A Supervision Order was granted by a court in a rural town for a young child in place of a Care Order originally sought by the Child and Family Agency, which had also supported a custody application from the child’s father. The court granted care and control of the child to the father, with joint legal custody between the parents.
When the case opened the solicitor for the CFA told the court that there were three applications before the court: to extend an existing Interim Care Order, for a full Care
Order, and an application for custody from the father.
An Emergency Care Order had been granted in October 2015 when the child was residing with the mother. There was no application from the father for custody at that stage. The CFA placed the child with the father and the father’s fiancée. Interim Care Orders were granted and extended. Then the father lodged an application for custody.
The father’s solicitor said that he was seeking custody of the child in place of a Care Order. He felt the child was best in his care. He would consent to a Supervision Order.
The CFA solicitor said that she believed when the court heard the case it would agree that the threshold for a Care Order against the mother had been met. If that was the case then the CFA would be happy with a Supervision Order (if the child was placed in the care of the father).
“Unless both parents are unable to care for the child a Care Order cannot be made,” the judge said. “It goes back into the private family law area in relation to who has custody.”
CFA solicitor: “The issue for the CFA is that there was an Emergency Care Order. If the CFA succeeds the child will return to the father.”
Judge: “A lot of cases hover in that area. There is no reason why we can’t find a solution for everyone today, if everyone is realistic about their capabilities. Frequently parents who have difficulties combine against the common enemy – not that you are anyone’s enemy. But they might work out between them a solution for child which keeps the child with them. Also it would give whatever parent has the child the support and help they might not otherwise get.”
The father’s solicitor said she thought it was important the court heard evidence relating to the Emergency Care Order. It was why her client agreed to a Supervision Order, and thought that evidence should be before the court.
The mother’s barrister said that there was an evidence problem. The public law case should be first. There were different standards of proof. There were reports relating to the public law case that would not be appropriate in a custody case.
“If the child is taken into care then I [on behalf of the mother] have no further involvement. If not, then it is a private law matter between the mother and father. We wrote to the CFA last October and outlined what we thought would be a good solution, a shared arrangement.”
Judge: “I don’t think this hinders me in any way from deciding on what is best for the child.”
Mother’s barrister: “There are rules of evidence and those rules do apply.”
CFA solicitor: “As part of the care proceedings we have carried out various assessments. With the CFA you are in or you are out. A Supervision Order does not allow us to direct parents to do anything. Under Section 3 of the Child Care Act we have a responsibility to look after a child at risk. We have care proceedings. We have taken the unusual step of placing the child with the natural father.”
Judge: “We could deal with the Care Order simpliciter. The other way of dealing with it is by way of discussion. But if there is no agreement we will have to go ahead with the Care Order application. In relation to custody, it does not really mean what it says. I often give custody with care and control to one particular parent. It’s not always necessary to give full custody to one or other parent. Often there is joint custody, which allows for things to change. What is the attitude of the father’s solicitor to the Care Order application?”
Father’s solicitor: “He wants the child to stay with him. In relation to the evidence – the welfare of the child must be the first and paramount consideration. So should you keep evidence out of the custody application?”
Judge: “It seems we will have to proceed to the Care Order application without any reference to any other application. What are the witnesses?
“In relation to the evidence – if the position of the CFA is that the father is capable of looking after the child your case goes out the window.”
CFA solicitor: “The CFA have carried out a parenting capacity assessment on the father and have no doubt of his capacity to parent. But if the Care Order is not heard, then the custody of the child returns to the mother in the intervening period. Maybe there is a case that the custody case needs to be heard. The difficulty is that the case is set up with all the witnesses ready for the Care Order to be heard.”
Mother’s barrister: “The CFA have to prove their case and we don’t think they have.”
Judge: “The bar is higher for a Care Order than an Interim Care Order. Sometimes you have fathers who are not on board and then they come on board and the situation changes. Is the mother the sole guardian of the child?”
Father’s solicitor: “No, the father is the joint guardian.”
Judge: “Has there been any adjudication on custody?”
Solicitor: “No.”
Judge: “I want the parties to talk. The CFA are neutral. They should tell everyone what evidence they have. The parties should see how the CFA views their capacities and also be aware that the courts tend to accept expert evidence in general.
“No-one likes to face up to certain things about themselves. The law says that children should remain with their parents and if they leave their parents they should return as soon as possible. It prefers that children should never leave their parents.”
The case was adjourned for discussions, and after three hours the mother’s barrister said that the matter had been compromised.
The CFA solicitor said that the CFA would be seeking a Supervision Order for 12 months.
The mother’s barrister said that joint custody was agreed, with the child remaining with the father and support from social workers. Access, supervised by a social worker, would be agreed between the parties. The parties agreed to work towards the normalisation of family relations. The father’s solicitor stated that this was accepted by her client.
The CFA solicitor said that in the light of this agreement the CFA was withdrawing its application for a Care Order and seeking a Supervision Order, which was on consent.
Judge: “This is a good order. It recognises the mother’s inability to cope from time to time. Hopefully things will change, it is a work in progress. I have read the very comprehensive social work report. The child has certain needs which will have to be addressed in the future. I want to make sure that now this is back in the private family law area things are not neglected. I want to make sure the needs of the child will continue to be met.”
He ruled that the parents had joint custody of the child, with care and control to the father and access as agreed. He made a Supervision Order for 12 months, adding that social workers were to meet the respondents every month to advise and support on access. The applications for an extension of the Interim Care Order and for a Care Order were withdrawn. He made an interim order for access, to be revisited in three months.
The CFA solicitor said that the Supervision Order would provide support and advice to the parents on the needs of the child. The CFA had a very good working relationship with the father, who had done everything he was asked.
The judge said that the mother had recognised she couldn’t cope, and had done the right thing. “It is important for people to relax and make everything work. Coming to court makes people anxious.”
