During the Minors’ Review List in November 2017 a judge was informed that no aftercare plan had as yet been formulated for a young woman with mental health needs who would turn 18 within two months. The girl (A) had been in care since infancy and required on-going supports in terms of accommodation, health and well-being, personal and social development, education and family support.
New aftercare legislation, the Child Care (Amendment) Act 2015 came into force on 1st September 2017 in the Irish State creating a positive legal obligation on the Child and Family Agency to prepare, review and update aftercare plans for children in care.
Background to the case:
The girl had been a resident in a medium secure psychiatric hospital in the UK for a number of months, her case had been described in the High Court as a “serious mental health case”. In the summer of 2017 her treating doctors in the hospital had drawn up a template of what would be required for the teenager on her return to Ireland. Senior counsel for the CFA described the template as a “complex mental health arrangement under the supervision of a mental health psychiatrist,” who said there was “no reality to the teenager returning to foster care” [where she had been since infancy], there was “a risk to life and she required a bespoke package in a highly structured mental health residential centre”.
The hospital in the UK had crystalised a risk regarding her transferral back to Ireland and said a sensitive discharge was required with safeguards to be put in place. “The key here is to get a clinical pathway lined up carefully,” said senior counsel for the CFA, “and an education curriculum for the right exams.”
Two weeks later the court heard during the Minors’ Review List that although A was considered ready for discharge by the UK unit, no onward placement had been identified in Ireland. Counsel for the guardian ad litem (GAL) told the court that he was seeking to list the matter for hearing at the first opportunity in the next term [after the summer recess] in order to have an onward placement identified.
That morning counsel for the HSE informed the court that an appropriate CAMHS unit had been identified for when A did return that would offer a full Multi-Disciplinary Therapeutic Team Support (MDTTS).
The teenager did return to Ireland during the summer recess to a medium term residential placement. In early October when the Minors’ List recommenced no aftercare plan had been formulated by the CFA and A would turn 18 within three months.
Counsel for the GAL told the court that the guardian had been told that an appropriate placement had been found and that private provision had been made for a private placement, however they wanted “some form of a plan in four weeks” from the CFA.
Senior counsel for the foster parents remarked that the case was turning to aftercare, that there had been a change in the law and it was “now a statutory duty to do an assessment of need, it should have been done on the 1st of September under Section 45.”
The child’s mother shared the same concerns regarding the aftercare plan and the lack thereof, her barrister told the court.
(The Child Care (Amendment) Act 2015 (Commencement) Order 2017 was published on the 13th July 2017. This Order provides for the commencement of Sections 2, 3, 5, 6, 7, 8, 9 and 16 of the Child Care (Amendment) Act 2015 with effect from 1st September 2017. These sections amend Section 45 of the Child Care Act 1991 which deals with aftercare, and put on a legislative basis a number of the aftercare provisions of Tusla’s (The Child and Family Agency) Aftercare Policy. The changes will affect children in care, those who care for them and, primarily the Child and Family Agency.
This legislation creates a positive legal obligation on the Agency to prepare, review and update plans where necessary. Aftercare plans are prepared subject to the Agency’s resources and that the Agency must have due regard for its resources when preparing a plan.
Section 6 of the 2015 Act requires the Child and Family Agency to carry out an assessment of need before an Aftercare plan is prepared. This assessment must be done in writing. The needs assessment must cover the education, financing and budgeting, training and employment, health and well-being, personal and social development, accommodation and family support of the person to whom the Aftercare plan pertains.)
November – The Minors’ Review List
When the case returned to the list four weeks’ later no aftercare plan had been formulated.
The teenager who would turn 18 in just over one month had been diagnosed with an Axis One emerging emotional unstable personality disorder and reactive emotional disorder of childhood. There were potential triggers for decline in mental health and she was continuing to receive psychiatric treatment.
“Aftercare is now the focus,” senior counsel for the CFA told the court. “The emphasis is now on [residential] aftercare, there are very good reasons why that hasn’t been formulated to date because [she was] focussed on going home.”
Senior counsel for the foster parents told the court that in the end it was the foster parents who had to make the hard decisions, that it was an extra hard situation for everyone involved. The foster parents had informed the CFA that they would be unable to provide accommodation once the teenager aged out. “There is a clear statutory plan of what has to be done now in terms of what has to be put in place,” counsel for the foster parents said.
The teenager’s progress had begun to deteriorate slightly therefore the new plan had to have regard to all of that. However he told the court that the idea from the social work department had been to “phase down” her level of current supports. “It is hard to believe it can be phased down given the situation,” he said.
“There is no doubt that what is likely in the short term is that things are likely to get worse rather than get better,” said the judge. The matter was adjourned for four weeks with the “hope that the bigger issues would be addressed”.
When the case returned to the Minors’ Review List four weeks later and no aftercare plan had been produced the judge gave a direction to the CFA to put in play their statutory function and produce the plan within two weeks, noting that clinical progress was very dependent on aftercare being put in place, therefore aftercare was “imperative”.
Two weeks’ later a draft aftercare plan had been forwarded to the lawyers for the GAL, mother and foster parents. The barrister for the GAL stressed that it was marked as a draft, it had been a document that had been previously generated that had never been circulated to anyone or finalised. “It’s the first I’ve ever seen of it and the GAL is also saying that. It seems odd to me that a draft is done to that level and is never finalised at that stage and some of the things meant to be done have already gone by. Aftercare plans are meant to be generated sufficiently in advance so to see what is meant to be done, we were at that point in September.
“It is a mistake to lose sight of where we are, she will be 18 in January, she is threatening to kill herself, as we speak none of us have any idea where she is going to, sometimes people can be destabilised by what they’re not told and the information they don’t have.”
Counsel for the CFA accepted that the document was not fit for purpose and it had to be advanced before the court the following week. He noted that counsel for the HSE had informed the court that they “were ready and willing to embark on whatever is necessary but they are effectively stymied because there is no care plan and [A] is missing out on that, there has to be a plan, clearly she needs a plan.”
The judge told the parties that the CFA had to “put in play their statutory function, the child has expressed her views on aftercare so it has to be very sensitively and professionally handled, clinical progress is very much dependent on aftercare being put in place, it is imperative.”
The following week the court heard the girl’s views which were listed in the GAL report, these included that she wished to die rather than go to her aftercare placement and that she wished to spend Christmas with her foster family. She had self-harmed on one occasion since the last court date and the concern was that she may accidently cause herself a fatal injury.
The barrister for the GAL stated it was imperative that a placement was urgently identified so that the adult treating team could commence clinical input. Furthermore she was not engaging in education which would have a future impact on resources and supports available to her post 18.
The most up to date information from the CFA was that the National Placement Team in Dublin was considering A for placement within a semi-independent unit with other young people.
Two weeks later the court heard that a new aftercare provider was meeting with the CFA the next day and there was a possibility of a placement there. It was a unit that could meet the needs of complex and sensitive cases.
Counsel for the foster parents noted that two weeks’ ago the court had granted a direction that an aftercare plan be provided by the previous day and the draft aftercare plan the parties had been provided with last week was no further on. “There is nowhere for her, she is ageing out, it has got to be sorted. The risks to her get bigger and bigger the closer we get and she has nowhere to go, it is an extremely serious case, in five weeks we literally have nowhere for her,” he told the court.
The barrister for the GAL told the court that there had been a report from a consultant psychiatrist two weeks’ ago which had noted that planning in terms of A’s therapeutic needs could not take place until the placement was identified.
“An aftercare plan to some extent is meaningless without accommodation, the main issue is accommodation and the aftercare plan should be worked around that,” stated the judge. “There is a meeting tomorrow and heads really need to be banged together.” She requested an update after the meeting.
The following week the court heard that the social work department were still waiting to hear from the new aftercare provider as to a placement offer. However the Children’s Resource Panel had recommended a second unit be assessed for the teenager. Furthermore, A was to undergo an independent psychiatric assessment the following day which would have regard to capacity. Counsel for the foster parents told the court that this assessment would enable a view to be formed about what steps needed to be taken with regard to possible wardship.
A solicitor for the HSE informed the court that an adult psychiatrist from the HSE would also be assessing A and that she was already in attendance at his clinic in relation to her medication.
The judge made an order that any information would be shared amongst all the relevant parties that became available in respect of the second unit or any other unit over the Christmas period.
When the Minors’ Review List resumed hearing in the New Year counsel for the CFA told the court that four new statutory instruments in relation to special care had come into effect. He said while this did not change the need to resort to the inherent jurisdiction of the High Court it put into statutory form matters which had been dealt with on an administrative basis and the move into a statutory framework regulated specifically the area of secure care.
In relation to the child in this case a placement had been identified the night before, the CFA had informed the other parties that morning and there was a psychiatric report before the court with sensitive insights into A’s state of mind which were clearly relevant.
Counsel for the foster parents told the court that a whole series of supports around this placement would be very important and they needed to see how it tied in with the recommendations of the UK unit that had been deemed necessary to support A. Counsel remarked: “It is yet another example of a lamentable situation…she was detained and now she has to go somewhere else, you see the end of the road and an inevitable car crash coming and at the last moment we swerve to avoid it.”
The court told the parties: “I see no pleasure in putting pressure week in and week out on the CFA, this is not the role of the court. It is effectively Groundhog Day in here every week in relation to these placements, at some stage it is going to take an incident of the serious nature envisaged as the degree of frustration escalates. This case is another case which clearly could have devastating effects, it is nearly the eve of her 18th birthday.”
“It is inevitable in some case there will be a car crash,” replied counsel for the foster parents.
“What I want to avoid and in the new placements that are being put in place as well is that there is no point in putting them in secure care if there is nowhere for them to go afterwards. It is all tied in with the legality of it.”
“I’m very aware of that,” said the judge.
When the case returned the following week to the Minors’ List there were four days until A’s 18th birthday.
“The first thing I need,” said counsel for the CFA, “I need her to have her feet under the table in her aftercare placement on Monday and for the case to remain under review for a brief period of time and there is the jurisdiction to do so.” He had not had the arrangements put in place as early as he had wished but he did not want the case to go under judicial review due to the amendment of Section 45 of the Child Care Act 1991 which would give rise to two sets of court proceedings.
An important psychiatric report accompanied the social work and GAL reports. There had been a key clinical decision to wean A off her psychiatric medication and this had been considered appropriate by the treating psychiatrist in the UK hospital.
The court heard of an issue regarding the impending lengthy daily commute to and from her planned placement to her educational placement involving two long bus journeys which was not appropriate for a girl with vulnerabilities.
The judge remarked that it was not sustainable.
“We need a practical arrangement to get her from where she is to where she will be carrying out her educational placement and get her back from there. Relatively speaking it is a small amount of money and it has to be reviewed. There have been lots of psychiatric reports recently and she is particularly vulnerable in a change of circumstances. There is likely to be bumps in the road and it is quite unreal and dangerous for the court to bow out at this stage,” said counsel for the foster parents.
“You’re pushing an open door,” replied the judge. “Deadlines are looming and I am asking for updates but I see the barrister has left the court. The lack of planning continues, substantial resources are invested into giving the children the appropriate care they need in secure care and the potential is nearly ripped out from under their feet at the lack of onward placement and the level of uncertainty is causing undue stress to these children.
“I need to know that in light of the fact that a number of secure care placements have come on stream that adequate planning has been done because effectively they have no onward placement when their time there is completed. We have children remaining in secure care when there is no on-going placement for them and it is not their role when they have done their part and then the CFA have failed to produce the goods at their side.
“It is an issue that arises every week in this court particularly in light of new secure care placements available and a lack of planning at the other end of it. Matters are to be dealt with on affidavit as to what is being done with the onward placement. In fact the problem is even greater than before due to the new secure placements,” said the judge.
“And the court is aware that a condition of a secure care placement is an onward placement,” replied counsel for the CFA.
“I may be put in a position where I have to refuse an application,” remarked the judge emphatically, “I clearly intend to keep [A’s] case under review. I want the matter of the transport addressed as a matter of urgency in one week.”
“Little things can become important now that can make the situation even worse,” said counsel for the foster parents.
When the case came before the court again in late January the CFA counsel told the court that a taxi would be provided to take the girl to her educational centre as necessary.