Following a four-day hearing the District Court in a regional town refused to grant an interim care order and instead made a supervision order for three children for a period of twelve month. The application was made in circumstances where the father’s previous convictions for sexual abuse had come to light, but there were no disclosures by the children that he had abused them in any way.
Social Worker’s Evidence
The social worker said that the Child and Family Agency became involved with the family two years previously, after it had come to light that the father had previous convictions for sexually abusing children. The social worker informed the court that the father had been convicted over 20 years previously for the molestation of two girls under the age of 12 and she said he had further previous convictions from when he was a teenager, relating to similar offences as against his sisters.
The social worker said that for the past two years the children were listed on the Child Protection Notification System and a safety plan was put in place. She said it was agreed that the father would leave the family home and return each evening for his dinner and to see the children. She said he initially moved in with his adult son, however, after a short period he moved to a house which was not disclosed to the CFA and the mother admitted that she took the children to see him there on two occasions.
The social worker said that when the CFA received a report from a forensic psychologist that found that the father was not honest and exhibited the traits of a person who was a danger to children, the safety plan was updated and it was made clear that there was to be no contact at all between the children and their father.
The forensic psychologist said that there were concerns with the mother’s understanding and a cognitive assessment found that the mother had a learning disability and struggled with her working memory. The social worker also said that they had been concerned that the mother herself was groomed by the children’s father, as they could not ascertain what age she was when they first met. However, it appeared that she was in or around 17 or 18 years of age.
The social worker told the court that for the previous nine months the children had been the subject of a supervision order. She said that a safety plan had been put in place and this plan was based primarily on the mother being a protective factor and being open and honest with the CFA. She said, however, that the mother struggled to accept the risk and despite details of past convictions being explained to her, she continued to support the view that the father was not a danger to their children. She also continued to advocate for the father spending time with the children.
The social worker informed the court that the mother had lied about the children’s contact with their father and in fact had organised for them to have access with their father on a number of occasions. This was in spite of the fact that she had informed the social work department that she would not allow any contact whatsoever.
The social worker said that her main concern was that the safety plan was not being adhered to and the father’s issues were being minimised by the parents. She said the children had been informed of the issues and safe touch has been carried out. She also said that the children had been referred for counselling.
In relation to the children’s care in general, the social worker informed the court that the children were very well cared for, presented well and had lovely manners. She said they were doing well in school and were involved in activities in the community and there were a lot of positives in relation to the children. She was concerned that they were quiet and closed off at times and she said that it can be difficult to get more than “yes” or “no” answers from them. She also said that they were nervous, worried and frightened about going into care and they did not want to leave home. The social worker told the court that one of the children felt that they were being punished for what their father had done in the past.
The social worker said that there were grave concerns about the father and the risk he posed. She said also that he continually denied that he was sexually motivated in the offences over twenty years previously and he continually denied and minimised his behaviour.
The social worker said that an attraction to children is not something which you can switch off. She told the court that the father was unwilling to engage with the conversation in or around his previous offending behaviour and that if he was open and honest, they could work with him and assess the risk appropriately. The social worker said that minimising and denying only heightened the social work department’s concerns and in those circumstances she felt that they were not able to protect the children correctly or safely.
The social worker was cross-examined by counsel for the mother. She put it to the social worker that the father had received treatment 20 years previously after he was convicted for child molestation. She also pointed out that a clinical psychologist employed by the CFA to carry out an assessment two years previously, when the previous convictions first came to light, assessed him as in the low to moderate risk of reoffending. Counsel for the mother accused the CFA of forum shopping and seeking further reports in the hope that an alternative clinician would assess the father as being a grave danger.
The social worker denied this and said that after they received the first clinical psychologist’s report, they then sought to engage a forensic psychologist who had an expertise in child sexual offending. Counsel also highlighted that the first clinical psychologist met with the father on five occasions over a number of months and reached his conclusions following that assessment. However, the forensic psychologist spoke to him on only two occasions and one of those occasions was over the phone.
Counsel for the mother said that after cognitive assessments were carried out, it was found that the mother had a poor working memory and had verbal comprehension problems. Counsel said that when you talk to her [the mother] you have to ask a question and listen to the answer and then examine the answer and ask another question. She pointed out to the social worker that some of her vagueness regarding access between the children and their father was down to not understanding questions and the social worker agreed that some confusion was possible.
It was also put to the social worker that over 16 months ago it was decided that the mother required psychosexual health assistance, in order to understand the father’s offending and that she needed that work to help with her children. The social worker said that that work had not been completed as it was a very unique service. However, counsel for the mother argued that a clinical psychologist would have enough skills to be able to assist with that piece of work.
In relation to access, counsel for the mother said that the children had access with their father each evening and then suddenly, after the forensic psychologist contacted the CFA, they had no access and this put a lot of pressure on the family. She put it to the social worker that supervised access could have been organised and the social worker said that they felt it was too risky for the father to have access with the children.
The social worker acknowledged that the mother must have been coming under immense pressure from the children to see their father because the CFA did not facilitate access. Counsel for the mother also pointed out that on the number of occasions where the mother did allow the children to see their father, there was always an adult present and the children were not in danger.
Counsel for the mother put it to the social worker that there had not been any complaints in relation to the father since the offending in the mid-1990s and that he had not come to the attention of the Gardaí and the Gardaí refused to check up on the family. She also stated that intimate examinations were completed in respect of the children and there was no evidence that the children had been abused sexually.
The social worker was also cross examined by counsel for the father. At the outset counsel for the father said that the father would give an undertaking to the court, to avoid his children going into care, including an undertaking to stay away from the children and their mother.
Again it was put to the social worker that because the CFA were not satisfied with the risk assessment in the first clinical psychologist’s report, which categorised the father as posing a moderate to low risk and recommended a two-year supervision of the family only, they employed a second psychologist, who found that the father posed a grave risk to the children. The social worker again denied that this was the case.
The social worker agreed that she had gone through good touches and bad touches and acknowledged that no disclosures had been made. Counsel for the father asked if the children displayed any sexualised behaviours or sexual knowledge which was inappropriate for the children’s age and the social worker said there was no evidence of that. She also agreed that no persons in the wider community had any concerns and that no reports had been made by the school or the children’s GP. The social worker added, however, that they knew from research that between five and seven per cent of children never made disclosures.
The social worker acknowledged that they were relying on the forensic psychologist’s report and that that report changed everything. She said that it was following that report and not following the knowledge that previous convictions existed, that they refused to allow any contact whatsoever, unless the father returned to the forensic psychologist for treatment. Counsel for the father said that the father was not offered supervised access and would have attended it if he was.
Counsel for the father put it to her that the father was being punished for not attending the forensic psychologist for treatment, by not allowing access until he started to engage with him and she pointed out that the relationship between the father and the forensic psychologist had broken down very early into the first interview and it was not appropriate for him to provide treatment in those circumstances.
Mother’s safeguarding assessment
The psychologist who carried out the safeguarding assessment with the mother gave evidence by video link. The psychologist pointed out that there was a lot of confusion when she asked the mother about her age when she met the children’s father. She said that she believed due to the way she answered the questions, that she was trying to hide what age she was when they started their relationship. The psychologist said that there were numerous occasions throughout the assessment where she believed the mother was not being honest.
The psychologist told the court that the mother needed to be fully aware of the nature of the concerns of the social work department. She said that the mother had been given information from the social work department about the father’s previous convictions, but she was not able to discuss with clarity what the previous convictions related to during the assessment. The psychologist said that she was either struggling to speak about the abuse or was struggling to understand or retain the information. She said it could be either avoidant coping or a denial of the totality of the information. The psychologist said that the mother was very sad and upset when she spoke about the children’s father not being able to see the children, but did not seem to be sad or upset or angry at the fact that he had not told her about his previous offending.
The psychologist was concerned that the children would not be in a position to make disclosures to their mother because they knew that she did not believe that the father was any risk to them. She said that the mother was unable or unwilling to comprehend that the father may harm the children other than physically and that there was also a risk that he could harm them by grooming them or changing their world views.
The psychologist informed the court that the mother acknowledged the previous issues and said that the father might be a risk in future to children, but not to her children. She said that she understood that the father was not allowed to have contact with the children and then a number of minutes later she asked the psychologist if the father could take her and their youngest daughter for a drive at the weekend.
The psychologist believed that the mother’s primary effort was with getting the father back to the family home. She said that the mother was a long way off coming to terms with the risk the father posed and was of the opinion that she did not have sufficient ability to safeguard her children. The psychologist recommended that the mother undergo psycho-sexual education, which she said should be delivered in accordance with her cognitive capacity and would need to include repetition.
Counsel for the mother ascertained that the psychologist was a co-founder of a clinic, together with the forensic psychologist who carried out the second assessment of the father, that specialised in risk assessments for parents with children in care. She admitted that they worked closely together and agreed that three psychologists in that organization carried out various assessment with the parents.
It was put to the psychologist that she failed to take into consideration the mother’s low verbal comprehension and cognitive difficulties during her assessment and instead accused her of being evasive. The psychologistsaid that she believed the mother was trying to muddy the waters about, for example, when she met the father and it was her opinion that she was well aware of when she met him.
Mother’s barrister: “I want facts and evidence as to how you came to that opinion.”
Psychologist: “It is my opinion that she was being evasive and regardless of her cognitive functioning, he is the only relationship she ever had and I believe she knew when that started.”
Mother’s barrister: “Looking at her information, it is all about trying to trick her.”
Psychologist: “I refute that completely, I asked about the positives of the family life and there was balance, I believed she was being dishonest and I probed that and she tricked herself up.”
Mother’s barrister: “Anyone who was that deceptive and cunning would never have asked if her daughter could go in the car with her father that weekend.”
Psychologist: “But someone who has been groomed and who was under pressure to arrange that appointment might.”
Mother’s barrister: “There is nothing there factually to suggest that she was groomed, there is nothing to suggest that she had a relationship with him until after she was 17½ years of age.”
Psychologist: “We know that she was manipulated by him, because he didn’t tell her about his previous convictions.”
Mother’s barrister: “That is dishonest by not telling her, but it doesn’t show that he manipulated her.”
Psychologist: “It manipulated her life and that distinction is not important as there was a manipulation.”
Mother’s barrister: “If you are going to be an expert witness, you have to be fair and you have to give the person you are assessing a chance.”
The psychologist was also cross examined by counsel for the father. It was put to her that her report was trying to establish that the mother was as young as possible when the relationship started, when the mother actually just didn’t have a clue. The psychologist replied: “No, I am trying to challenge someone, who with good reason was trying to avoid answering when she started a relationship with this man, when she may have been targeted as a child.” Counsel for the father put it to her that she had been trying to find evidence, but she had none.
Counsel for the father also pointed out that there had been no allegations for over 20 years and the psychologist was keen to point out that disclosures from children are very rare. The psychologist used a poem to explain why this was the case and said: “The reason I will never tell/ is because if they take away my cruel daddy/ they will take away my lovely daddy as well”.
The psychologist was also cross examined by the guardian ad litem (GAL) who asked her if she believed the mother could have been easily manipulated and the psychologist said that the mother was certainly vulnerable. She pointed out that the mother had been in only one relationship, and that with a man many years her senior. She said that the mother has little interaction with the outside world and had not developed her own personality and identity.
The psychologist was then asked if a person could develop insight with further work and he stressed that the CFA was only seeking a 29-day interim care order. The psychologist said that they could, but it would depend on how entrenched they were in the relationship and how their world view had been influenced by the individual who had harmed children and excused those behaviours away.
In relation to the mother’s cognitive issues, the solicitor for the GAL asked how long it would take someone to have ongoing critical analysis and the psychologist said that the word “ongoing” is the main issue. She said that the mother could take two steps forwards and one step back and it would take a lot of monitoring and honesty. The solicitor for the GAL commented that “perhaps the fact that they are faced with the children being taken into care, perhaps this might spur on work to be done.”
Father’s risk assessment
The forensic psychologist who carried out the risk assessment gave his evidence by video-link. He said that he had started working in the area of child abuse in the 1980s and had assessed and treated sex offenders for seven years. He said he also worked in the area of behavioural analysis, which focused on sexual offenders, and was now in private practice evaluating people accused of sexual crimes against children and risk evaluations.
The forensic psychologist said that the first piece of work carried out with the father was a validation statement. He said that this is was in two parts, the statement of validation and an integrity screen (which is a type of lie detector test with 85 per cent levels of accuracy).
The forensic psychologist said that his opinion was sought as to whether the father posed a risk. He said that the father failed the first integrity screen. This integrity screen related to his previous offending and the forensic psychologist found that the father minimised his behaviours and rationalised not telling the mother about his offending, because he did not believe he was a risk to his own children.
He said that the father’s account of his previous convictions was expected from someone who accepted he did something, but was not accepting the full detail of offending. The forensic psychologist was of the opinion that there was minimisation and a denial of things he had previously admitted to the Gardaí. He said he formed the view that he was selecting the information that he was going to share and was not honest. As the father had undergone a therapeutic process after his conviction over twenty years ago, the forensic psychologist said that he would have expected him to be more candid in his account and that caused him some concern.
The forensic psychologist said that the second questionnaire focused on the concerns of the CFA and he asked the father about his sexual thoughts or behaviours since his last conviction. The forensic psychologist was keen to highlight that among the question asked was whether he ever included children in his masturbatory fantasy in the previous six months. The forensic psychologist said that the father responded “no” to this question and all other questions asked. The forensic psychologist was of the opinion that as the father had a sexual interest in children as late as his mid-thirties, it was unlikely that it had disappeared.
The forensic psychologist told the court that where it was clear that the person was not engaging honestly, it did not mean that they were a risk, but it could indicate that there was a risk. Before the integrity screen was carried out, he believed the father was not being honest and being nervous would not result in a fail of the test. He said because the father failed the integrity test, the psychologist was not able to rule out that he was a risk both to children generally but also his own children and that he was not abusing his children.
The judge interrupted and asked if each question was put the person for the purpose of the integrity screen. The forensic psychologist admitted that the issue was that if someone failed one of the integrity screen questions, you did not know which question or questions he had failed on, and they failed the test generally. He explained to the judge that persons who have committed crimes against children or have an interest in children in their adulthood almost always include children in their masturbatory fantasy. He said the father failed the first questionnaire regarding his own children and that included the question of whether or not they were in his masturbatory fantasy.
The forensic psychologist pointed out that ordinarily, a failure on its own should not be relied upon for child protection. However, he said that the failure together with the opinion of the other psychologist was an issue. It was unclear what the father was seeking to hide, but he was of the opinion that the deception was in order to minimise the risk he posed to his and other children.
The forensic psychologist told the court that until the father undertook therapy, the risks could not be assessed and any therapy was to manage urges. He said that the father needed to engage honestly in an evaluation of risk.
The judge told the legal counsel to tell the parents to engage with whatever therapeutic supports were offered to them.
Counsel for father replied that the father was happy to go for therapy, but she went on to say that the trust had broken down between him and the forensic psychologist and the CFA seemed adamant that the father should attend with him in particular. She said that the father was very happy to attend with the clinical psychologist who conducted the first risk assessment.
Counsel for the mother said that the mother would go to whomever was necessary. However, she said that she was concerned that she should not attend someone who had given evidence, but rather someone who was neutral.
Mother’s risk assessment
The same forensic psychologist carried out a separate risk assessment of the mother and he told the court that he had a lengthy interview by phone with her, followed by two face to face interviews, and the assessment followed the same format as the father’s.
The mother, who had been assessed previously as having a mild intellectual disability, had an advocate with her to help her understand the questions and the process. The mother did not make any admissions in the questions relating to her awareness of sexual behaviour, but he found her response to the question on masturbatory fantasies regarding children confusing. He agreed with the mother’s counsel that the questions were invasive, but said it was well known that child pornography and indecent images could be used for grooming partners of people with a sexual interest in children.
The court heard that the mother made some insightful comments, but this was not underpinned by understanding and a critical reflection. The forensic psychologist said: “There was an ongoing ambiguity about when the relationship [with the father] may have begun, when she was a child”. He told the court, the mother changed the age downwards from 17 to 15 or 16 years in her statement. In cross examination by the mother’s counsel, she suggested that due to her mild intellectual disability, the mother was a poor historian and there was no evidence that the father had a sexual relationship with the mother when she was a child.
Mother’s barrister: “You know her working memory is not good.”
Forensic psychologist: “That is why I was giving her as much leeway as possible.”
Mother’s barrister: “We know she got it wrong regarding the age of the father’s previous children.”
Forensic psychologist: “How she came to do that was, she forgot she was in school or she concocted it as an explanation to fit with the father’s version of events.”
The forensic psychologist told the court that the mother originally said she met the father through his sons who attended the same secondary school. When the age difference was pointed out, resulting in them not being able to attend secondary school, the mother acknowledged she had visited the family home to meet the father when his wife was not there and there had been a mutual attraction.
The forensic psychologist, said given the father’s conviction for the sexual assault of pre-pubescent children, he could have targeted the mother at a younger age. He said the mother was reluctant to accept the possibility of the risk of harm from the father to the children and, although she had been told of the father’s previous child sexual abuse convictions over two years previously, it had taken her over 18 months to accept the information was true.
The court heard the mother had breached a safety plan put in place by the CFA after the father moved out, which allowed for one hour’s access with the children when the mother was present. The mother’s account of the breaches varied from leaving the children with her adult son when her mother was ill for 10 to 15 minutes, to later admitting to going to dinner with her mother and leaving the children with their father. The father called the mother to return as the Gardaí were at the house and the mother returned immediately, he said.
The forensic psychologist said the mother admitted in her statement to spending a weekend at the father’s home when the children were with their adult son. He found, “she was struggling to be honest, but it is likely she left the children alone [with their father].” The forensic psychologist said that the mother did not have the emotional and social skill set to separate out from the father and co-operating with the social work department could reveal more incriminating behaviour. He believed that the mother had made some progress, but said there had not been an honest and full response to social work concerns and she was permitting greater access than she admitted. He also said that it was worrying that he could not rule out she had a sexual interest in children, or facilitated an interest.
The mother’s counsel said there was no evidence the mother had a sexual interest in children and questioned the adequacy of the structures in place during the mother’s assessment to ensure she understood the process, as the advocate was not specially trained to work with someone who had an intellectual disability. The forensic psychologist explained he had given the advocate a detailed briefing and he spent significantly more time on the language used to ensure the mother satisfied herself she understood what was being said.
The forensic psychologist said: “I have enormous sympathy for the mother and genuinely believe she is a victim and her way of seeing the world is shaped by a man who sexually abused her as a child and she is trying to defend [him] and is lying on his behalf.” He also told the court that with the right kind of psycho-education work and support he would be hopeful the mother could safeguard her children, but he would be less hopeful about the father. He went on to say that this support would be long term and it might be difficult to acquire as it required a particular skill set.
Counsel for the father highlighted the contrasts between his report and that of the clinical psychologist some month previously, which found the father at a moderate risk of offending with a downward trajectory of risk. The forensic psychologist accepted that the previous assessment was a valid assessment and said each expert will have their own opinion. He explained low, moderate and high risks were terms used in risk assessments by actuaries to determine the risk of re-conviction and not the risk of re-offending.
The witness said that a 2002 SAVI (Sexual Abuse and Violence in Ireland) report found only five per cent of people reported allegations and he went on to say: “I’m concerned [the father] fits the profile of sexual arousal by and interest in children and once acquired you don’t just switch it off if committed to not doing [it]. There is no cure and someone who develops the propensity has the issue for the rest of their life. Therapy [is needed] to help someone to develop the skill set to control the urges for the rest of their lives.”
The father’s counsel put it to him that a previous report done for the courts in 1999 said the father did not appear to be a paedophile and his offending was opportunistic. He said it was a popular misconception that the term paedophile referred to sexual interest in pre-pubescent children. He believed the father’s assaults were pre-meditated and he used his children to access other children.
The forensic psychologist said he had different findings and the 1999 report was commissioned for the court regarding a custodial sentence. He said the father minimized the issues when he spoke of the sexual abuse of young relatives and he gave quite a cognitively distorted account to justify himself. He said this was characteristic of someone with this propensity.
The court heard that when the allegations of the sexual abuse of the young relatives went to the court over 40 years previously, the court applied the Probation Act and, following his conviction for separate offences over 20 years previously, he had attended therapy for 18 months. When referring to the 18 months’ therapy, the forensic psychologist said that “tentatively speaking, this was not a long period of time and on the lower end of the spectrum. In the UK the first four weeks of a programme with face-to-face hours, would be the same as his whole time in the community and [overall] 18 to 20 times more. In terms of the amount of work [needed] you are talking about changing thought processes and developing skills sets on managing masturbatory fantasies“.
The witness agreed with the father’s counsel that the amount of therapy was what was considered necessary by the therapist on the ground. He said a risk assessment required good data. In the father’s case, he told the court, new information had come to light since the 1999 assessment such as the relationship between the mother and the father. The court heard that the institute (that carried out the therapy) was unaware of the relationship with the mother at that time and that the institute might not have discharged him had they known. He agreed with the GAL’s solicitor that best practice in treating sex offenders in 1999/2000 was different to the present time and work had advanced.
The father’s counsel put it to the forensic psychologist that he had not put in place adequate supports for the father who had a mild intellectual disability, was functionally illiterate, and had previous head trauma injuries. Counsel for the father said the crux of the matter was the father had to understand what was going on and he had said he did not understand any of the questions and the forensic psychologist treated him as if he understood. The forensic psychologist disagreed and said he was aware from reports that the father had an intellectual disability and this caused him to be slower and more precise.
Counsel for the father also put it to the forensic psychologist that he was being inflammatory in his language with the social work department, in telling them that he would have been concerned about the father having dinner with his children that evening, which resulted in the CFA cancelling access with his children immediately. The judge said the father’s counsel’s opinion was subjective.
The forensic psychologist clarified with the court that his report was an opinion and not a finding. When asked by the GAL’s solicitor what work could be done with the father to reduce the risk for the children, he said he would caution against short term intervention as his engagement in a process would not bring about a cure. He stated that with his co-operation the father could get to a better place.
The court heard the children had told the GAL they wanted to see their father and the GAL’s solicitor asked him about the possibility of supported access between the father and children. The psychologist stated there should be no further contact with the father until more was known of the nature and extent of the risk and whether the father had found a mechanism for controlling his interests. He said that until there was a better sense of reality, it was safer to err on the side of making decisions the children might not entertain.
GAL’s solicitor: “Would the children benefit from tailored work?”
Forensic psychologist: “If it is the best-case scenario, the damage would be less, but if they have been abused and kept [it] under wraps [this would be different]. In the best- case scenario, the children have been drawn into secrecy and this will need therapeutic work.”
Counsel for the mother asked that the decision on the interim care order to be put back until after the mother had had a further assessment by the clinical psychologist on her capacity to parent. The father’s counsel supported this application. Counsel for the CFA opposed the application and argued that the court could finalise the decision regarding an interim care order and the report from the psychologist could come before the court when available. The judge agreed with counsel for the CFA and the case continued the following day.
Social worker’s updated evidence
When the case re-commenced, counsel for the father told the court that there was no up to date social work report before the court, in circumstances where the first two days of the case had been heard two months previously. Counsel for the CFA said she was happy to recall the social worker and the social worker gave evidence for the second time.
The social worker said that she had attended the family home recently where all three children were currently residing with their mother and older brother. She said that they were all on waiting lists to see counsellors. She said that enquiries had been made with a facility in Northern Ireland regarding the psycho-sexual educational piece for the mother as regards grooming and sexual abuse.
Judge: “What has happened since [two months ago]? When were these enquiries made?”
Social worker: “It was made yesterday.”
Judge: “Before or after I asked about it?”
Social worker: “After.”
Judge: “You told me in [two months ago], that you were working on getting someone to do that piece.”
Mother’s barrister: “Psycho-sexual therapy had been flagged by the CFA since [16 months ago] and that is 16 months where the mother hasn’t got those supports and services.”
Father’s barrister: “We contacted the CFA after the last court date in relation to therapies and we said we would do any therapies, but not with the [forensic psychologist who did the assessment] and we were told that we would have to do a risk assessment with him and that was not our understanding of what was discussed in court and therefore no therapies were provided.”
CFA barrister: “The precondition to any therapy was that the parents would need to be frank and open with the psychologist.”
Evidence of the adult child
The parents’ adult child gave evidence and he said that he was devastated when he found out about his father’s previous convictions. He confirmed that his father could not see his younger siblings. He said that he checked his mother’s phone daily to ensure she was not in contact with his father. He also said that he met his father each week to give him updates on how his siblings and mother were doing. He said that he believed his mom was a good mom and that they did not want for anything. He also believed that she had learned her lesson and said that he would cooperate in whatever way necessary to ensure that his younger siblings were not taken into care.
Counsel for the CFA asked him what he would do if he knew his mother was in contact with his father and he said he would contact that social work department straight away. He said that he needed to keep his siblings safe and his priority was the children.
Counsel for the CFA also said to him: “It seems that your role is the parent” and he agreed: “Yes, and it’s hard”.
The solicitor for the GAL asked him if it was his idea to check on his mother’s phone and he said that it was. He said that he was not under pressure from either parent.
Evidence of the guardian ad litem
The GAL was appointed a month before the application for an interim care order commenced. She said that she had met the children a number of times and the children were well aware of the proceedings and she believed it was having a large impact on them. She told the court said that the children were very clear that they were very sick of it all and had no intention of leaving their home, their community and their schools. She said that their wishes were to remain living in their home and community and with each other and their brother.
The GAL informed the court that she spoke with the father briefly and he regretted deeply the deceit and the silence over the years. She also spoke with the mother who confirmed that she had no knowledge of the father’s previous convictions and that he had a sexual interest in children and if she had known that she wouldn’t have entered a relationship with him.
The GAL described the home as being very homely and she was of the opinion that there was good enough parenting and there was no issue with that. She said all of the children were well cared for. However, she also believed that a lot of work needed to take place with the children, because they needed to understand what constituted child sexual abuse, as they saw it as an act as opposed to everything else that goes with it. She said that the history was very raw, especially for the eldest girl, as she knew that the information regarding her father’s previous history was out in the community.
The GAL said both in her evidence and in her report that “the children have been put in an impossible position. They have deep roots in their community. They feel it is part of their lives and the threat that they would be removed is very saddening. I think it’s not just being removed from their mother, but their community and school. One of the children said the only respite he feels from the pressure is when he goes to school. It’s very hard for him.”
The GAL said that she was regretfully supporting the application of the CFA. She said she found the case to be very difficult, but having visited the home recently, she believed there was, at the moment, emotional neglect and nobody was safe in the home. She said that everybody’s emotional needs were spilling over and there was no opportunity for the children to have their own narrative and their own needs dealt with. The GAL went on to explain that when she talked about emotional safety, she didn’t think that there would be emotional safety until such a time as work was done with the children and the mother.
The judge interjected and asked what work she was referring to. The GAL replied: “Psycho-sexual education work and educating the children about child sexual abuse and to have a realistic account of their father’s history and not what they are hearing from the mother and the community”. The GAL emphasised that this work had to happen regardless of whether or not the children were taken into care.
The GAL was cross examined by counsel for the mother. When questioned about the children’s wish to see their father, the GAL responded that the older two children had made it clear to her that if they wanted to see their father they would and they would not seek the permission of their mother or the CFA. However, she said that they believed they would be taken into care if they did see their father.
Counsel for the mother put it to her that the CFA put the mother in an impossible position, because they didn’t put access in place. The GAL agreed and said that the mother was in an impossible position in supervising access, because the father might have had influence over her. The GAL was of the opinion that the CFA did not look at the right of each child to see their father.
She said that there should be high intensity supervised access, that had not happened and the children said that they would like to see him. The GAL explained that high intensity supervised access was appropriate where there was high risk or outstanding risk assessment and where the supervisor was not just sitting in a room watching, but had a framework and was assessing what was happening.
When counsel for the mother said to her that the children clearly wanted to remain at home, she replied: “The children are not just saying that they want to remain at home, they are actually saying that they don’t want to leave”. The GAL also said that the children were angry because their mother facilitated access, which was not mandated, and that put them at risk of being taken into care. She said the children believed that what had happened in the past with their father had now become relevant to them and they did not understand why that was the case, when it had not impacted on them until now.
When it was put to her by counsel for the mother that it would be in the children’s best interests to remain at home and have those supports, the GAL said: “Yes,” but went on to say that there was so much emotional instability in the home. She said it would be the lesser of two evils and taking them even temporarily into care would have a profound effect and “we have to minimise the impact of this situation on the children and taking them into care is an excessive and not a proportionate way. They need to make sense of the situation, but that should be done at home”.
The GAL told the court that as far as the threshold for care and proportionality were concerned, the mother had an open door policy for any professionals and both parents deeply regret their actions. She said that the onus is on social services and the court to put a workable plan in place and it would require huge monitoring and huge service provision, so that the children got what they needed.
Counsel for the CFA stated that she said she regrettably supported the application and asked if the court refused to make an interim care order under section 17, would it not prolong the agony and emotional neglect. The GAL said that she believed the children were sick of proceedings going on for so long and the fear of being taken into care needed to be either taken away or not. She informed the court that the eldest child was under so much pressure, all you had to do was ask her one question and tears flowed down her face. The GAL said there were three children here whose lives were being turned upside down because of the actions of their mother and father.
The judge interjected and asked if the children would get emotional support if they were taken into care. The GAL said that In the short term, to be away from their home would give them emotional freedom. She added: “I think that [emotional support] could take some time and I don’t think it would be met under a 28-day order and there could be an opportunity to safeguard them in the short term, with a very clear plan going forward in their home.”
The judge also put it to her that she said: “Nobody has any safety left in this house,” and asked could we quantify or structure what that safety net needed to look like. The GAL said that the narrative from the mother needed to change and instead of saying you have to meet the GAL or the social worker, she needed to say: “I need you to meet with certain people so that you are looked after and I need to meet with certain people so that I’m looked after, so I can look after you”. The GAL explained that it was about giving the children emotional freedom/permission to engage with the services provided by the CFA and to be ok with being in a house that was very chaotic
The judge asked if a care order was made, were [the children] likely to go with the flow? The GAL believed that as they are such good kids, they would get on with things, because they are not defiant. However she said: “I think it would be devastating for them and it they were not together it would be even more devastating.”
The judge then asked that if coming into care was taken off the table and a supervision order with a structure and a safety net was put in place, might it be a better way to look at this. The GAL reflected on the question and replied: “It may be in the short term to allow it to come together and I think the children would appreciate the opportunity to be given a chance.” She went on to say that the children were still traumatised that they had to go through full medicals last March and they found that so intrusive.
Finally the judge remarked: “At this point in time, I get the sense from you, even if I was satisfied, and I haven’t made any determination that the threshold is reached, that it might not be proportionate to make that [interim care] order.
The GAL replied, “I’m stuck from a welfare point of view, because it may or may not be in their best interests, but I think these children deserve a chance”.
Undertakings by the Parents
Counsel for the mother indicated that the mother would not go into evidence until after a further parental capacity assessment was made by an alternative clinical psychologist. However, the mother gave two undertakings under oath:
- That she would not allow any unauthorised access with the father; and
- She would not have any contact with the father.
Counsel for the mother said that the mother knew that if she breached these, the sanction was potentially prison. She said the mother would also consent to a one year supervision order.
Counsel for the father also indicated that he would not go into evidence, but was consenting to a one year supervision order and he also gave an undertakings not to have any unauthorised contact with his younger children or their mother.
After the parents gave their undertaking submissions were made on behalf of all parties.
Submissions
Counsel for the CFA submitted that the threshold had been met for the granting of an interim care order. She argued there was risk of the children being sexually abused and said that they were not being protected by their mother. She said that the social worker had identified the basis for the ICO and she believed the risk was a live risk and in those circumstances she said that there was a mandatory duty on the CFA to intervene. She submitted that there was a duty to assess risk and the threshold had been met.
In relation to the father, she said that he had previous convictions of child sex abuse and had admitted to having abused relatives. She also highlighted that the forensic psychologist had deemed him to be a risk to his children and he did not engage honestly with the professionals. She argued that the father was not honest or trustworthy.
Counsel for the CFA also submitted that the mother had not measured the risk of the father and she had not protected the children, and argued that it was not suitable that an adult son of the parties would try to manage this risk. She argued that the risk was best managed by the children being taken into the care of the CFA.
Judge: “I asked if it was a better option if there was a supervision order with a safety net.”
CFA barrister: “The CFA have been involved for the past two years and there have been attempts to support the family and it is in the best interest of the children to be taken into care. To date, the mother hasn’t worked with the CFA openly and honestly. She will be supported if the children are taken.”
Judge: “She hasn’t been provided the supports so far.”
Counsel for the mother argued that the threshold had not been met and pointed out that the GAL had had concerns about the welfare of the children not being met by the children being taken into care.
In relation to the assessments, counsel for the mother submitted that there was no allowance made for the mother’s ability to understand what had happened and she did not get the psycho sexual therapy that was recommended. She informed the court that the children had not seen their father for more than six months and the safety plan has been complied with completely since that time.
Counsel for the father opened the case of Re H v R AC 563 where the judge emphasised the importance of a conclusion being assessed on fact not on suspicions. Counsel argued that the CFA cannot take children into care unless they have facts and she submitted that they were relying solely on the forensic psychologist’s opinion. Counsel said that following her cross examination, she was concerned about the integrity screening and argued that the forensic psychologist had not taken into account the father’s ability to understand.
Counsel also submitted that there was no evidence before the court that there was a difficulty with the first clinical psychologist’s report and in that case, the court would have to give reasons as to why it would depart from the findings of that clinical psychologist, that the father was a medium risk with the trajectory of risk facing downwards.
The solicitor for the GAL said that this was a very difficult case for everyone, especially the parents. He said that the GAL felt that the threshold was met and the safety, health and welfare of the children was likely to be avoidably impaired if the children were to remain with their parents. However, he said that the court then had to consider [what to do] if it was not in the children’s welfare to be taken into care, and the GAL did not believe it was in their best interest and welfare at this time. He said that the mother required psycho-sexual education and the children required sexual abuse education and the mother needed to manage the risk.
Decision
The judge took over an hour to reach her decision.
She said that the threshold had been met. She said that both professionals agreed that their engagement with the father was not honest and he sought to minimise what had happened in the past. The judge said that therein lay the risk and until such time as he honestly engaged and had the supports to assist him, the risk remained. She said that the mother needed therapeutic supports so that she was best placed to meet the needs of her children and that was why she believed the threshold had been met.
The judge went on to say that the court had been asked if taking the children into care was a proportionate response. She said that there were no other welfare issues, apart from the current emotional welfare of the children, and it was accepted by the CFA that the children were looked after well and cared for and there were no health or educational concerns. The judge said that the eldest adult child came into court and presented to the court as a fine young man and a credit to both his parents. She remarked that the GAL said that if the children did come into care, such was their upbringing that they would probably try to cope as best they could.
The judge stated that there were protective factors and the mother of the children was the person best placed to protect her children, but she would need to get the supports identified for her. She remarked that the mother’s engagement with professionals was different after the benefit of a cognitive assessment and the benefit of having an advocate with her. While the eldest adult child was a protective factor, she did not think it was fair that he had to monitor his mother.
The judge noted that the GAL had stated the eldest child was able to articulate her issues and that was a protective factor. She also said that the GAL was clear that the children do not wish to go into care and she was of the opinion that it was not in the children’s best interests at this time that they go into care.
The judge said that she was concerned that the CFA had not sourced the necessary supports for the mother as suggested by the clinical psychologist or for the children as recommended by the GAL.
The judge found that it was not proportionate to make an interim care order at that time. However, she remarked that there was work to be done and she made a supervision order for 12 months with a review in five/six months, and asked the GAL to remain involved in the case. She highlighted the following issues which needed to be addressed:
- Therapeutic supports for children;
- Psycho-sexual education for the mother;
- Therapeutic supports for the father;
- Risk assessment by alternative clinical psychologist for the mother;
Counsel for the father asked the court to consider making an order for access. The judge asked the GAL her opinion, and she said that the psycho-sexual education should happen first. Counsel for the father said that she would be looking for liberty to apply because if there was an unreasonable delay in the commencement of therapies, she did not want to leave it in abeyance.
The GAL also asked that the evidence of the case not be discussed with the children and that both she and the social worker would discuss a form of words with the mother which would be most appropriate.
