A judge in a rural town granted a supervision order and gave directions concerning the education of a child with special needs and said the court would case manage this matter to ensure the directions in the supervision order were complied with. The child’s mother opposed the supervision order.
The court granted the order for the primary school aged boy who had significant needs and who had never attended school. He had been diagnosed with autism and had a moderate to severe learning disability.
The matter had been before the courts on several occasions. The mother attended court remotely and was represented by a solicitor, the Child and Family Agency (CFA) were represented by a solicitor and barrister. No guardian ad litem (GAL) had been appointed.
The mother’s solicitor made a preliminary application prior to the hearing of the matter on the grounds that the social worker who had sworn the social work report was not in court as she was unwell, and this made the hearing unfair. This was opposed by the CFA because the report had been co-authored by the team leader, who had also been the boy’s social worker, and the team leader was in court to give the evidence.
The judge denied the mother’s application and said that these were child care proceedings and not criminal proceedings. The nature of child care orders trespass and interfere in the rights of children and families therefore all orders were made on oral evidence heard in court. The judge said that it was essential the court heard any evidence in person before any order was made.
Evidence was heard from an Applied Behaviour Analysis (ABA) specialist, the education welfare officer, and the social work team leader.
The CFA barrister told the court there had been a first supervision order in 2019 and a second in 2021. The second supervision order had been subject to a written decision by another District Court judge. There had also been an order of the Circuit Court in 2021 under the Education and Welfare Act 2000.
He said the previous orders had included directions that the boy was to attend assessments and to secure a school placement to attend school. The reason for this application was that the directions of the previous orders had not been complied with as the child still had no school placement and now would be unlikely to secure a placement until September 2023.
Evidence of the Applied Behaviour Analysis (ABA) therapy specialist
The specialist gave evidence of her qualifications which included undergraduate and post-graduate degrees. She was a practitioner and also taught behaviour analysis in a university.
She said there was a common misunderstanding that ABA was just for those children who have autistic features, but ABA was for everyone. ABA was therapy based on the science of learning and behaviour. It presupposed that each behaviour has a reason. The behaviour was analysed for the reason and once the reason for the behaviour was understood, a therapy would be initiated to try to address the behaviour.
She gave an example where someone had difficulty using transport. She would analyse the person’s behaviour, break the behaviours down and then try to pinpoint the exact obstacle and initiate therapies to address that. It had been used successfully in adults and children with developmental disorders since the 1960s.
She had worked with the boy and described him as “an adorable, cheeky chap”. He was charming, smiley and a fabulous child. His mother was devoted to him and deserved a medal. The specialist was keen to stress that the difficulties and delay that the boy had had not been caused in any way by the mother.
She liked the parents and child to work with one therapist. She had not done as much observation and not worked with the boy as much as she would have liked to, that had been for a number of reasons and there had been slow progress. Another therapist had worked with the boy and his mother but that had not worked out because of a disagreement between mother and the therapist.
She said that if the boy did not go to school his development would be impaired. In school he could thrive socially and developmentally, if not academically. She believed school would be better for him. She said all children and parents had to learn to separate from one another and this was mostly done naturally by attendance at school. This had not happened for this boy. The boy had not really been interested in playing with other children. There had been difficulties and issues with interactions with others. These needed to be addressed as the boy would not be able to live in isolation all his life, he had to learn to have some interaction in society and this would help prepare him for the future.
She said his mother would not be with him forever and school was the first step toward social integration. The mother has done a fabulous job to date, but she had no time for her own self-care needs. She had no time to recharge her batteries because the boy was with her 24 hours a day seven days a week.
The boy had been allocated home tuition, but this was no substitute for the benefits a school could offer. She said the mother was worried that a school may not be able to manage the boy but that was the purpose of her work and that of the other professionals who worked with the boy. She had worked with many children who had very challenging behaviour, along with their parents and schools.
She was confident a special school would be able to manage the boy. It would take time, it would not be easy and there would be problems. The transition would have to be carefully planned. There would need to be a plan from taking him to school and his reception into school and it would involve all professionals, but the potential gains would be worth it. It was time to start preparing the child for the challenges he would inevitably face as an adult and that all started in a school that could meet his needs.
She said the National Educational Psychological Service (NEPS) had undertaken an assessment and although she was aware there had been difficulties with this being completed, it had been completed and had recommended a special school rather than an autistic unit within a mainstream school. She was aware that the mother had been directed to apply for a school placement and her experience was that in situations where parents had found securing a school placement difficult the CFA had been helpful.
Some schools could show reluctance because they were aware and worried about the resources that a child like this boy would need. Applications needed to be a collaborative process and done sensitively. She said she believed that if he did not go to school, he would miss out on many opportunities to advance and make the most of the abilities he did have.
Cross-examined by the mother’s solicitor, the witness confirmed that the boy had been exceptionally well cared for and had not been neglected. She acknowledged the boy had been receiving 20 hours of home tuition per week but said home tuition did not allow for any community or social interaction. If the tutor was sick, there was no replacement. Special schools had sensory rooms, grounds and gardens, some had swimming pools and just learning to navigate a different environment would be a huge benefit to this boy. She confirmed that the boy was receiving an education as mandated by statute and the Constitution.
Evidence of the educational welfare officer
The educational welfare officer said that he had been involved with the boy since 2017. He said he had been trying to help the mother secure a school placement for the boy since then. In 2019 it was suggested that an autistic unit within a mainstream school would be appropriate, but this had not materialised. He said there had been orders in 2019 and 2021 with directions to secure a school placement but it had not materialised.
He said the mother had commissioned a psychological report which had initially recommended a special school, but a further report said that he needed home tuition. In the intervening periods the mother had made limited efforts to apply to schools. He had offered help, but the mother had rejected this and said she did not need help to apply.
He said a special school needed a cognitive assessment of a child so the needs of the child could be planned for. The psychological assessment commissioned by the mother did not include this cognitive assessment. Therefore, any application to a special school could not be forwarded because of the lack of this cognitive assessment.
The Health Service Executive (HSE) had been approached to undertake this cognitive assessment, and NEPS had completed this earlier in the year.
It was not without difficulty to engage the mother in this process. Dates for this assessment had been cancelled by the mother. Strict timelines had to be adhered to for admissions to school. When the educational welfare officer informed the mother of this assessment she had said she was unwell but would make the assessment. However, that if there was any deterioration in her health, she would hold the educational welfare officer liable for the pressure he had put on her to attend the assessment.
He said it had been necessary to obtain an order from the Circuit Court to complete this NEPS assessment. The deadline for applications to special schools was normally the November of the preceding academic year, meaning one would apply in November 2021 for a place in school starting August/September 2022. The mother completed an expression of interest form in January 2022 which meant there would be another year’s delay before the boy would be offered a place in a school.
He said the mother would not give consent for the NEPS assessment to be disclosed to him and he needed to see the NEPS assessment so that he could clarify the school applications and placements. The boy was having home tuition, but this was an emergency measure and was not a substitute. The mother had delayed and thwarted every attempt to forward an application for a school placement.
On cross examination by the mother’s solicitor, he confirmed that in order to qualify for home tuition you must satisfy the Department of Education that a school placement is not available and therefore the mother had done this. The mother’s solicitor said that she would give evidence that she had applied to four schools, and all had said that they would not be able to offer the boy a place. The educational welfare officer repeated his assertions that the mother had not applied to all four recommended schools and had only completed an expression of interest for one school. He said she had frustrated the process by delay and not making timely and appropriate applications. She had refused any help offered.
Evidence of the social work team leader
The social work team leader said she was allocated to the case in 2019 and became team leader in 2021 and the case had been handed over to another social worker. She had been involved with this case since 2019 and there had been very little progress. Very little had been achieved and it was fair to say any progress made had been with a supervision order.
She said the first and second directions in the orders were to secure a special school placement for the boy and to work with the support services. The mother had frustrated this with threats of legal action against the social workers. She said she could only commend the mother for the care she had given to the boy and described it as exceptional but on this one issue of education she had not progressed and for the boy’s future it had to be progressed.
She said she wanted to secure a school placement for the boy and had hoped the mother would do this but she had not. She said she had not wanted to have to use the courts but she had no other option than to ask the court to dispense with the mother’s consent so that the CFA would be able to secure a placement for him. She also wanted the NEPS assessment to be released so that the CFA could complete all the necessary documentation for any application. She said she believed that the boy’s health and welfare would be impaired if this order was not made.
Evidence of the mother
The mother gave evidence that she had autism herself. She had applied to all four schools that had been discussed and had spoken to the principals who had said that they would have no place for the boy.
The judge asked if there was any corroborating evidence of this, any letters or phone records or if any of these principals had been called to give evidence, but there was no other evidence.
The mother said she did not object to reports being released if they accurately reflected the boy’s condition. She said she had done everything that was asked of her but was at the mercy of a school place being available. She would welcome whatever help the CFA or the educational welfare officer could give her and if they could secure a place she would welcome that. She wanted to ensure that school would be a beneficial place for her son and not a holding place.
The mother’s solicitor said the threshold was not met and the wording of the proposed supervision order was too wide and gave the CFA carte blanche. He asked the court to accept her evidence that she had tried to secure a school place and her evidence was that she had exhausted all options available to her.
He said section 19(4) of the Child Care Act 1991 stated: “Where a court makes a supervision order in respect of a child, it may, on the application of the Child and Family Agency, either at the time of the making of the order or at any time during the currency of the order, give such directions as it sees fit as to the care of the child, which may require the parents of the child or a person acting in loco parentis to cause him to attend for medical or psychiatric examination, treatment or assessment at a hospital, clinic or other place specified by the court.”
He said this section did not apply to education. The Constitution stated that parents are the primary educators of a child and whilst the state must provide access to education, the boy was receiving that in the form of his home tuition. He said the wording of the section did not permit the court to dispense with the mother’s consent. The court must specify what services were required and the order proposed by the CFA did not do that.
Counsel for the CFA said that the threshold had been met. Evidence had been heard from the social work team leader and the ABA specialist that there were reasonable grounds for holding the welfare of the boy had been or was likely to be avoidably impaired. He said evidence was given that the boy was missing out on development stages of separation and engaging with the wider world. It had been given in evidence that a school with the correct planning would be able to meet the boy’s education needs. Although section 19 of the Act did not specifically say education it could be interpreted that it applied to all the needs of a child, which included psychological assessments and education.
He said there was a positive obligation on a parent to educate a child and in the failure of that it fell to the state, which was why there was a risk of prosecution for failure to comply. If a parent for any reason could not do this the CFA was obliged to and to do this properly it would need to dispense with the mother’s consent to ensure that all parties had the correct information and facts. The remit of section 19 was not a carte blanche for the CFA but to only do what was in the best interests of the child. These orders had been made twice before and the child was still not in school. It was in his best interests that a school place be found for him, and the CFA were just seeking the ability to do that.
The judge said this was an application under section 19 of the Child Care Act 1991, which stated: “19(1) Where, on the application of the Child and Family Agency with respect to a child], the court is satisfied that there are reasonable grounds for believing that
(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused, or (b) the child’s health, development or welfare has been or is being avoidably impaired or neglected, or (c) the child’s health, development or welfare is likely to be avoidably impaired or neglected.”
She was satisfied the threshold for section 19(1)(b) and (c) had been met. The mother was the sole carer and had done her best and cared for the boy exceptionally well. However, section 24 of the Child Care Act 1991 stated: “In any proceedings before a court under this Act in relation to the care and protection of a child F193[and in proceedings before the High Court under Part IVA (as amended by the Child Care (Amendment) Act 2011) in relation to special care], the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—
(a) regard the welfare of the child as the first and paramount consideration, and
(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.”
This, and the Constitution, imposed obligations on parents and gave rights to the child. The court had to consider the boy’s welfare and best interests and must take steps to vindicate these rights. The issue in this application was straightforward, the boy needed to be enrolled in a school that would meet his needs. That enrolment was a process and certain steps had to be taken and they had not been.
The mother had said she had applied to four schools but had offered no evidence in support of this. The evidence of the educational welfare officer was that she had completed an expression of interest to one school and that had been after the application deadline. Given the evidence of the ABA specialist and the social work team leader the judge was not satisfied home tuition was in the child’s best interests and did not meet his educational needs. She said section 19(4) gave the court a wide discretion to make orders that would protect and vindicate the rights of the child.
The judge said she would make orders as had been requested in the draft order proposed by the CFA. She said she had grave concerns regarding the implementation of the order and for that reason the court would case manage the matter. She said she would review the matter in three months to ascertain what steps had been taken to secure a school place. She reminded the mother that the court had powers to fine or imprison people who did not comply with court orders.
At a hearing three months later, the District Court judge adjourned the review of the supervision order as little progress had been made. The mother had applied for a judicial review of the decision to grant the supervision order. The mother was not present in court but was legally represented by a barrister.
The barrister for the mother said the review should be adjourned until the outcome of the application for judicial review was known.
The judge said she remained concerned for this boy that another academic year may pass and he would not be at school. She adjourned the matter for two months and stated that all the directions she had made in the supervision order were to remain in place.