Unsupervised access to baby sought by parents – 2013vol1#23

An Interim Care Order was extended by consent while the parents of a young baby sought unsupervised access visits with their baby.

The solicitor for the HSE stated that the social worker had prepared a report which outlined her concerns about a number of matters including the lack of punctuality by the parents at their supervised access sessions. The barrister appearing for the father said the social worker was relying on hearsay on a number of occasions. The judge said the access workers should be on call to give evidence.

The child is a very young baby now in foster care and the father who is not an Irish citizen was prepared to hand in his passport. His barrister said the parents wanted to walk to the park and take the baby swimming without supervision. The parents currently have access on every week day but it takes place under supervision. Both the HSE solicitor and the solicitor for the Guardian ad Litem were in favour of the current supervised access remaining in place.

Relatively recently, the parents had asked the HSE if they could take their daughter swimming and this had been facilitated under supervision. They (the HSE) were open to further requests for supervised access and the hours had been increased recently. However, the parents had told the HSE they would not discuss access with them without their legal advisors being present.

The GAL solicitor said there should be a meeting to discuss access. There was a psychological assessment of the parents taking place and that was more important than the issue of supervised access.

The father gave evidence that he and his partner had previously had another child born outside the jurisdiction who had been taken into care and subsequently adopted. When that child was born, he and his partner received very little help and had trouble coping. They were both very young and they turned to drugs after their child was taken into care.

When his partner became pregnant again they decided to come to Ireland as she was Irish and wanted to return to receive help from her family. After the birth of the child there was a case conference where it was agreed that she would be taken into care.

He accepted in evidence that he had an opiate addiction but was now on a reduced dosage of methadone. He feels he is doing very well and has a part time job.

Access had been increased and he and his partner were now seeing their daughter five days a week. But there was always some-one there watching them and he felt he would be more at ease with her if he could take her to the park and into the community without supervision. He was drug free and not a flight risk. He and his partner were in the process of finding better accommodation. At a previous hearing there had been reference to fears that he was trying to take the baby from a hospital but that was not true and a doctor had given evidence that there had been a misunderstanding and they weren’t planning to remove the child against medical advice.

There was disagreement between the HSE and the father regarding whether or not he had been late for access appointments. The father accepted that he had been late on a few occasions for reasons such as car problems but he disputed other dates on which the HSE said he was late.

A plan of reunification with their daughter was being arranged by an agency and weekly meetings were taking place. He said that when he and his partner asked for more access they had been told that there were insufficient resources for supervision. He was aware that there were psychological assessments outstanding. He said his relationship with the baby’s mother was “great”. They had been together for six years and were planning to get married. “We never argue. We’ve a great relationship,” he said.

He complained about the size of the room where the access took place and said it was about 12 foot by 8 foot. The HSE solicitor said the social worker would give evidence that the size of the room was adequate. “She is a baby who needs a lot of stimulation and she is not getting it in a room of that size,” he said.

The HSE solicitor put it to him that he had moved to Ireland after a meeting with the social services department in the country where he previously resided. “Had you told them of your plans?” “No I didn’t,” he replied.

The solicitor said the HSE certainly had a concern in relation to flight. The psychological assessment was going well and she felt it would be best if that was completed before supervised access is ended. He was asked by the HSE solicitor about the dispute regarding his punctuality at access.

“Do you have your own records?” “I have some.” “Do they correspond with the social worker’s record?” “They don’t accord.” “Do you accept the HSE would like you to prioritise your access times?” “Yes I take that on board.”

The solicitor for the Guardian ad Litem asked him if he had another child in his home country and she stated her name and date of birth. He denied it. “I have no idea who that is,” he said.

The GP who is treating the parents said they were making good progress. “They’ve caused me no concern with regard to their drug treatment,” he said.  In relation to the father he said: “Presentation is consistently good despite the stressful times he has been going through. He’s provided urinalysis since he arrived and they’ve been consistently opiate stable. He’s not been using heroin.”

Asked what his views were on unsupervised access he said: “I would have no concerns about that.”

There was no difference in presentation by the mother. Stability was there. Her urinalysis showed one or two opiates present but she told him she had taken codeine for toothache. Clinical presentation was such that it appeared to him that there was no heroin usage. “They are easily in the top 10 to 15 per cent of our recoverers,” he said.

Asked if he had any concerns about her having unsupervised access, he replied: “Absolutely none.”

He said the mother was also on an SSRI prescribed by a psychiatrist. “Sometimes she is stressed by this situation but she is never under the influence of medication.”

A project worker with a child care agency gave evidence of meeting the parents who self-referred to the agency. She had ten individual sessions with them and five parent and baby sessions. They worked on reunification preparation and were never late. They engaged and presented very well and she never had a concern or issue about drugs.

They interacted with their daughter very positively. They showed love and affection and were reluctant to say goodbye on Fridays because they would not see her till Monday. She was a very happy baby and she responds to them. She has had three different foster placements. Asked for her opinion of unsupervised access she said: “I can only go on what I observe but I feel they need to progress at some level. I wouldn’t have concerns about it. No.”

“Did they take your suggestions on board?” the judge asked. “I saw them implementing what I suggested”, she replied.

The mother was asked about a report by an access worker that she was anxious at one of the session and she replied: “I wouldn’t be right if I wasn’t anxious. I have an anxiety disorder. Somebody sitting in a corner watching you can make you anxious.”

She said the access took place in a room which was very basic and not suitable for a baby. All the toys there were for 5-year-olds.

Asked why she wanted unsupervised access she replied: “God why wouldn’t I? I love my daughter to death and it’s so hard sitting in the room with someone staring at you. I dream about taking my baby to the park in the buggy. The most basic things mean the world to me.”

The HSE solicitor asked her why she came to Ireland and she said she wanted to come as soon as she found out she was pregnant as she felt socially isolated. Asked about being late for access appointments she said she was very sorry but now had a notebook to take note of the access times. “You’re not mentioning the days I was on time,” she said.

She was asked about one access session where she got very upset because her partner was two hours and five minutes late. The HSE solicitor told her the access worker would say that she was upset because she thought her partner had left the country. Asked why she got upset she said it was because she could not find him and he was going to miss access.

“This is my second child that was taken. We agreed to that [earlier] adoption. I was a wee bit upset and I couldn’t contact him and he was going to miss access.”

She said she didn’t agree that supervised access should not take place until the psychological assessment was over. She admitted there was an outstanding bench warrant for her in the country where she previously resided and said that related to the possession of diamorphine.

The HSE solicitor said she did not wish to over-emphasise the dispute over access times.

The social worker stated that she would be concerned about unsupervised assess at this stage. It needed to be in a structured place where the parents and baby can get closer together. Such a young child would not need so many toys. The room where access took place was always warm and in her view was suitable for access for a baby with her parents.

The access swim took place without any problems and the social work department was willing to arrange other outdoor access. Asked why she had concerns about unsupervised access she stated there were ongoing concerns about drug use and a possible flight risk. She was asked by the judge if she was disputing the evidence of the GP and she said she wasn’t disputing his opinion but “we don’t know for sure.”

The social worker said that the father had asked for unsupervised access but she felt that the time-keeping wasn’t great and that they should wait for the psychological report. She stated that the parents had not always taken on board the importance of time-keeping and it was a question of trust.

While she accepted that the GP would know more about the medical aspects there was a concern that a social worker found the father was drowsy during an access period. There was concern that he might flee the country because he had spoken about it. She accepted that they were both stable now but she added: “That doesn’t mean that will always be the case.”

The solicitor for the guardian ad litem said the guardian would suggest that a semi-structured supervised access in the community would help and the social worker replied they would always be working towards unsupervised access.

The social worker said she was not aware of any attempts by the parents to abduct or flee with their other child who was adopted in the country in which they had previously resided.

The judge then adjourned the hearing to hear evidence from three access workers and the Guardian ad Litem.

When the hearing resumed there was legal argument over whether the HSE could now introduce evidence which had not been put to the father when he was giving evidence on the previous occasion. Counsel for the father objected and the HSE solicitor cited case law which stated the rights of the child must take precedence over the rights of the father and that the paramount consideration is the welfare of the child in deciding what evidence is admissible. She cited another Supreme Court case where it was held that an inflexible rule in child care law was not appropriate. Counsel for the father said both of these cases related to what a child had said to a social worker in sex abuse cases and related to hearsay. They were not relevant to this case.

The HSE solicitor submitted that what the cases were saying was that the normal rules of evidence do not apply and the court would be disadvantaged in an inquiry of this nature if all the evidence was not before it. The judge asked: “What about disadvantage to the father?” The solicitor said she was proposing to put the evidence to the father now.

The judge asked if it was evidence that was previously known to the HSE and he was told that it was in a report. The solicitor said the court must balance the disadvantage to the father and the requirement to hear all the evidence. Counsel for the father said neither of the cases were relevant in that they dealt with hearsay evidence of children. “She’s seeking to mend her hand,” she claimed.

The judge said if this were allowed to happen in the general course of events it could result in an unfairness and the HSE solicitor said the court must have all the evidence in an inquiry of this kind. The judge asked: “Are you saying there is no obligation on you to put evidence of any kind and later call him back? How far does this extend? When does it stop? Where is the line drawn? Are you suggesting there is no line because of the nature of these proceedings?”

Solicitor: “I’m saying they’re looser.”

Judge: “But how loose?”

Solicitor: “I have evidence from care workers who have concerns and I want them to put those concerns.” She said the court had the opportunity to ensure the father was not disadvantaged by allowing her to put those concerns to him.

Judge: “Is it not your duty when preparing your case that you bring all the evidence to court?”

The judge adjourned the hearing for lunch and to allow the HSE to have discussions with the other legal representatives. When it resumed, counsel for the mother said the HSE was relying on a document which alleged the father had another child in his own country. He had already denied it and had no difficulty in giving evidence on it again.

The second matter the HSE wished to deal with was an allegation that the father was drowsy at two access sessions. His GP had met with him on one of the days and was now on his way to the court to give evidence and the father denied being drowsy on both dates.

In relation to a police report which the HSE wished to introduce, the court had already heard evidence from the social worker about his alleged acknowledgment of the child. The HSE solicitor said the police report was compiled for a pre-birth conference and that there is a reference in it to his child and having access to it.

The HSE solicitor said he had got drowsy during the course of access and this was after he had seen his GP. The judge said that in the interest of fairness to the parties he was going to allow her to put it to the father and the GP can be recalled. Referring to the police report, counsel for the father said he firmly denies that there is another child and there was no record of any maintenance or access applications.

The judge said he was reluctantly allowing the HSE to put the drowsy issue “because this is an inquiry and we are pushing the rules out to the edge.” He would not allow the issue of the police report to be put but would allow the social workers to be questioned about the father’s alleged drowsiness.

The solicitor for the GAL told the court the guardian was concerned there seemed to be a difference between the access reports and the social workers’ report.

Counsel for the mother said she was concerned the HSE was holding back access reports and she cited an ECHR case which held that parents should be given all the documents. She was concerned that the HSE was cherry-picking. She had not had access to the access reports, just the social reports. The judge said the problem was that all of that would only come to light when all the evidence is completed.

The solicitor for the GAL suggested an adjournment in order that all the access reports could be read.

Judge: “I don’t know I can continue where the guardian is saying there are reports which might be relevant. However I am extremely concerned that these matters are only coming before the court now. I am extremely concerned at the way this case is being conducted.”

The judge ordered that the access reports in their entirety be released and that the guardian should conduct a full review of the social work file. He adjourned the hearing, reluctantly.