a care order and I referred to the booklet and have gone through it. I know you said you weren’t contesting but it is important you know the material I am relying on and I invited if you wanted [for] your side of the story to be heard.”
The GAL told the court A was doing well in her stepfather’s care. She had made a number of visits and she observed a close bond between A and her teenage siblings. The stepfather had adapted his home to make space for A and she was well cared for and settled in her placement. She was doing well in school and frequently got ‘student of the week’ awards. She worried about her mother, the GAL added.
The mother was invited to address the court if she so wished. She told the court she had suffered a number of illnesses and surgery which resulted in her losing her job. “Mentally, I started to spiral out of control. I had started arguing and this should never have happened in front of the children,” she said. “I had been brought up that way and [I] know it is not right. I had a happy home. Once I got sick, I fell apart with more and more pressure. I wasn’t well enough. I was trying to look after the children and lost the house. The landlord sold the house. After eight years I ended up in damp accommodation,“ she told the court.
Judge: “I put it to you, your relationship involved significant ongoing domestic violence.”
Mother: “Only when I got sick.”
Judge: “What does domestic violence mean to you?”
Mother: “Hitting someone or screaming at someone to make them in fear. I learned a lot in the women’s refuge. I want the father to do a men’s course. I asked the GP to put him forward. I am not sure he got the appointment. “
Judge: “A significant part of the problem is your relationship with the father and the children being exposed to it. There also seemed to be a suggestion you had kept your marriage to the father from the CFA social workers.”
Mother: “No, I lost the registration work.”
The mother said she did not want her children exposed to domestic violence and when asked if she had to choose between the father and her children, the mother said she would choose the children. The judge said this was not consistent with her marrying A’s father four years previously. The mother said she had been very sick at that time.
When asked by the judge on her thought of A doing well with her siblings, the mother said. “I know it is all a mess and selfish to put the children through chaos after chaos and I want what is best for my children.” The mother told the court she wouldn’t have the children separated from each other.
Mother: “I don’t want to be selfish when it comes to the children.”
Judge: “I haven’t made a decision, but if I was to decide, and I haven’t heard everything, if I was to decide you were inappropriate, would you want A with her father? Supposing she was an only child, or she was three days old.”
Mother: “To uproot her is not a good idea, not stating the father was a brilliant father, I am concerned about uprooting the child. When I have a proper stable home…”
Judge: “What timescale?
Mother: “One year. I have a job in a restaurant and an apartment coming up. I am receiving counselling. I didn’t want the children to think I didn’t care.”
Judge: “I don’t think you need to worry about that.”
The judgment
Later that day the judge delivered his typed judgment and read it to the court. The judge said although the parents had not been represented he had ensured a fair hearing. The father had not returned to court in the afternoon and the judge adopted the evidence heard in court in relation to him, including the Garda evidence, he said.
The judge said A’s mother was clearly very intelligent. “The problem is that her intelligence is enveloped in her unaddressed drug and mental health issues. Her intelligence is borne out in her ability, notwithstanding the emotional upset that it is causing her, to sacrifice her companionship with her child because it is not in her child’s best interest. This is a true sign of a mother who loves her child dearly. She knows she is not able to provide for her child and she knows that it is not in the child’s best interest to extract her from her current environment,” the judge said.
The judge said the mother impressed the court as being very intelligent but also very vulnerable. “There had been numerous referrals from various sources confirming A had been exposed to significant domestic violence and had endured significant emotional abuse. The gardai had witnessed this first-hand. The child also reported being hungry at times,” the judge said.
He said the mother did not fully accept not just that she and A’s father had created the environment, but also the impact of their environment on A and she either minimised or denied it.
The judge granted a care order under section 18(1) of the Child Care Act 1991 as amended. “These are matters that must guide the court in its determination, remembering at all times that there is a constitutional presumption that the best interests of a child are to be found within the family unit and that that presumption must permeate the adjudication process,” he said.
He referred to the court’s obligation under section 24 of the 1991 Act to have regard to the welfare of the child as the first and paramount consideration and in so far as practicable to give due consideration to the child’s wishes. “The views and testimony of the child have been carefully noted and taken into consideration by the court. The court must, and has, also carefully considered the rights and duties of the parents of the child both under the Constitution or otherwise. Additionally, in determining what is in the best interests of the child, the court has had regard to a number of relevant factors and circumstances many of which are set out in more detail and in a different context at section 31 of the Guardianship of Infants Act 1964 as amended.
“These include but are not limited to (1) the benefit to the child of having a meaningful relationship with her parents and of maintaining sufficient contact for that purpose; (2) the ascertainable views of the child, bearing in mind that those views may not be in the child’s best interests; (3) the physical, psychological and emotional needs of the child; (4) the likely effect on her of any change of circumstances; (5) the history of her upbringing and any physical or psychological harm which she has suffered or is at risk of suffering; (6) the impact of household violence that has occurred; (7) her age, special characteristics, and social, intellectual and educational needs; and (8) the capacity of the parents to care for and meet the needs of the child,” the judge said.
The judge said he was also legally obliged to consider, when the statutory threshold was met, whether a supervision order could be considered rather than a care order. “On the evidence the court considers it appropriate to grant a care order as opposed to a supervision order.”
The judge granted a care order until the child reached 18 and he considered this appropriate and proportionate. He made an order regarding the various recommendations of the GAL. This included that access should be at the discretion of the CFA and a prohibition on unannounced access and that the views of A to be taken into consideration in any decision regarding access.
The judge made an order that the case be reviewed at least four months before A started secondary school and again before her Junior Certificate; an after-care worker be appointed; an after care plan be prepared and an after-care review be conducted, not later than her 16th birthday; and the case be re-entered not later that A’s 17th birthday and to this end a GAL be re-appointed six months before A’s 17th birthday.
