2016, Vol 1, case 2;
2017, Vol 2, case 2;
2018, Vol 1, case 8;
2018, Vol 2, case 14;
2019, Vol 1, case 28
Care orders were granted in a provincial town for four children ranging in age from seven to 17 years after 100 days of hearings over three and a half years. The care orders were made until the children reached the age of 18 years or until 2022, whichever was earlier. In his judgment the judge was critical of the Child and Family Agency’s decision to take three of the four children into care initially as disproportionate.
The Child and Family Agency (CFA), also known as Tusla, had sought care orders for all the children until they reached the age of 18, which would have been in 2030 in the case of the youngest child. During the course of the hearing, the court heard evidence from 31 witnesses, including various social workers, psychologists, a Garda specialist child interviewer, the GAL and the mother. The guardian ad litem (GAL) supported the application.
The hearing began in January 2016. On the fourth day of the hearing the judge enquired if evidence would be called from a child psychologist to determine whether the described behaviours of the children were organic or environmental in nature. The decision was made by the parties that a psychologist should be engaged. The proceedings were heard over the subsequent years having regard to availability of the witnesses and the availability of the judge to continue the hearing of this case.
In his lengthy written judgment, delivered in October 2019, the judge said: “It is indeed unfortunate that this case took such length to be heard and the delay encountered was clearly not in the interests of the children and the parties.”
The children are identified as child C, child D, child E and child F. The two older children of the family, the eldest child, A, and child B, were not the subject of the proceedings as they were now over 18. The mother fully contested the care order. Father X is identified as the biological father of child C and child D and Father Y as the father of child E and child F. Father X played no part in the proceedings, though he was legally represented. Father Y did not contest the care order but supported the return of the children to the mother.
There was evidence regarding sexual abuse perpetrated by father X against the eldest child, A, and the early sexual behaviour of A and B. Allegations of sexual abuse were made by child D against father Y and father Y did not play an active role in the proceedings, though he was present throughout. The parents separated after the allegations were made.
The children had been in care voluntarily and under interim care orders following child F being brought to hospital as an infant with an unexplained head injury. In early 2013, the mother attended hospital with child F having been referred by the GP in order to investigate the head injury. A soft body swelling was noticed over the left temporal side of the head and a CT scan showed a soft tissue swelling with a collection of fluid under the scalp. The social work team was called to investigate and a referral was made to Temple Street Children’s Hospital. The social work team interviewed both parents who were unable to give an explanation as to how the injury to child F occurred.
The other three children, C, D and E, were brought to the hospital and examined. There were no concerns identified from the examination of the children. The social worker decided, in view of the unexplained injury to child F, to take the four children into care. A decision was made by the parents to agree to voluntary care.
While in voluntary care various issues concerning the behaviour and needs of the children gave rise to concern on the part of the social work department in the area, and when the parents withdrew their consent to voluntary care the CFA sought care orders for all four children.
In the course of the care hearing child D made an allegation of sexual abuse against his step-father, Father Y, which was investigated by Gardai. Prosecutorial privilege was claimed by the State in relation to the Garda interviews for a period, which contributed to delays in the hearing.
In his judgment the judge stated that the decision to take the four children into care at the hospital in early 2013 was not proportionate. The injury to child F required further investigation and necessitated her move to Temple Street Hospital. The other three children were brought to the hospital that evening and were medically examined. There were no concerns reported in relation to the presentation of the other three children. While the injury to child F remained unexplained at that time, there was no clear risk to the other children. The judge determined it was not proportionate for the social workers to take the other children into care without evidence of neglect or ill-treatment pending further investigation by the social work department.
In his judgment he said: “The catalyst for these proceedings was the presentation of the mother with [child F] at the hospital on 11 January 2013. No explanation has been given as to how this injury was sustained by the child. The court accepts that this is unfortunate and is of concern. However, the court, on the evidence presented, finds that the injury was not intentionally inflicted by any person and that it comprised an accidental injury. The court does not find that the injury to the child meets the threshold for making a care order in this case against the mother.”
The judge said the period that the children were in voluntary care, from 11th January 2013 until the date when the consent to voluntary care was withdrawn on 20th November 2014, was excessive. The parents were given little option in that they were offered voluntary care or the Gardai invoking section 12 of the Child Care Act and seeking emergency care orders. Preparatory work and recommendations for the parenting capacity assessment on the parents was completed in August 2013 but was not given to the parents until April 2014.
The judge was of the view that the parents should have been notified in a timely manner when the conclusion had been reached that the children would have to remain in care as it would have allowed the parents to make an informed decision whether they were prepared to consent to the voluntary care arrangement continuing.
He said: “With a voluntary arrangement subsisting, there was a clear absence of urgency on the part of the agency to progress matters. Delay is not in the best interests of the children or of the parents in child care proceedings. The delay in finalising the parenting capacity assessment was unacceptable.”
Evidence was given of social work department involvement with the family in the provincial town where they had lived from 2004 until 2012, when the family left to live in the provincial town in which the case was heard. Witnesses confirmed that while the family required assistance arising from the concerns raised, the issues which arose in the first provincial town did not warrant any further intervention by the social work department.
The judge found that the evidence relating to social work involvement with the family in the first provincial town did not constitute grounds for findings of neglect against the mother.
Evidence from witnesses confirmed that while the referrals did necessitate investigation and assistance being provided to the family, they did not require further social work intervention or an application for the children to be taken into care. The judge said: “This is the conclusion of the professionals which were dealing with the family during that time. No evidence was presented which would indicate that the social work department in [the provincial town in which the family previously lived] was neglectful in failing to recognise instances of what have been described as chronic neglect.”
The judge noted the allegations made by child D of sexual abuse by father Y. The judge further viewed the section 16(1)(b) Garda interviews with the child and read the transcript prepared by the Gardaí as part of their investigation. The DPP decided not to prosecute father Y, most likely on the basis that there was not sufficient evidence to bring a prosecution. The judge said: “On the basis of the evidence presented to the court during this hearing, the court is unable to find on the balance of probabilities that [child D] was sexually abused by [father Y].”
The judge stated he was surprised that the CFA did not engage in further investigation of the allegations made and failed to engage the appropriate professionals to advise on the seriousness of the allegations and whether the allegations were credible. The judge said: “When allegations are made by a child, they must be taken seriously by all the parties concerned … the court accepts that the mother acted reasonably and responsibly in the manner in which she dealt with the situation once the allegations were made.”
There was evidence about the mother referring to her concerns about various allergies or medical conditions of child C, child D and child E. The judge was satisfied on the basis of the evidence that the concerns and descriptions provided by the mother were reasonable. The mother acted appropriately in the manner in which she addressed the medical conditions and health concerns of the children. The judge said: “The court makes no adverse finding against the mother in this regard. The court finds that the social work team and the GAL placed too much emphasis on this information, and they should have sought and had greater regard for the explanations given by the mother and carried out greater levels of investigation into the allegations if they were seeking to ground them as a basis for the court making adverse findings against the mother.”
The judge said: “It is worrying that the [CFA] should have considered commencing a hearing in what was clearly a complex case without having the necessary evidence to present to the court in relation to children’s behaviours as reported.”
The psychological evidence
A clinical neuropsychologist was engaged to carry out an assessment on the four children. At the conclusion of his report, the neuropsychologist provided a clinical neuropsychological formulation and made a number of recommendations with regard to therapeutic interventions and supports to be put in place for each of the children to meet their specific needs as identified by the assessment.
Evidence was heard in relation to child E’s presentation when he came into care initially and his subsequent placement with his current foster carers, where the toddler displayed eating issues and behavioural problems. The psychologist attributed child E’s presentation to attachment difficulties or early childhood trauma and provided a timeline for this trauma over a two- to three-year period, including when the child came into care.
The judge said: “Having heard the evidence in this case and the evidence of the mother in relation to the child’s presentation prior to being taken into care, the court finds on the balance of probabilities that the child’s presentation after coming into care was due to the experience of being separated from his parents and siblings in the first instance and then being separated from his brother [child C] a few days thereafter.
“Evidence in relation to the child’s presentation given by the public health nurse and by social workers from [the provincial town in which the family previously lived] in relation to [child E’s] presentation does not indicate that prior to coming into care there were matters of serious concern in relation to the child apart from a speech and language delay … The court can make no adverse findings against the mother in relation to the child’s behaviours from the evidence which was presented to the court in this case.”
The judge considered that it was “imperative and urgent that an autism assessment be completed on child E at the earliest opportunity.”
In relation to child D, who had exhibited some developmental problems in the first town the family lived in, the clinical neuropsychologist concluded that he had been exposed to trauma and something significant happened to him in early childhood.
The judge said: “The court has to state that it can attach little weight to the conclusions of [the clinical neuropsychologist] insofar as they relate to threshold in these care proceedings. The court finds that psychometric testing in respect of children may be of assistance in determining appropriate therapeutic interventions but is of little assistance in the formulation of factual evidence which might be detrimental to a party.
“While the neuropsychological reports presented are of assistance in identifying appropriate therapeutic intervention for each of the children arising from the tests undertaken, the reports, the sworn evidence and conclusion were not of a sufficient standard of evidence to make adverse findings relating to threshold in these childcare proceedings.
“The evidence given did not, in the opinion of this court, reach the required standard in this case to assist the court in making findings of fact. The reports are of benefit in identifying appropriate therapeutic interventions only.”
- Forensic and Clinical Psychologist
A forensic and clinical psychologist was requested by the CFA to provide a psychological opinion on the mother and father Y. The forensic psychologist met the parents to carry out his assessment, reviewed the documents provided and administered psychometric testing.
He found there were a number of discrepancies and inconsistencies in the information provided by the parents. In relation to the children’s presentation when they came into care, he observed that the mother did not appear to show significant insight into the observations or attribute any concerns to either their current placements or to diagnosis. He found that the mother’s conclusions appeared often to place very little weight on parental factors as a possible hypothesis relating to how some of the children behaved the way they did.
- The psychologist on behalf of the mother
A psychologist who gave evidence on behalf of the mother recommended that she engaged in individual psychotherapy. If reunification were recommended, it should be a graduated process and subject to progress being made across a number of domains.
In a subsequent report, the psychologist recommended that the mother be awarded unsupervised access of a longer duration. He recommended that child F be returned to the care of her mother without delay. He recommended that access with child E resume. The psychologist said the views of child C and child D should be canvassed as to whether they wanted to return to their mother’s care. The assessment did not elicit any concerns that the mother would pose a risk of harm to her children.
- The clinical psychologist
A clinical psychologist was engaged to carry out an independent assessment following the neuropsychological assessments of each of the children by the clinical neuropsychologist. The clinical psychologist did not recommend the reunification of the children with their mother in the short to medium term because of the enormity of the psychological changes required of the mother and the extent of the therapeutic work required by the children and the slow work involved in attempting to rebuild trusting relationships.
The psychologist’s recommendation was that the CFA and the mother would focus on appropriate steps for rebuilding healthy relationships between each of the children and their mother. The judge was of the view that the evidence of the clinical psychologist was the most persuasive of the professional psychological evidence presented.
The judge acknowledged the assiduous efforts made by the mother on behalf of the children and it was evident she loved her children very much. She was fully cooperative with the CFA in their investigations and in her previous dealings with the social work department in the provincial town in which the family previously lived. The mother was always prepared for any access with the children and this was acknowledged by the social workers.
The judge said: “The mother is fully committed to seeking the return of the children to her care which has included the purchase of a dwelling house with sufficient accommodation for a family of four children. She has demonstrated a commendable attention to detail in relation to ensuring all relevant documentation was brought to the attention of her legal team and to the attention of the court in the defence of these proceedings.”
The judge was of the view that the mother failed in her duty to her daughters, child A and child B, to provide the appropriate boundaries to ensure that they would not engage in inappropriate sexual behaviour at a young age. The mother failed to provide adequate protection for her children from father X when she witnessed him inappropriately kissing the eldest child and yet maintained the relationship with him thereafter.
The judge said: “The court was not convinced from hearing the evidence of the mother that she is fully accepting of this failure even at this stage following a period of professional psychotherapy. This is the only evidence which was presented to the court in which the court is making a finding adverse to the mother. However past behaviour can be evidence of future behaviour.”
The judge concluded: “[Because of] the failure of the mother to take appropriate measures to protect [A and B] from the [father X] and, because of the necessity for engagement with ongoing psychotherapy to address those deficits, this court was satisfied on the balance of probabilities that the children’s health, development or welfare is likely to be avoidably impaired or neglected and that the children require care or protection which they are unlikely to receive unless the court makes a care order in respect of the four children in this case. The court finds that would not be proportionate in all the circumstances for this order to be made for full duration in relation to all of the children and the court is making a care order in this case until each child reaches 18 years of age or the 1st November 2022 whichever is earlier.” It was noted that both child C and child D would attain their 18th birthday within this period.
The judge stated he was satisfied that the children’s health, development and welfare was likely to be avoidably impaired or neglected and required care or protection which the children were unlikely to receive unless the court made a care order under Section 18 of the 1991 Act. The judge was satisfied that a supervision order would not sufficiently address the children’s right to care and protection. A care order was made until 2020 in respect of child C and until 2022 in respect of child D, child E and child F.
The judge directed that care plans be produced for all children within two months, and that all recommended therapies be provided for them. Child in care reviews should be updated at six-monthly intervals, with family reunification considered. Access with the mother was to be at the discretion of the CFA, with regard to the wishes of the children, and measures taken to support the mother in having optimal access with the children. An autism assessment of child D should be undertaken as a matter of urgency.