A full care order until the age of 18 was granted in the District Court for a young girl (A) in a long-running case that was described by the judge as “the perfect storm”. The child’s biological father had contested the order, wishing to care for her himself. However, the foster carers who had cared for the young girl since her admission into their care in 2010 also wished to care for her and the relationship between the child’s father and the foster carers had become fractious and contentious. The case was heard over a two-year period with 34 days’ hearings in court.
The judge found compelling reasons as to why the child’s welfare could not be provided for in her father’s care in that he was unlikely to be able to provide for her “emotional needs and psychological security, certainty and permanence.” The mother consented to the order.
Initial two year short term care order
An initial two year short term care order had been granted in 2013. The initial care order application under section 18 of the Child Care Act commenced two years after A’s admission into care and had first been listed in 2011 and comprised 15 days of substantive hearing with a further eight days of hearing of contested applications for adjournment of the substantive hearing. In 2013 a short-term care order was made for just over a period of two years. The child’s father consented to that order, the child’s mother did not appear on the date the order was made.
An agreement had been negotiated between the then HSE, the father and the guardian ad litem (GAL) for the period of the two-year care order, however the care order was not conditional on that agreement. The court granted the two-year care order under Section 18 (1) (a) and (b) on the grounds of neglect, “(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused”.
These grounds of neglect were not contested by the mother or the father, although the court was not clear of the full extent of the father’s involvement in her care. However, the father did contest the second leg under which the short-term care order was granted,
“and that the child requires care or protection which he is unlikely to receive unless the court makes an order under this section.”
The mother did not contest this.
In its judgment, the court noted that the case had come before it 116 times between 2009 and 2013. During the two-year care order itself, the case came before the court a further 12 times and “it became clear during that period that the CFA intended to apply to have the two-year care order extended and that any application to extend the two-year care order would be opposed by the father.”
Subsequent care order hearing
In early 2016 the CFA made an application under section 18(2) of the Child Care Act 1991 for an extension of the two-year care order until the child’s 18th birthday. The matter was in court for a further 95 days. The hearing of the extension of the care order commenced in October 2016 and was heard on 34 days until March 2018, the judgment of which was delivered in June with reasons given in October 2018.
The burden of proof lay with the CFA while the standard of proof was the balance of probabilities.
Witnesses called by the CFA included a psychologist, a fostering link worker, a fostering team leader, a counselling psychologist, an attachment expert, two clinical psychologists, the foster carers, the social care leader and two social workers.
Witnesses called by the father included an independent social worker, a national school teacher, and an employee from GALRO, a support service for children and adults, specialising in intellectual disability, autism and behaviours that challenge.
The guardian ad litem to the child also gave evidence.
The child had been placed into a long-term approved foster placement in 2010. She continued to reside there during the subsequent care order hearing which ran from 2016 to 2018 and was contested by the father who wished have his daughter in his care. The court however found that there were “compelling reasons why [the child’s] welfare cannot be provided in her father’s care as he is unlikely to be able to provide for her emotional needs and psychological security, certainty and permanence”.
The court cited SHB v CH, 1996 1 IR 237 regarding the competing rights of the father and the child:
“It is true, of course, that the rights of the father must be safeguarded as far as practicable, consistent with discharging the primary obligation. But when the consequences of any encroachment on the respective rights is considered, it is easy to comprehend that the child’s welfare must always be of far graver concern to the Court. We must, as judges, always harken to the constitutional command which mandates, as prime consideration, the interests of the child in any legal proceedings.”
The court noted that it was the unanimous opinion of all the experts called that the child should continue to live with her foster carers where she had her primary attachment. The central issue for the court was security, certainty and permanence for the provision of the child’s emotional needs. Any further uncertainty would have adverse effects into the child’s future, particularly in relation to her mental health.
Hearsay evidence from the child was admitted following a number of applications under section 23 of the Children Act 1997 as had been given in evidence. Further hearsay evidence of the child was admitted as received on audio and visual in evidence. The issue of weight to be given to the admitted hearsay evidence was a matter for the court. None of the section 23 applications were opposed.
The father objected to the care order being extended until his daughter reached the age of 18 which was made under section 18(2) of the 1991 Child Care Act. In order for the court to extend the care order pursuant to 18(2) the court must be “satisfied that the grounds for the making of a care order continue to exist with respect to the child” (Child Care Act 1991 18(2)).
The court was satisfied that that it was not limited to extending the care order only on “the basis of being satisfied that the grounds for the original care order continue to exist, rather the court may extend the order on the basis of being satisfied that the grounds for a care order continue to exist.” Reasons for giving the decision of the long-term care order in 2018 were delayed for several months due to a number of factors.
During the second set of proceedings the mother had made allegations that the child’s father was not committed to A and the judge noted in his judgement that he found this suggestion “manifestly untrue”.
In relation to the foster carers, the judge found that they had provided her with good day-to-day care within a family structure and had provided properly for her health and education as well as emotional support. He found there to be a good relationship between the child and her foster carers.
Issues within the case
Different issues arose during the care order hearing such as the possibility that A was aware of the negative dynamics between her foster parents and her father, that she had overheard her foster parents discussing the court proceedings and that the child had made statements to her foster carer and GAL in 2016 regarding what she had overheard.
The judge found that it was not likely that the child had created her own version of events and that on the balance of probabilities the foster carers had discussed the court proceedings in her absence or in her hearing and that if she had overheard them speaking then they had not sufficiently safeguarded against that happening.
There had been evidence that their parenting style was strict, however the court found that while it was not alone acceptable, that it had been beneficial to the child in the context of her behaviour on admission into care.
It came to light during the proceedings that the foster parents were involved in repossession proceedings with regards to their home and some adjacent land. The existence of these proceedings was only brought to the CFA’s attention by the father’s representatives. The foster mother denied that the proceedings were causing her stress and said that she had left it to the foster father to deal with it. However the court found this to be implausible and that her demeanour while giving evidence indicated the opposite. Furthermore, the court did not accept the foster father’s evidence that the repossession order was not a source of stress to him. He noted that the foster parents should have informed the CFA of the existence of the repossession proceedings.
The court also noted that when assessments, including a psychological assessment, was being carried out on A, the clinicians were not aware of the existence of this stressor and therefore were unable to take it into account and assess its effect on the child, in the context of assessments relating to her behaviours and her emotional and psychological well-being.
The court found that one of the on-going difficulties of the case had been that the evidence took such a lengthy time to conclude.
Conflict between the foster carers and the biological father
A social worker involved in the case for 13 months between 2012 and 2013 had formed the opinion that the foster parents did not support the relationship between the little girl and her father and while the issues that had given rise to this were short-lived ones the court found that the potential effect was the child’s perception would be that “there was no relationship or a conflictual relationship between the foster mother and her father, and that the foster carers were dismissive of her father and her identity.”
The CFA however had conducted an investigation into the situation and concluded that the allegations did not constitute a serious concern. In the court’s opinion the occurrence of the incidents (discussed in evidence) and “the denial of their potential effect as being of concern in the context of appropriate support for the relationship of [the child] with her biological family and her identity.”
Access was a contentious issue within the proceedings with a lot of evidence in relation to the child’s wishes as to suspension or frequency of access which had been relayed over the years by the foster mother. The court found the requests apparently made by the child to have been “uncharacteristically exact with regard to occurrence, venue, frequency and supervision”.
In his evidence the foster father had said that the child was looking for less access and was not being listened to, while the foster mother had told the court that the child “sets the access”.
The court found while the voice of the child was of extreme importance in respect of all arrangements pertaining to her care it was a misconception to equate that with allowing the child to set access. “What should occur is to listen to the child and incorporate whatever may be said into the decision but not so that the child dictates the decision. What should not occur is for the child to take over the decision making or even to be allowed to believe that the decision is solely theirs.”
The independent social worker for the father had told the court that the child was given too much power in relation to decisions around access, other experts concurred.
The father had contended in his evidence that the foster carers had dictated the terms of access to the child and then she had repeated them as her wish. On the balance of probabilities, the judge did not find this to be true. However he did acknowledge that in the “context of their misunderstanding or misconception regarding the voice of the child, it may be that they have facilitated her in being the decision-maker in relation to access.”
The court found that the child had a clear sense of her biological family and had managed to maintain a good, warm relationship with her father despite the difficulties in setting up access and the gaps in access.
The court found there to be no relationship between the foster carers and the father and that the father had a “deep-seated sense of injustice against the CFA and all or any of its agents.” Clinical psychologist 1 had found in his assessment of the father that his sense of injustice predated the proceedings and went back to his teenage years but had been worsened by his involvement with the CFA in relation to his daughter. This sense of injustice had resulted in the father allowing his personal interactions with the CFA and the foster carers to be inappropriately affected.
The child had reported her father had an angry demeanour towards the social workers and foster carers and the court had observed the father to be “both truculent and taciturn in giving his evidence”. The effect of the father’s demeanour on his child was what concerned the judge as well as his breaching of access agreements as to what should occur. The child’s reporting of her feelings around these accesses was of confusion and panic because her father did not tell her where they were going. It was the contention of the CFA that he was not attuned to A’s emotions or her needs.
A serious breach of his daughter’s trust was highlighted by the fact the father made 25 audio recordings of his conversations with his daughter during access visits between 2016 and 2017 without informing her. Access was immediately suspended when this came to light. Clinical psychologist 1 described it as a misjudgement by the father who had made the recordings because he was not being believed in relation to statements A was making to him.
During one of the recordings the child made an allegation that she had been slapped and shouted at by her foster mother but this was retracted in an interview at a later date. Due to the retraction, the court was unable to make a finding of fact in relation to the allegation and whether it was true or not.
With respect to expert evidence from clinical psychologists, the judge was satisfied that the child’s main attachment figure was her foster mother, that the child should continue to live with her foster parents and that it was in her interests to maintain her relationship with her father and, indeed, strengthen it. The judge also agreed with expert evidence that there had to be an obligation between both the foster parents and the father to support and respect one another’s relationships with A.
Clinical psychologist 2 who also carried out an assessment of the father found during the assessment that it was clear “the barrier to progress on [the father’s] side is suspicion and hostility towards the agencies of the state responsible for [A]. He must revise this opinion.”
The clinician was of the view that the child had too much information and should not be privy to her carer’s opinions of her father’s plans and his of theirs.
He recommended that the father engage in supportive psychotherapy “to help him come to a better understanding of his character style and personality and also those traits suggestive of an ASD (autism spectrum disorder) diagnosis.”
However, this recommendation was delayed as it took many months for the CFA to source the psychotherapist in order for the father to progress towards access again. Clinical psychologist 2 also recommended a full assessment of child attachment to be carried out using a standardised format and there was a delay in this process also.
He also recommended that the foster carers and father be encouraged to change and moderate the way they communicated with each other and for the child to be aware of this. “Regretfully it has not yet occurred,” noted the court in the judgment, “as the guardian has said, this is the crux of the matter.”
Clinical psychologist 2 recommended a period of 12 to 18 months be allowed to test the whole process, however due to the delays goals were not achieved as all of the elements were required to take place simultaneously. No prospective reunification could be informed. This report from the psychologist had been given in the context of the disruption of access due to the audio recordings.
In the clinician’s opinion there were huge barriers to the father’s progress forward including his lack of trust with the social work department, his restricted understanding of emotions and how they govern behaviour between people, his concrete view of language and his rigid approach, his failure to recognise difficult interactions, his significant lack of awareness of the inappropriateness of his language and behaviour towards others and how he can become hostile very quickly. The court accepted these opinions.
In evidence the clinician had told the court that “to be exposed to on-going conflict between foster carers and parents completely undermines the child’s sense of security and well-being. And we know that the continuity of problems that can emerge in later life from children who grow up in an atmosphere of conflict predisposes them to significant mental health difficulties and there is an over-representation within the mental health system and within the judicial system of people who have been in care compared with the rest of the population.”
The clinical psychologist who carried out the attachment assessment on A found that she had an insecure attachment pattern and felt a pervasive and uncertain threat of losing her foster mother, her foster family and network of relationships. He found that her father’s commitment to caring for his daughter full-time contributed significantly to her fear and that while she wanted him in her life and he was extremely important to her the simplest way to resolve the situation would be to give certainty to the child in her current placement.
She did not perceive her father as a parent to her, this was partially as a result of the father’s own difficulties in thinking and acting parentally towards her and it also reflected the restricted nature of their relationship.
The assessment found that “her father’s anger was particularly problematic for her to handle, as she cannot make sense of it” and that she sensed her father’s desire to replace her foster parents and this elicited a fear in her of losing her attachment figures. “Her father’s brusqueness and lack of any need to be socially rewarding or pleasing, may be related to his possible diagnosis of Asperger’s syndrome”.
The psychologist found that due to the ongoing atmosphere of fear and insecurity around her placement, the child was growing up without an attachment relationship that she could rely on as permanent. “Relying upon an enduring relationship is the bedrock of attachment, and [she] is rightly and understandably insecure about whether her attachment relationships will continue to be available to her until she is less in need of them.”
He found that the child did not view her relationship with her father as one she could rely upon for nurture and protection which made the prospect of living with him “deeply frightening” and brought about her wish to restrict her contact with him. The judge found the conclusions of the report to be reflected in the reality of the evidence and accepted the conclusions.
The two-year care order agreement
An agreement had been negotiated between the then HSE, the father and the guardian ad litem (GAL) for the period of the two-year care order, however the care order was not conditional on that agreement. The agreement failed and did not lead to an increase in access as planned and anticipated.
In his judgment, the judge noted that the CFA and the guardian accepted the wishes of the child at face value regarding not wanting to attend access and in turn they did not support any increase in access “on the basis it was in the best interest of the welfare of the child.”
There was a multi-disciplinary team (MDT) but this did little to progress the agreement and in the judge’s opinion did not “demonstrate any real capacity to resolve the issues that existed prior to the two-year order and did not address the issues around the deficits in the foster carers’ support for access and the relationship between father and [A].” No progress was made.
In his evidence the father said that he had understood the two year plan had been to facilitate the gradual return of A to his care. He had recalled access stopping for one year plus during this time but this was not due to anything he had done. He did not accept that A was attached to her foster mother and believed that any attachment was “twisted or tainted”.
The judge noted amongst the GAL’s views that the case had needed experienced social workers across the board and it did not have them. She was also of the view that for reunification to have occurred there needed to be a relationship between the foster carers and the father and a functioning social work team and that none of these elements were present. It was the GAL’s view that they had gone beyond the timeframe that was viable for reunification and what had happened in the early stages of the case precluded progression to reunification.
It was the GAL’s view also that there had been a delay in the father’s assessment on his asking to be considered as his daughter’s carer in 2009, this did not start until the social worker was appointed in 2010, his daughter had been under three years of age in 2009.
The GAL was satisfied with the foster carers in terms of their parenting but said their emotions were another issue and A had picked up on their emotions at home. The GAL recommended a full care order until the age of 18 and was of the view at the time and still of the view that after the initial stages in the case a full care order may have afforded the child the security to form a better relationship with her father. “The best chance for a relationship with her father is, if she is told that she can stay where she sees as a secure base.”
It was the GAL’s opinion that the behaviour of all three adults needed to change. In her report for the full care order hearing the GAL wrote: “If the adults managed to reach a consensus, an aspiration voiced yet never achieved in this case, [A] may be freed to move forward to establish a solid relationship with her father. For this to become a reality [A] needs to feel safe. This issue has been raised time and time again. In the Guardian’s view this is the crux of the issue…it is now time for [A’s] right to security to take precedence.”
The judge found on the basis of the evidence that the foster carers had not consistently followed up on training and counselling and that the CFA did not follow this up to see if it was required and if it had been availed of.
He noted that the child saw and had been allowed to see that her foster carers and her biological father had no relationship with each other and this was a burden for the child. The longer the legal issues would continue the more of a burden it would become.
The judge was satisfied that the grounds for the making of a care order continued to exist in respect of A under 18(1)(a) of the 1991 Act and the grounds under section 18(1)(b) continued to exist prior to her admission into care in 2009.
He also found that the “grounds under section 18(1)(c) exist in that the court is satisfied that [A’s] health development or welfare is likely to be adversely affected if the court does not make an order under this section. This is likely to occur because if returned to the care of her father it is likely that her emotional needs including the need for psychological security certainty and permanence would not be met and that in that respect that her health or development is likely to be adversely affected.”
He noted that it was the unanimous opinion of all of the experts that A should continue for the present to reside with her foster carers where she had her primary attachment.
The care order was granted until the age of 18 in order to provide A the security and permanence supportive of her health and welfare. The judge was satisfied that there were compelling reasons why A’s welfare could not be provided in her father’s care as he was unlikely to be able to provide for her emotional needs and psychological security, certainty and permanence.
In the interests of A’s psychological health the court recommended that the foster carers and the father take part in a process of mediation or facilitation to bring around a unified view regarding what was necessary for the child’s care and in her interest. This had to include a respect for each other’s roles and it might require that the case be transferred to a new social work team.