Care order proceedings for four children in a rural town, which had been adjourned mid-2016, resumed over a year later with a DVD of an interview with one of the children, who described being sexually abused by his step-father. The proceedings had begun 21 months earlier, when the children had already been in care for over two years under interim care orders, but had been adjourned to allow for psychological assessments of the children. Up to the resumed hearing the case had taken 28 days.
During this adjournment one of the children disclosed the abuse, and there were a number of subsequent adjournments as the Gardai carried out an investigation. At the time of the resumed child care proceedings they still had not interviewed the alleged perpetrator and there was no decision from the DPP as to whether charges would be brought.
The child who had made the allegation was the second oldest of the children who were the subjects of the proceedings. The mother’s two oldest children, A and B, were now adults, and therefore not involved in the proceedings. B and two younger siblings, C and D, were the children of the mother’s second husband, from whom she separated when it emerged he had abused the eldest child, A, the child of her first marriage.
The mother had married for a third time, and had two more children, E and F. The family had lived in another part of the country and had moved to the rural town where the proceedings were being heard. Here they had come to the attention of social services when the youngest child, F, a baby, was brought to the local hospital following a fall. She had not suffered serious injury, but social services were concerned and all the children entered care under a voluntary care arrangement. Later they remained in care under interim care orders.
When the full care order proceedings began in January 2016 the court heard evidence of social work department concerns that the children were not adequately supervised, and that they had various developmental, behavioural and other problems which the mother attributed to metabolic disorders and other physical problems, but which the social work department considered were due to their parenting. This led to the judge directing that assessments of the children be carried out.
There was over six months’ delay in carrying out these assessments. During this time D disclosed to his foster parents the sex abuse allegations against his step-father, whom he had regarded as his father, as he had never known his biological father. The disclosure arose in the context of his making a separate allegation against an older child whom he had encountered while visiting his brother’s foster family. He was interviewed by a male specialist interviewer. The court heard that the recording had been handed over to the Gardai and it was shown to the court.
DVDs of interviews
In the DVD the interviewer first discusses football with the boy. When he is at ease, the interviewer asks him to tell what happened. “We always played together, football and that,” the boy says in the DVD. “When I was five and seven I always had nightmares. I got scared and I went in to [step-father]. He put it up my bum when I lived in [the other town]. Then he went to sleep.”
Asked where this happened, he says it was in the house in the other town where his step-father had an office in which there was a bed.
Interviewer: “Can you describe how it was?”
Child: “Sore. Up my bum, in the middle. He was lying down. He had me curled up in the bed. I couldn’t see anything. It was pure dark. He was going up and down in my bum. I was eight or so. She [mother] was asleep. She never hears anything when she’s sleeping.”
Asked when he went into the room, the child says: “When I got scared. About once a week. It didn’t happen all the time I went in.”
Asked if his step-father had said anything, he says he had not. Asked if he told his mother he was scared [at night] he says he had not.
He also describes being abused in the area to which the family moved, where the couple had separate beds in their bedroom, in which a younger sibling also slept. He says the same thing happened there. Asked how many times it happened in all, he seems unsure, but eventually says: “More than 100.”
Asked if there was anything else he wanted to tell, he says no. The interviewer then returns to the subject of football, and the child relaxes and is laughing as the interview ends.
The interviewer told the court he was a social worker and had trained as a specialist child sex abuse interviewer eight years ago. He had conducted between 80 and 100 interviews, and had given evidence in both child care and criminal proceedings.
He said he had been contacted about seeing the child in March 2016, when the matter under discussion was the allegation made by D against the other child, described in court as Child A (not to be confused with D’s eldest sibling). A clarification meeting with the child relating to the incident with Child A took place at the end of the month, and at the end of this D said there was something else he wanted to disclose. This related to the allegation against his step-father.
He said that when the child mentioned the abuse by his step-father he started crying and “shut down” and this meeting ended. “The child sets the pace, it is a free narrative,” he said.
Asked if the allegations against Child A were more or less serious than those against the step-father, he said the allegation against the child related to one incident. There were many more incidents concerning the step-father, which were much more serious.
The mother’s barrister said she was seeking all the reports relating to D’s disclosures. The barrister for the CFA said he had no difficulty with that if all the details relating to the third party were redacted.
Fostering link worker
The fostering link worker for the foster families, who gave evidence of the allegations, described how they first emerged in January 2016. She had been contacted by D’s foster mother, with whom the youngest child, F, was also fostered, who told her that F had complained that D had touched her bum. When asked about the incident, D readily demonstrated what he had done, using a doll, and then added: “Daddy did it to me.” When asked to elaborate he told her that when he was upset he went into his parents’ room, his mother was asleep, his step-father comforted him and he could feel something hard against his back. It was sore, but he didn’t cry out, he pretended to be asleep. He told his foster parents it had happened both where the family had previously lived, and where they were now living.
The fostering link worker contacted the children’s social worker and the team leader. The foster carer took F to the local hospital for examination. The doctor there said there was no evidence of penetration but there “may have been touching”. Asked what the doctor’s exact words were, the link worker said she did not remember. She said she then advised the foster carers on a Safe Care plan, with increased supervision of the children.
In March, about two months later, a report came from the foster carer for child C, the eldest of the children in care. D had gone to her home for a few days to visit his brother, and was playing there with his brother, the foster carers’ grandchildren and another foster child, Child A. After dinner D came to her and told her Child A had kissed him and had touched him “down there”. Child A denied the allegation. D’s foster carer collected him and brought him home. D then told his foster mother that Child A had “put his privates up my bum, just like Dad had.”
She read from the foster carer’s diary: “[D] said Child A touched him inside his trousers. He took down his trousers and pushed D’s head down towards his trousers. He put two fingers in D’s mouth.” In a note she added he retracted this and said A had put his privates in his mouth and D put his private in A’s mouth. “He said he put his privates in his bum just like Dad. I asked him why he didn’t say this before and he said he forgot. Asked why he didn’t shout, he said he couldn’t, words wouldn’t come out.”
Later that month a risk assessment was carried out with Child A and also with D. Child A remained in the foster home, where child C was also living. Child safety plans and rules were outlined to both sets of foster parents, including stipulations that the children were to be supervised at all times.
Later there was an incident where C and A had gone to the cinema unaccompanied, contrary to the safety plan. The foster parents were at a function nearby, and had told the children to contact them when the film was over and to join them by taxi. They said that, given the stage of development of the children, they did not think it was a breach of the safety plan to allow the children go to the cinema, as other people would be around.
At a previous hearing the court had heard that the mother learned of this during an access meeting with C, and had raised it with the CFA. Following an investigation into the breach of the safety plan C was moved from the foster home to the foster home where D and F already were.
The fostering link worker said the foster parents were very apologetic and acknowledged their lack of judgment, and the impact their decision had on C, causing him to move foster home which he had not wanted to do. Because other people were around in the cinema they did not think the children “would be alone per se.”
At this stage the mother’s barrister received further documents from the CFA lawyer, having sought them earlier. She said it referred to statements that could only have come from this witness, and which were outlined in the Section 23 notification (relating to hearsay evidence), which had not been pursued and was with the judge in a sealed envelope. The CFA barrister said that the Section 23 notification was not a court document, only a summary of the evidence the agency proposed to give.
The mother’s barrister said she was looking for all the notes of all the interviews with the foster carers. “I don’t want my friend to trawl through all the notes in order to link them with other documents. This is not a criminal trial,” the CFA barrister said.
Mother’s barrister: “It is an adversarial process and I am entitled to the notes.”
Judge: “The case-law is clear. The lawyer for the respondent is entitled to have evidence in good time. A respondent in care proceedings is entitled to all the evidence, including case reports. Where there are allegations of sexual abuse [the lawyer] should have all the reports as if in a criminal trial.”
After a brief adjournment to discuss what notes were being sought, the CFA barrister told the court that the notes were available.
These then formed the basis for the continued cross-examination of the foster care link worker. The mother’s barrister quoted from the notes of contacts with Child A’s foster mother, which indicated that she found it hard to believe the allegation against the child. She was very upset and unable to sleep and Child A continued to deny the allegation. D had had a medical examination.
The fostering link worker said that this foster carer had been a foster carer since 1997 and this was the first time anything like this had happened. The mother’s barrister read from her report, where she said she “acknowledged [the foster carer’s] need to have anything possible to vindicate [Child A],” and asked her to comment on it, pointing out the foster carer did not believe D. “I’m trying to calm her down. We were all unsure what had happened,” the link worker replied.
Barrister: “Did it not ring alarm bells that there is someone who does not believe [D]? Did it not occur to you that these foster parents’ ability to protect was lowered?”
“Their judgment seems to be that both sets of parents didn’t think it happened,” the judge said. “I understand it’s best practice to accept what a child says and believe the child. Naturally any parent would be very concerned about such an allegation.”
The link worker said that the foster carer had told her that, despite what D said had happened, his presentation did not suggest it had. He seemed happy in his interaction with his brother after the alleged incident. After the incident, which C’s foster mother had reported to the CFA, D’s foster carer had asked her why she did that, and C’s foster carer told her she had to.
Asked when the foster carer became aware of the allegation of anal rape, the link worker said two days later. The mother’s barrister asked her about D’s foster mother saying D “hated Child A.” She also said he was very quick-tempered.
Judge: “This is the first time this has been said. It raises the issue of him possibly saying something untrue out of spite.”
The mother’s barrister read other sections of the fostering link worker’s full notes, including the question from D’s foster carer: “Would [D] have said what he did because [C] didn’t like Child A?”
She read from the link worker’s notes where the foster carer had suggested that D sign a letter saying nothing had happened in their (the foster carers’) house. They were concerned about allegations being made against them.
“Did it not occur to you that it was extremely inappropriate to ask a child to sign such a document?” the barrister asked.
Link worker: “Yes. But from their point of view it would be an added protection. I never would have said what they were suggesting was correct.”
The barrister read from the notes a report of Child A and C’s foster mother saying: “I know my son. I know he would never do such a thing. They were only out of sight for a minute.” She also referred to A and C “fighting like cats and dogs.”
Judge: “Does this go to the threshold?”
Mother’s barrister: “I want to show the attitude of the social workers. There is also a reference to the GAL saying to the foster mother: ‘You’re a mother a long time and as a mother you have to trust your instincts.’”
The link worker said that this remark had been reported by the foster mother, not to her.
The mother’s barrister said that in the link worker’s full notes there were references to 30 contacts between her and the foster families, yet in the report prepared for court there were references only to six. “Why did you doctor the report?” Link worker: “I did the report as I was advised to do.” Asked by whom, she said by her lawyers.
The CFA solicitor intervened to say: “I don’t think it is an appropriate question to this witness to ask about the preparation of reports for court. That is privileged between a client and their lawyer.” After some discussion between the lawyers and the judge, it was agreed to leave this matter until the following day, when the CFA barrister, who was not present, would assist in dealing with it.
The cross-examination of the fostering link worker continued on the issue of the breach of the safe care plan in February the following year. This had come to the attention of the Child and Family Agency when the mother had given a note on it to her barrister during Section 47 proceedings earlier in the year. Her eldest son, C, had told her during access of an unsupervised visit to the cinema by him and Child A.
The foster link worker said that up until this incident there was no indication either family was not upholding the safe care plan. The question had arisen of C being moved, and of causing him further upset as a result.
The mother’s barrister said the mother had made an affidavit outlining what she was told by C. The mother said C told her that he and A had to hang around for 90 minutes before the film started. The foster father had said they were dropped off before the film and would be collected after it, but they were 90 minutes on their own and then had to wait around for a taxi. “Did you raise this with the foster parents?”
Foster link worker: “It does sound familiar. Anything they said to me I would have reported back to the child protection worker.”
Barrister: “All that’s in your report is the foster parent’s version.”
The judge asked her if she had discussed the mother’s account of the incident, as told to her by C, with the foster parents. “It’s not in my notes,” she replied. She said the foster parents were devastated by C being moved from their care following this incident. “They accepted their lack of judgment and regretted it and especially its impact on C.”
Judge: “The cinema is one thing. But leaving children alone for 90 minutes is open to all kinds of devilment. I would be concerned about this from the point of view of risk assessment.”
The discussion on whether professional privilege attached to the way in which the foster link worker’s report was prepared resumed the following afternoon, after evidence was given by a consultant child psychologist who had interviewed D.
Consultant child psychologist
The child psychologist told the court she had interviewed D on four occasions between June and August 2016. She had waited until he had completed his interview with the sex abuse specialist interviewer in May. She outlined the questionnaires she had given to the foster carers and D’s teacher. These showed a lot of consistency. He had some difficulties in concentration and was below the 10th percentile in academic ability. He was easily distracted. Under the positive headings he was described as friendly and good-humoured. He had some speech difficulties and had attended speech therapy. The questionnaires did endorse his experience of nightmares and he continued to have some trouble sleeping. Asked about his own strengths he mentioned he was good at football and maths.
When she met him he was very, very polite, thanking her for her time. He was talkative, though his pronunciation problems affected his intelligibility at times. He talked about his interests and his best friend at school, his foster carers and his siblings. He spoke spontaneously about his biological father in the context of football, as he had learned the man had been a good footballer. He said his top wishes were to see his biological father and become a professional footballer.
Two weeks later she met him again and said some of the issues to be discussed might be hard, but he was not in any trouble. She said she knew something happened with his sister, F. He then talked about his step-father, describing him physically, and describing his home office in the town in which the family had previously lived. There was a bed there in which the abuse incidents occurred. Asked how many times he said 10 or 20. He used to wake up with nightmares and go into his step-father’s bed. His step-father put his privates into his bum. He said he did not talk about it then or later and did not think much about it at the time.
When the family moved the incidents continued, this time in the parents’ bedroom where the adults slept in separate beds. He said he told the foster carer about it. He said he felt happy when telling her. He said the foster carer started to cry and he realised it was a bad thing. He said he did not think anyone else knew about it while it was happening, but now the foster carers, social workers and guardian ad litem knew. He felt OK about that.
The psychologist said some children found it difficult that other people knew they were abused, but he remained quite calm, not anxious or avoidant, but matter-of-fact.
He said what happened with Child A was far worse than what happened with his step-father. He said they were playing hide and seek in the basement of A’s foster parents’ house. Child A kissed him and touched his privates outside his clothes. Then he pushed C’s head down towards his own privates, which were outside his trousers at the time. It lasted a few seconds and no-one else saw.
He said he felt sad. He went to find his brother and the other children, who were not in the basement. He went to the foster mother and told her what had happened and she started to cry. His foster carer came and brought him home. He confirmed this only happened once, but was concerned it might happen again and did not want to return to this house.
In relation to the incident with his sister F, he said it happened in his bedroom. She had asked him to rub her belly and he went down a little bit and touched her privates. She told their foster mother who told him what he did was wrong and he realised what his step-father had done to him was wrong.
“When he was talking about what happened with Child A he was physically uncomfortable, twisting his hands, trying to create a distance between himself and what had happened,” the psychologist said. “It was a different affect (demeanour) from when he was describing what happened with his step-father. This was congruent with him describing it as ‘far worse’ than what happened with [the step-father] and how he felt about it.”
At the third meeting the psychologist told him she wanted to review the earlier disclosures. He confirmed they were accurate and said he did not want to add anything. He said he felt able to tell his foster mother about what had happened with Child A because he had received information following the incident with F and realised what had happened with his step-father was wrong.
He said he wanted to keep himself safe in the future and understood what was appropriate and what was inappropriate behaviour, and that he could tell someone if anyone tried to do anything to him again.
At the fourth meeting he mentioned the interview he had had with a neuropsychologist, which had been challenging but he found the feed-back helpful. He went over the incident with Child A again. He said no-one had ever tried to kiss him before, no-one had ever tried to touch his privates. He expressed concern about his sexual orientation. In relation to his head being pushed towards the other boy’s “privates”, he said he felt his “thing” in his mouth and felt afraid. He was absolutely certain the incident happened and insisted he did not make it up to get A into trouble.
The psychologist said she gently probed this with him because the social workers had said that the foster-carers had said he “hated” Child A. When asked what should happen to Child A he said he should go to prison. When asked what should happen to his step-father he said the same thing, “jail”. He tended to look down when talking about Child A, but remained insistent that the incident occurred.
Judge: “What about the step-father?”
Psychologist: “He only said he should go to jail.”
Judge: “Did you gently challenge him on what he said about his step-father?”
Asked why the boy had not been examined on his levels of certainty about what had occurred with his step-father, she said it was because he said what had happened with Child A was much worse.
The judge asked her had he discussed the allegation he had made to his foster carer about anal rape by A, when he said it was the same as what his step-father had done. She replied he had not. The judge said that, while not seeking to belittle the seriousness of what happened, anal rape was more serious.
Psychologist: “I understand. But from the child’s perspective you look at the age and stage the incident occurred. The amount of information and corrective messages he received following disclosures about his step-father facilitated him making the disclosures about Child A.”
The CFA barrister pointed out that he had been in care since the age of eight, so was much younger when the incidents with his step-father occurred.
“There are different stages in a child’s psycho-sexual development,” the psychologist said. “At the incident with Child A he was 11 going on 12. It is a different stage of development in relation to his awareness of his own body. Obviously he had been having contact with Child A. Worry about not being safe going back to that setting could have contributed to his concern. He also mentioned his concern about his sexual orientation. At the time [of the interview] the incident was recent. There had been the passage of time with his step-father.
“There was a congruent affect [demeanour] of the impact of the Child A incident from the child’s perspective. If he was asked the same question today with further passage of time his affect may be different.”
She said the purpose of her interviews was therapeutic, not a credibility assessment. The credibility assessment was a separate piece being carried out by the CFA.
She recommended that D should get therapy. The foster mother was worried now about allowing him to go on play dates where the level of supervision might be unclear and where he might be vulnerable. She had advised that he should be encouraged to have play dates at home, with computers kept in common areas.
She said she had information from social workers on D’s early life experiences, including chronic neglect, a chaotic home life and the inability of his mother to meet his needs. The full impact of his early life experiences may not become apparent to him until later, perhaps in adulthood. They might if he was offered a therapeutic space. When children come into therapy they can process their experiences, she said. D would need help to navigate his psycho-sexual development.
He was a vulnerable child, which was shown by his inability to disclose what his step-father was doing either at the time it happened or when he came into care. It was only when the issue arose with F that he realised what his step-father did was wrong. F felt able to disclose immediately. The fact that the foster-carers responded in a supportive way was positive. He had language difficulties and bed-wetting into 2015 that did not seem to have a physical cause.
She recommended he have support in relation to his psycho-sexual development and in his transition to secondary school and in relation to seeing his biological father, to ensure he was not exposed to behaviour he found challenging. It was understandable he wanted contact, he may have curiosity about him, but in the light of the extended family history any contact should be managed in a way that his best interests were the priority. She recalled that D’s father had been accused of abusing A, D’s half-sister.
The cross-examination of the child psychologist began with the barrister for the guardian ad litem asking her about her impression of the standard of care D was receiving from his foster-carers. She said she had not made a home visit, she had just seen the foster carers when they brought D to the interviews. They described how he had progressed and he had good relations with their family. They had been shocked at what had happened, but seemed very committed to D, and also balanced that with attention to the needs of F. “I thought they coped well in a difficult situation,” the psychologist said.
She said they did not mention any concern about their own children or allegations being made against them.
Asked about the allegation against Child A, she said they were shocked, but were supportive of D. Whatever their own feelings, they stressed he was safe. They didn’t discuss what they believed themselves.
“The therapy has not commenced. Is there a need for a secure placement first?” the GAL barrister asked.
“Yes,” replied the psychologist.
Asked by the barrister for the CFA if she would be concerned for the therapy if the placement was changed, she said that would depend. It would be necessary to take into account the length of time in the current placement, and the attachment relationships from there. “I would be concerned about how he would form new attachments if he was moved,” she said.
“Would you be disappointed if there was no therapy for the child yet even though you recommended it over a year ago?” the judge asked.
“I would be disappointed for D,” the psychologist replied.
Judge: “Are you worried an opportunity has been lost?”
Psychologist: “It depends on what support he’s getting from his carers and what support they’re getting.”
Judge: “It’s been scientifically confirmed that coming into adolescence is the last opportunity for therapy to have a positive effect. Is that true?”
Psychologist: “Yes. It is a really important time for children to learn to cope and manage symptoms.”
The judge asked if it was the case that no therapy had been provided, and the GAL barrister said: “On the basis of permanency.”
The psychologist said that, based on her experience working in a child sex abuse unit, the professionals there were very keen that therapeutic support would be provided as soon as possible, provided there was a secure placement and therapy for the carers.
Judge: “Would this be a case where you would expect therapy to commence immediately?”
Psychologist: “Yes. Access to therapy [should be provided] as soon as the allegations are found to be credible. I did not do a credibility assessment.
Judge: “Would you be surprised that a credibility assessment had not taken place?”
GAL barrister: “Are you concerned that a length of time has elapsed without therapy? On 30th January you were contacted. It’s almost two years since then. A credibility assessment in relation to the allegation against the step-father still has not been carried out and we are still waiting for the Gardai to interview the relevant parties. Is that a good reason to delay the credibility assessment?”
Psychologist: “At the outset you have information-gathering. Sometimes it is not possible to get responses from the alleged perpetrator. But it did not stop us [in the specialist unit] from proceeding with the credibility assessment. We would have tried to form an opinion and proceed with the assessment.”
Asked by the judge if she would have been in a position to do a credibility assessment if asked, she said it would have been a different type of interview, as hers was to assess therapeutic need. The specialist unit where she had previously worked did interviews with carers, three or four interviews with the young person, and the credibility report was completed within eight to ten weeks. It was the practice also to view the Garda interview if there had been one.
The CFA barrister said that as he understood it what was being discussed was a credibility assessment in relation to Child A. The Garda investigation supplemented a credibility assessment in relation to the step-father.
In response to a question from the judge, the psychologist said that if a credibility assessment was done it would include inappropriate behaviour with the other child. She said she was surprised it had not been done.
The CFA barrister said that the credibility assessment had commenced, then the Garda interview process took over, running in parallel with it. The allegations in relation to Child A were not part of this case.
The judge said there were two issues: why the therapy had not commenced and why the credibility assessment had not been done.
The GAL barrister asked what was involved in support for the foster carers, and was there any reason why that had not commenced immediately?
“No reason I can see,” the psychologist replied. “Psycho-education is very important for those caring for children where there is trauma. It would involve educating them in normal development and how trauma impacts on that, on brain development, emotional regulation, academic attainment, etc.
“D had expressive language difficulties, it might make it difficult for him to communicate clearly. It can be a barrier to a child making a disclosure which is understood. There is also an issue around boundaries, independence, etc around the time of adolescence. Parents can be over-protective. It is very disappointing for D he has still not received any therapeutic support.”
Asked about the placement, where D was now sharing a bedroom with his brother, C, she said she had just learned of it this year and was very concerned. She did not think it in his best interests, given his experiences and the stage he was at. C was moving from a placement where he did not have any complaints. “Did he feel upset with D as a result?” Now he was going to be in a small bedroom with D. She was also concerned at the power imbalance and their history. He had been treated differently [in the family].
She agreed with the GAL barrister that he should have a separate bedroom, sharing a bedroom went against the advice on boundaries and personal space. There were at least eight children in this placement, including five children of the foster-parents. Some of them were adults. The GAL barrister said that at the moment there was no space to give the boys separate bedrooms. The CFA should consider some assistance to help the family give the boys separate bedrooms.
Asked when the mother knew of the allegations about the step-father, the psychologist said her impression was that the mother did not know of the incidents when they happened. D knew his mother had been informed and that his step-father no longer had access because of the allegations.
Asked by the barrister for the mother why she was not doing a credibility assessment, the psychologist said that the CFA had decided another psychologist would do this and she would do an assessment for therapeutic needs. She agreed that she understood the credibility assessment was in relation to all the allegations.
She said she had seen the social work reports, but agreed she had not seen the mother’s response to what was in them. She said the notes she had seen basically outlined what both sets of foster parents had said in relation to Child A’s allegations.
The mother’s barrister said that the foster carers had said that D told them he had “watched dirty things on TV with [his step-father].” The psychologist said she had not heard that before.
Asked about the allegations against his step-father, the psychologist said D had not dwelled on that, he moved within seconds to talking about the allegations against Child A. Asked about his concern about his sexual orientation, she said that was not particularly unusual in such circumstances.
Asked to comment in the change of affect (demeanour) in describing the two incidents, she said they were two very different experiences. He was now at a different stage of development, he was an emerging adolescent and the incident with A was recent. With his step-father it had happened a long time before, when he did not really understand it was wrong.
The mother’s barrister asked her if it was important for D that his mother had separated from his step-father at the end of March 2016. However, it was two months before she could meet him and assure him she still loved him, because access had been suspended by the CFA. “Do you think it would have been better if she could have met him sooner?”
“It is hard to say,” the psychologist replied. “He did not raise any particular issues in relation to access. He did not say, ‘I did not see my mother for eight weeks’.”
Asked about her reference to “chronic neglect”, the barrister asked her if she had spoken to D about this, and she said she had not.
The mother’s barrister said that the account from the foster link worker showed that the foster carer did not believe D about the Child A allegation. She had asked the latter’s foster-carer why she told the social worker about it, and the latter said she had to tell the social worker. She had told the foster link worker she was worried D would make allegations against a member of her family and if he did he would have to go. She wanted him to sign a letter saying they had never done anything to him as a protection for them, and the foster link worker said that they could not censor any disclosures he might make.
“Do you think they dealt appropriately with a serious allegation of oral or anal rape?” the barrister asked. “It was different from their reaction to the step-father allegations. There seemed to be disbelief on the part of the foster carer. We don’t know if that filtered down to D or not.”
Psychologist: “From my conversations with D I did not get that impression. He did not say he felt disbelieved.”
“Do you think that the foster carer’s initial wish that the social workers not be told, and wanting D to sign a document, would cast doubt on their suitability as foster-carers? Do you consider asking a child to sign such a document totally inappropriate?
Psychologist: “Yes. It highlights that they needed support at that time. Sometimes people say things that should be teased out with professionals.”
She told the barrister she had not assessed the mother for receiving the psycho-education needed for D’s carer. Nor had the mother received a copy of the questionnaire given to the foster-carer to fill in about D, it was for the current carer.
She told the CFA barrister that a secure placement was an important factor in the success of therapy. She told the judge again that she was disappointed therapeutic work had not yet begun.
Dispute over lawyer-client privilege
When the court came to consider the issue of the advice the fostering link worker had received in preparing her report for court, the CFA barrister referred to a number of judgments in the Irish and UK courts on lawyer-client privilege which had been raised by the barrister for the mother, arguing that they did not relate to a child protection case. In this case the purpose of the fostering link worker’s report was to convey to the court what the child said to the foster-carers, under the hearsay rule. This was an inquisitorial process. The court makes an inquiry. Reports are prepared in response. Notes about legal advice are not relevant to an inquiry, it was not appropriate that the respondent’s lawyer obtain information on legal advice prior to the making of the report. It had not been proposed to call the fostering link worker at all at the outset. She was a link in the chain of evidence.
The judge said it might be necessary to call the foster-carers. Mr Justice Carney had said they should be called [in such cases]. There had been cases around the country where they were called.
The CFA barrister said limiting the risk of calling the foster parents was in the interests of the welfare of the child. “My current instructions are not to call the foster carers. We have had evidence from the child psychologist and the video of the child. I don’t think it is essential to this case that legal professional privilege be lifted.”
The judge said that the case had never got to the point where the witness said she received legal advice in relation to her report. “What are you claiming privilege of? Was there legal advice or is it all moot?”
Mother’s barrister: “I asked why not all the contacts [with the foster carers] were included in the report. I asked if the report was prepared on legal advice. The link worker said ‘Yes’. Asked from whom, she said: ‘My lawyers’.” She added that if the court was happy the CFA had a legal privilege point it could ask it to be waived.
Recalled to clarify, the fostering link worker said that she was asked by telephone from the CFA solicitor to prepare a report for the court on what the child had said to the foster carers.
The mother’s barrister outlined the basis on which the court could ask that solicitor-client privilege could be waived, including “moral turpitude” where the legal advice was intended to thwart legitimate legal aims. The CFA barrister objected to this, stating that this issue had arisen in the context of his client trying to help the court, and also from the policy of the CFA of not bringing foster carers to court, especially in the light of the interests of children who have been traumatised. Calling foster carers to court could result in children losing their foster placements and the policy was applied nation-wide.
The judge asked the barristers to consider overnight how relevant the legal argument on privilege was to the ultimate outcome of the case. When the case resumed the following day the mother’s barrister said she did not wish to take up any more of the court’s time with the matter.
Forensic clinical psychologist
A forensic clinical psychologist told the court he carried out an assessment of the family following the presentation of child F to hospital. He saw both the mother and father in 2013 and completed 14 hours contact. Among the matters addressed was the veracity of the statements of the parents which led to child F’s admission to hospital. The psychologist said he requested a dossier of the notes and the social work file included notes with the mother and father prior to the referral, notes of observations of access and reports of documents on the injuries to child F. He said he was given a summary of interviews with the parents.
In the notes the mother was described as assertive and dominant but the social workers felt she lacked discipline in the way she handled the children. She was too casual and lacked organisation and she had a lot of physical complaints. It was thought she needed a relationship to feel secure. There was also a concern that perhaps she was not proactive in parenting and was controlling in the presence of the father as she spoke to him in a way which was unusual. It was noted when her father travelled over from her country of origin to Ireland she acted in a childlike way in his presence. The social workers reported once there were structures present the problems in the children’s behaviours significantly reduced.
The social workers observed the father and noted the children tuned into his interests at access. The father had little input and insight into the neglect. At access the children did not seem to gravitate towards the mother.
The psychologist said of the assessment: “The aim was not to catch the person out.” He said it was a simple process in order to ascertain the facts insofar as he could and to enable him to provide collateral information. He said he would give the person a right to reply and at the final session he would challenge the perspectives. “By them consenting to the assessment, I explain in advance [what is involved] and I would say it is important, if you choose not to answer, I can take a view on that as well. In the final interview I will be challenging you.”
His first interview with the parents was a joint interview in July 2013. He said “most people present well initially and the parents were engaging and spoke.” The mother appeared to be the dominant partner and spoke with authority. She spoke to the father in an information-giving way. She came across as pleasant and unconventional and demonstrated more social skills than the father. The father came across as pleasant, socially naïve and would become quite distracted. He was agreeable and submissive.
The psychologist said the father did not become upset when corrected by the mother. He said there were no other signs of tension or disagreement but noted that “tension might have been conspicuous by its absence.” He said: “Everyone I see at that time is cooperative and I’m mindful that the more comfortable they feel the more likely they are to disclose.”
He started his interviews with the mother first and went through her childhood and explored her past life and her family life now. Neither of her parent suffered anxiety. The mother said she had to seek out her own parents and her upbringing was marred by a sense that her parents were not available in her life. She described sexual abuse in the home when she five years old. She said her parents did not have traditional sexual values and were encouraging with her sexual experiences.
The mother described early sexual experiences at the age of 15 as she was left to her own devices. She was married at the age of 19 to a man who was the father of her eldest child. The marriage ended following a number of infidelities and the mother was adamant that she would not put up with him. She attended psychotherapy.
She then met her second husband and spent 12 years with him. She said “emotionally he left after five years” and she gravitated towards someone who put her needs first. She reported a history of problematic adult relationships, often felt alone and was seeking closeness.
The mother said her second husband sexually abused the eldest child. The eldest child took him to court in 2009 and he received a custodial sentence in 2010. The mother said that she was supportive of the eldest child and she felt like she had failed to provide a proper environment for the children. She denied calling the eldest child a liar when she had witnessed her second husband kissing her. She said she was trying to keep the family together.
The mother remarked she couldn’t see the wood for the trees and was not cut out to raise the eldest child when she was four. In the weeks after witnessing the kiss the mother booked the eldest child on a flight out of the country and then flew abroad with her second daughter. She said the second husband joined them shortly afterwards.
The psychologist noted there was a police report in this country dated August 2005. After that incident there was a period of six years before the eldest child disclosed the abuse to a social worker in the country they had moved to.
The psychologist said: “Her daughter experienced sexual abuse and her responses in 2006 showed denial.” He found her response to witnessing her second husband kissing the eldest child as a lack of concern and this occurred at a time when the second husband had left the relationship and she was hanging on. He said her coping responses were avoidant. The mother doubted aspects of the sexual acts the eldest child disclosed. He said: “Even the way she described the eldest child was very labelling.” She referred to the eldest child as “manipulating and catapulting herself into adulthood.”
He noted that the mother was unable to reflect on her own parenting style and she did not tend to contextualise her daughter’s development. There was no sense of her own treatment of the eldest child as a young mother. The mother had a problem engaging in reflective functioning and her descriptions told the psychologist about her schema.
He said: “A lot of what she was saying was that the eldest child was difficult and she was giving reasons why she didn’t take the right actions in relation to the second husband. She blamed the eldest child for sexual precociousness during her teenage years. She didn’t entertain hypotheses on the side of her daughter. There was a cognitive rigidity to do with emotional blocks and obstacles.”
The mother’s responses portrayed her view of herself as exceptional and free of shortcomings. He said she was reluctant to admit faults, blindly unfamiliar to her behaviour and was defensive to the feedback he gave. The psychologist concluded that there appeared to be a lack of insight on the part of the mother. She gave rational responses but was worried the psychologist would twist what she said and [her attitude to] the issue of her decision to stay with her second husband post-disclosure. She said the children wouldn’t exist if she left her second husband. She outlined steps she took to keep them safe and she clarified she was always present during times when the second husband was visiting the family home and she didn’t leave the children alone.
The judge asked: “Was the mother aware of the eldest child being sexually abused while the second husband was coming and going?”
The psychologist said: “She was aware he [second husband] had behaved oddly. She suggested the assessment focused on her decision-making in relation to the eldest child and I told her I was looking at an overall pattern. I wasn’t giving huge weight to the incident with eldest child.”
When the second husband was visiting the family home there was no discussion about any protective measure.
The judge asked if the mother accepted there was a need to be protective. The psychologist said she acknowledged inappropriate behaviour. The mother emphasised she was always a present parent and participated in the children’s activities, “the primary measure she took was to always be around.” The judge said if she were present the abuse could not have taken place.
“She showed good insight into her past, the difficulty was she seemed to have cognitive distortions that maintained a belief that the problem at the present was outside herself and not inside herself,” he said. The mother didn’t want to fail and didn’t explain the specifics of the situation she found herself in. He said the explanations she gave were about her and were not about the negative consequences for the children.
The judge asked if the mother showed any expression of remorse that the relationship with the second husband continued on and that having him in the home allowed the abuse continue. The psychologist said: “Remorse wasn’t really padded out by an explanation.”
The psychologist said he drew her attention to previous contact with the social work department and said there were an unusual number of contacts. She explained all eight contacts with the social work department and said that people didn’t like her.
The psychologist looked at child F’s injury. He said child F was admitted to hospital in 2013 and it did not seem to him that the mother could give a clear account of what had happened. He explained: “I work on the basis that we are all wrong but we become less wrong.” Staff at the hospital reported concerns about the mother and father’s presentations and the way in which the mother and the father were relating to each other. Child F was three months old at the time.
The mother noticed a bump and a soft spot on the child’s head. She showed the bump to the public health nurse and had an appointment with the GP. The mother thought the bump was a cancerous tumour and she brought child F to the hospital. The mother said “the walls came in on her” at this point. She spoke of child D and was trying to imagine he was holding child F and that child F rolled against the bed. The mother said she felt neither child C nor child E would have done anything intentionally to child F.
The mother said she had a fear the father would walk and if he thought she had done something [to the child] he would not have stayed. The psychologist said the mother was “presenting too well in psychological tests.” He said he did not find there was an intentional injury and he suggested to the mother there was a lack of supervision appropriate to child F’s age.
The psychologist asked the mother why she didn’t go to the GP when she first noticed the soft spot on child F’s head. She said: “I have a history of responding to urgency, and the public health nurse did not seem to have a sense of urgency.” The psychologist told the mother: “Many parents would override what the public health nurse would say and would go to a GP straight away themselves.” The mother explained she had a post-pregnancy fog in her head and the father was working late days but she had texted the father about child F. The mother said she liked text messaging and found it intimate and personal.
The psychologist said this action “reflected a lack of urgency on her behalf as a number of missed calls reflected urgency.” He said if a parent found an unusual bump, one would expect it to be explored. The mother introduced the idea that child’s chair fell.
Referring to the opinion of the mother of her children, he said it was reported that some of the children did not have underpants when they came into care. The mother said child D didn’t like underpants as he had Asperger’s syndrome. Child D had delay and toileting difficulties. Child E, who was two years old, was sleeping in the bed with child C and the psychologist raised an issue of the appropriateness of the sleeping arrangements.
It was noted that child C was angry about being taken away from home. Child C had a parental role and the social worker described him as an intelligent child. The mother thought child C also suffered from Asperger’s syndrome and she attributed his behaviour to this. The father attributed the behaviour of child C to the fact he lived in a rough estate. The father was of the belief that other children were calling child C gay but the mother disagreed with the father’s explanation.
The mother explained child C was impacted by the second husband leaving, changes to his placement and his eating habits. She said homeopathy had prevented child D from developing autism. The psychologist said child E expressed a wish to be home. The mother spoke of child E’s difficulties with the placement and said child E did not cry at home.
The mother described herself as “too honest” and said she was a “diehard optimist.” The psychologist acknowledged that the meeting was intense and the questions were often direct and blunt. He reiterated the need for the questions to be the way they were and the mother said she preferred things to be blunt. She said she never belittled her husband.
The psychologist expressed the opinion that these comments would be reflective of some degree of conflict. She said she unaware of this and she didn’t appear to accept any of the feedback during the assessment and was defensive. She demonstrated she was someone of above average intelligence. Her learning was limited in the light of her intelligence and she did not absorb the implications of her behaviour. She didn’t address the repeated presentations to the social work department, her statements reflected eccentric beliefs and they were not specific to the issues.
The mother said the “universe decided” and the psychologist concluded her methods of defining problems were vague. He said she externalised problems. She tended to take a strong defensive style when challenged about her behaviour, especially about her belittlement of the father.
The father had not challenged the contents of the report and he was described as a “workaholic who was ambitious, a bit eccentric, odd and peculiar.” The social workers reported that the father did not have the capacity to lie. The psychologist found the father unusual and initially considered he suffered from some degree of Asperger’s syndrome and autism but he discounted that hypothesis later when the father presented appropriately.
The father “cooperated significantly and he seemed to come across with different perspectives than the mother with regards some of the issues.” The father said he was exposed to harsh experiences as a child and had conflict with his mother. He had an affectionate relationship with his father but he said he didn’t feel safe as a child.
The father was still struggling with the circumstances of his brother’s death in 2005 and he was vigilant in relation to drugs due to the experience with his brother. He suffered depression when he was at school. The psychologist noted the father “could become preoccupied by his work, he was disengaged with the seriousness of the current circumstances and was not able to bring himself back.”
The father met the mother in 2009 and he described the relationship as loving. Children C and D did not like the father initially. The father said he was not present when the injury occurred to child F. He described the mother as getting pains at night and he would have to rub her back. The father thought the injury to child F happened during these attacks causing the mother to drop the child. He said: “She [the mother] didn’t say anything as … [she was concerned] the children could have been taken away.” The father said: “I was scared and I wasn’t angry …. I sensed it an accident and I didn’t argue.” He suspected something went wrong and he felt he had no control and he didn’t see it coming.
The father said it seemed it possible that child D could have dropped child F but he could not see child D fighting around child C or child F. He could not envisage child D deliberately harming a child but he thought child D could do it accidently. The psychologist said the father seemed more tuned in to the way he spoke about the children. The father said it would be easy for the mother to blame child D. He didn’t like that the social workers were questioning him about having caused the injury.
He felt sad his daughter was hurt but said it was not too serious. He expressed concerns about a court case that might happen. The psychologist said he was surprised the parents had not discussed the injury further and the father said that he liked to keep people happy. The psychologist asked if it were possible that child E knocked child F. The father rejected his notion as he said child E was very gentle.
He said the mother did not want to feel inadequate and “she needs to come out and be open and honest, to just come forward and say that she dropped the child.” The father believed the mother had caused the injury to child F. The father explained the mother might have dropped child F due to her physical ailment. He thought she would keep this from social workers as they would think she was not a fit mother.
The psychologist said he did not form the impression that the father was colluding and there was a clear difference between the theories the parents put forward. He seemed in tune with his children emotionally but the psychologist was concerned that the father did not challenge child F’s injury more. He said the father gave a lot of respect to his wife and it was surprising he wasn’t pressing the issue. The psychologist had the impression the parents were not discussing that incident and there was a lack of communication.
The father said he would miss the children but they would be happier in care. The psychologist reported the mother became angry as the father did not support her and her belief in homeopathy. To him the father seemed unusually passive. The psychologist did not complete his evidence.
An attachment expert told the court the bulk of her recommendations related to care-giving of child E. She highlighted the importance of a secure base to develop a secure attachment and she outlined ways that could be achieved in relation to the foster carers. She said child E was two years old in December 2013 when he was admitted into care and his primary attachments were to his mother and father. The patterns of attachments were well established, both secure and insecure attachments, when she came into the case.
She conducted the assessment and noted child E’s pattern of attachment was insecure but was getting better. When he came into care, it was clear he operated on two insecure patterns, he was highly avoidant, angry and aggressive. She said he unable to use the secure base and he would self-soothe. He would kick, spit and bite in times of stress. He was overwhelmed and internalised on one level and angry and aggressive on another level. She said child E was “very dis-regulated, alone in terms of his emotional well-being and didn’t know how to use a care-giver to have his needs met.”
Support services came in to manage the behaviour and give foster carers insight in to how he behaved. The attachment expert said child E “hadn’t received a predictable approach, he was so disorganised, and was not able to be integrated.” She said she met with foster carers and they told her what child E was like previously and now. Secure behaviours started to increase and this gave her a sense of how this child was and how he was managing. She said “healing is within the context of the care-giving relationship.” It was essential for child E to continue to experience rich care-giving, if he were to continue to meet developmental milestones.
She said the foster carers were made aware of the importance of the home-based attachment programme. In her view the foster carers now had a better understanding of child E’s pattern. She said: “The emphasis for me was to help and support the foster carers to develop insight and have reflective functioning into child E’s behaviour and how to respond to it.”
She said at times of stress the child would hide under furniture and seek containment in small places. She encouraged the foster carers to stay near him and be there when he was ready to come out rather than putting limits and boundaries. She explained bedtimes should be an opportunity for care-giving and often child E would wake during the night and did not seek out his care-givers.
Child E needed constant encouragement to use the secure base [of his foster placement] as he did not use it in the early days and it was important for him to start using it. She told the foster carers they must encourage child E, stroke his hair and have good contact. She said: “That’s a normal thing between parents and children and he [child E] had no connection to that.” Child E was five at the time of the report but developmentally he was much younger. She encouraged developmentally age-appropriate games for the child.
The expert said child E had huge difficulties with turn-taking. In the early days he had difficulties with his foster mother and he orientated his attachment towards his foster father. She concluded: “It is essential a decision is made in relation to child E’s long term care as living in a state of limbo is having an effect on his psychological welfare.” She said he was internalising and “no one could come to him and say where your future is, children need to know these things, have stability and count on their primary carers, [child E] needs to know where he will be and who takes care of him.”
She noted the contact arrangement with his parents caused a high level of dis-regulation and threatened the viability of the placement. Child E had been distressed following contact and there had been a significant regression in his emotional welfare. His foster carers did not know if they could contain this. Child E “was angry, withdrawn, lashing out and regressed to a state he had been in when he came into care.”
The foster carers did not know what happened at the contact but child E was so distressed that they felt helpless He had been bed-wetting, kicking and biting. She asked the foster carers to map his behaviour retrospectively and use a template during contact to see the areas of difficulty and know how to intervene.
There had been a hiatus of contact when the expert had started the assessment. She said child E appeared much better regulated on the visit she observed as there had been time in the interim and that helped him regain stability. She recommended that contact visits should be highly structured with activities that offered child E positive feedback which allowed him exploration and independence.
She said child E “needs clear information on what to expect during contact visits and it would be beneficial for [child E] if his foster carers would attend the contact visit with him.” The stress of being moved into [a different] environment was stressful, along with not understanding why this happening.
She said children are inclined to settle well if the care-giving is meeting their needs. Younger children are more flexible due to their development and patterns are more quickly established. She explained “security of attachment is one aspect of development but other factors play into it, like temperament and the circumstances of the child, genetic make-up of the child. If parenting is good enough in the early day of life, the child will internalise a sense of self which is secure or insecure. The behaviours indicate this child was very disturbed.”
She said: “Early trauma and neglect were chronic as child E was described as a feral child with no idea of time-lines, he had no sense of hungry, full, hurt, he didn’t cry when he fell and this set off alarm bells [about] the sense of security, this is a high level of dis-regulation.”
She said child E was “a child with special needs from a developmental perspective. Parents need to see the world from the child’s perspective and how he feels and how things impact on him. That requires insight and parents need a certain level of reflective functioning and I don’t know where that sits at the moment with work that has been done with the birth parents. I’m not au fait with that.”
The social worker said she had contact with the family and worked with other members of the social work team. She said the purpose of her report was to update the court as to the involvement of the CFA from June 2017 to now [October]. She met with the children during the summer. They were on school holidays and all in good physical health. She visited the children in their placements.
She said child C was due to sit the Junior Certificate and the school principal said he had good academic potential. He had had a difficult time at school due to the disruption in his care placement. He moved in March and the behavioural difficulties arose in May. He was removed from class following an incident of disruptive behaviour. She said child C had been finding it difficult to adjust to his current placement and he wished to return to his previous placement. She said the social work department was awaiting a report about child A and responding to allegations of abuse and neglect. She said: “This is affecting child C [along with] the decision making about his previous placement and the risk that was in it.”
Child D started first year in secondary school and he was getting on well and making friends. He had a support teacher and attended speech and language therapy. She said his receptive language skills were delayed and his expressive language skills were severely delayed. Child D had a warm positive relationship with his foster carers. He did not attend weekly access but did attend family access in summer and enjoyed it.
Child E was described as doing well and receiving supports for his emotional and behavioural difficulties. He attended speech and language therapy as he had mild delays with language structure. He was being assessed by a mental health team and a Coventry grid assessment was to be completed. She said child E had access every six weeks with the mother and father separately. She noted the father participated in just three accesses to date due to difficulty with his work.
Access was later changed to accommodate the father and he attended on the last two occasions. Child E attended family access with all four children and the mother. She said child E went to family access in July and managed but upon his return to the foster carers he showed signs of regression in his behaviour. Child E did not attend the subsequent family access in August as he did not want to. Child E had problems with food during an access and asked who was going to keep him safe.
Child F started school and settled in well. She was described as happy and chatty. Child F was assessed in September 2017 and had made good progress. Her speech was reported to be normal but she was due to attend a block of speech therapy sessions. Child F saw the mother every week and the father every six weeks. Child F saw child E every two weeks. Child F saw the father with child E on three occasions.
The social worker said there were core group meetings and discussions about the plan with access going forward. Child C wanted to go to the group core meetings and speak with the social worker. She said he attended with his GAL and said he was dissatisfied and wanted a decision about his placement. She concluded that the children were in care since 2013 and they all required a decision in order for them to feel secure. She said a “return to the parents would negatively impact on their health and development.”
The hearing was adjourned.
When it resumed a month later the social worker continued her evidence.
She said a meeting was held with the mother and child C. There was a discussion between the mother and child C’s former foster carers about child C having unsupervised access [with the foster carers and their family] in the foster carers’ house and the mother did not think it was appropriate. The social worker said child C wanted to go to the former foster carers’ house. The social worker did not relay to child C that it was his mother saying no.
Counsel for the mother asked: “At the meeting [five months ago] you contacted the mother and said you spoke to child C and told child C that the mother would not allow him to meet with the former foster carers unsupervised?”
She replied: “That was not my recollection of it, child C was frustrated and he knew people were working to resolve this.” The social worker said there was no contact at the former foster carers’ home but they could come and take child C out. Child C had supervised access in the former foster carers’ home but he wanted to keep a relationship with the former carers without a support worker.
Counsel for the mother asked: “Child C was asking for access with his previous foster carers and you were aware of the allegations?” She replied: “I was aware of some of it.” She added that child C had a melt-down at a meeting.
The social worker was aware of the texts between the former foster mother and child C which were inappropriate. She said these conversations occurred during a difficult and emotional time and there were no meetings about the conversations.
Counsel for the mother: “You are an experienced social worker and it is not the first time you have dealt with child sex abuse, generally it is often the case or sometimes the case that parents struggle to believe allegations at first?” The social worker agreed and said: “That can be the case.”
Counsel for the mother: “Social workers don’t require them [parents] to believe but act as though they believe. You want parents to take action on foot of an allegation?” She replied: “Yes, appropriate, protective action and doing things to physically protect children.”
Counsel: “The first step would be to remove yourself and the child from the perpetrator, or get rid of perpetrator?” The social worker agreed.
The mother split from the third husband in March 2016 and during that time there was an on-going assessment with a psychologist. Counsel for the mother said: “The social worker gave evidence in January 2016 and said she felt child D was a child who had more to say.
The mother said she left her husband and it was good for the case.” The social worker said at the meeting in April 2016 she did not talk to the mother in relation to that comment.
The social worker explained that both child C and D contacted their older siblings whenever they wanted and this was encouraged by the mother and foster carers. She said family access took place in July 2017 and it was the first family access in three years. Following the access child E was reported to be dis-regulated and his sleep was disturbed. She said access again took place in October and child E was reported to be happy following parental and sibling access. There was positive feedback following the access with the mother.
Calling the foster carers
The judge asked the parties to address the issue of witness summons requiring the foster carers to give evidence. He made reference to the decision of Eastern Health Board v. Mooney which deals with the court issuing witness summons for foster carers to give evidence.
Counsel for the Child and Family Agency said the Mooney decision referenced RE K. Counsel said foster carers are compellable witnesses and available to court to be examined. He said the judge can call them to give evidence but he did not have the rationale of the Mooney case. He said: “The phrase ‘in all circumstances’ must be evaluated and if the court were to subpoena witnesses it might spark its own inquiry.” He added: “This is not the time to call the foster carers. The foster link worker and social worker gave some evidence but they have not completed their evidence. The position is unclear as to their involvement and the Child and Family Agency should make a call to see if the foster carers are to be called as witnesses and what is in the evidence. There is already video evidence viewed and that evidence was already available.”
He said the process of issuing a subpoena to require the foster carers to come to court was premature at the minute and the Child and Family Agency must be given the latitude to proceed prior to the conclusion of the case. He said: “We have two witnesses who link on with the evidence of the foster carers and that information and the disclosures have been available to the court.”
He added: “A more practical issue arises as to why the foster carers are to be called. If the witnesses are called, how is it proposed to limit the contribution of the witnesses including how the foster carers got into the business and their general training? A foster carer is not a person with specific training and to what extent is it in the welfare of the children for foster carers, who provide a safe haven, to be held to account for their interaction with the children? How is it to be limited in any respect as to how it might be dealt with?
“I don’t know what the predicament of the person in a witness box will be. These issues have a general application and I see a practical difficulty doing this [calling foster carers]. The foster carers are not people used to being in court and are not in line with a battery of people asking them questions. The Agency has a great concern where there is more than one child in the placement as to how long the process will take. No one can say how long the foster carers will be required to be before the court. Given the position of the foster carers and the link of the section of evidence, appropriate time should be given to allow that to play out. It may be that the situation with the other two witnesses will change positively or negatively, at this point no decision could or should be taken at this time.
“News that the foster carers would have to come to court and be cross-examined by a lawyer would become known in the fostering community. There would be a risk to the current foster placement in circumstances when it not necessary at all. This would cause a ripple effect in the fostering community that the next person who takes over the placement will end up in court too. This could lead to the breakdown of the foster placement.
“The welfare of children is paramount and to embark upon the process would open a Pandora’s box which would have a catastrophic effect on the children. If the court should call the foster carers, this should be a measure of last resort. The phrase ‘in all the circumstances’ means one must take a broad decision on it and must wait until very late in the case before that decision is made.
“The matter may be addressed in February to see where we are with regards to the other witnesses. Foster carers who might be called might be asked a lot of information and the foster carers do not have access to that documentation as other expert witnesses do.” He said the wellbeing of the foster carers was connected to the wellbeing of the children.
He added: “We have three children in the same placement and the court must see what happens if this goes wrong. It is premature to consider that is necessary now and this is not the time to make such order. It is better to wait and see the position of the two witnesses who are yet to complete their evidence. We need space to breathe.”
The judge asked: “What is the time frame, when the Agency has concluded its case or at the entire conclusion of the entire case?”
Counsel for the Child and Family Agency said: “At conclusion of the Agency’s case and the Agency can then inform the court. After the Agency finishes its case, we always want to reserve our position to protect the welfare of the children. The Agency must be in a position to make a call, we will have to be in position to say yes or no.”
Counsel for the GAL said: “Essentially she [the GAL] starts from position that the court ought to have the fullness of information. In this case if the foster carers were to be called, the GAL has concerns of the impact on the care-giving from the perspective of children. To pitch the foster carers into court would have a negative effect on the relationships between the children and foster carers if their evidence were challenged. If the foster carers were to give evidence that could have a negative effect on the care they provide to the children. That is the priority of the GAL.”
Counsel for the father stated that he was neutral.
Counsel for the mother submitted the Mooney decision says the court can and should call foster carers. She said the court can call the foster carers but it was a pity there was a lack of discourse in that case.
She said the court should not make a decision now and she agreed with counsel for the Child and Family Agency. Counsel said: “It is a matter for each party to call witnesses but there was an exception in child care cases and that is the Mooney case. Each party is at liberty to call whatever witnesses they want. That list of witnesses can be added to and reduced. The Agency is at liberty to make a decision to call whichever witnesses it may. The court is not at liberty to make a decision until the Agency makes a decision regarding the witnesses. All along the Agency has said it is not calling these witnesses, the position has shifted as we haven’t made a decision about it. We must get to a trigger point before the decision is made.
She added: “It seems that the District Court has to engage in a balancing exercise and take into account all the views and wishes of children. I am neutral as to whether the court wishes to call foster carers but I want to highlight the issues the court should look at in exercising discretion. This case started in January 2016, the case stopped as the social worker said the children presented in care in a certain way. During the social worker’s evidence, she went through what the foster carers said linking those presentations to the mother and father’s parenting and behaviours.
“If we call the foster carers, we have an idea what they say, if they give evidence about presentation, where does that get us? We are in the same position as we were when the case started. The foster carers are just normal people. This case started two years ago, we have two weeks in February and we looking at four weeks to finish the evidence. There are two witnesses for the mother, the GAL and the Agency’s witnesses.”
She said: “Without doubt, I have never seen notes like those of the foster link worker and if the court calls the foster carers I would need discovery of the foster link worker’s notes so I would be fully informed. I would ask for the foster carer’s diary. There are 15 references to the social workers talking to foster carers and asking them to put information in the diary.”
She said: “I don’t agree that the foster carers inhabit a special role in society as ordinary people give evidence in court, people who never thought they would be in a witness box give evidence. I agree with the impact of foster carers giving evidence. The mother loves the children and the foster carers have grown to love the children. There is a difficult position with regards to the foster carers giving evidence and they effectively fighting over the evidence.
“One [foster carer] said: ‘I’d die if they took child D away.’ We would inject a whole level of emotion into this case. There are three sets of foster carers and if all three sets come, you can tack another two to three weeks onto the case. The court has the interview of child D so why bring a foster carer to court to review the evidence? Child F is in junior infants, child C has just done Junior Certificate and any more delay cannot be good for the parties.”
The judge said: “These proceedings are in the nature of an inquiry into the welfare of the children and the court’s decision must be based on facts and whether they are proved or otherwise. If I were to posit a question, the evidence of the presentation of children when they came into care given in information from the foster carers, the parents may accept that evidence given by the social worker or wish to challenge it. The rules of justice afford someone against whom allegations have been made the entitlement to cross-examine. The foster link worker’s evidence is limited to a period of time in relation to when the children came into care.
“In respect of the allegation made by the child, I have a section 16 video which is the best evidence. While I want to conclude a case in the interests of the children, the court must hear the matter and balance the constitutional rights of everyone. I raised this as I don’t want the matter dragging on. I concede the point the court should have the totality of the evidence and I defer the decision that foster carers be called. I know the standard is high. We are where we are.
“The parents say no, they don’t need to hear evidence of the foster carers regarding the presentation of the children when they came into care, access and the allegations of which there are three examples. The father is not involving [himself] nor attending and allegations have been made against him by child D. Child D will not be called, we have section 16 video and I must decide what weight to give to the evidence and the bearing it has.
“This case started out and is proceeding as to who gives evidence as to the presentation of the children. Where there is a delay, the children are getting older and making disclosures. Things arise and people need to be recalled. Is there a point where the court says, is it a dispute and does the parent want to cross-examine or feel it necessary to call a witness? At what point does the court think it is appropriate to call the foster carers, at the completion of Agency’s case or completion at the case?
“Until the court delivers its final decision, the case is not finished and if the court feels it necessary it can hear some more evidence. With regard to the children’s presentation, who can give evidence to say what this is resultant of? I don’t believe all foster carers need to be called. I must proceed on proven facts and the decision of Bedford Borough Council  IEHC 583 highlights specific issues which do arise in the case.
“It seems to me any determination about further evidence should await the conclusion of the case, and then I can consider if it is necessary or not necessary to call further witnesses. I defer the decision to February. Then if all witnesses are heard and the court then believe it necessary in part of its inquiry whether persons should be called or recalled.”
Counsel for the Child and Family Agency said there was an investigative report concerning child D and child A and it required redaction regarding a third party. The third husband was not the biological father of child D and it was appropriate to have access to the report. Counsel made an application pursuant to section 47 for liberty to release the report which included information about child A made by child D which led to child D being moved from his placement. Counsel said: “In terms of completeness, it can be argued it [the report] has nothing to do with the case, it has to do with child A.”
The judge said the report might be relevant to the section 18 application. He made an order releasing the report to the legal representatives of all parties and the experts.
The case was adjourned until February 2018.