IEDC 19
AN CHUIRT DUICHE THE DISTRICT COURT
Child and Family Agency
First named Respondent
FIRST NAMED RESPONDENT
CHILD CARE ACT, 1991- SECTION 18(1)
1. This application pursuant to s.18 of the Child Care Act 1991 (hereinafter referred to as ‘the 1991 Act’) by the applicant, the Child and Family Agency, for care orders in respect of the children was heard over 4 days and care orders for each of the children until they each reach their age of majority were granted by me on the 3 October 2014. I will now proceed to set out the reasoning for my decision to grant care orders for each child together with my directions as to their care and to regulate access between them and their parents.
IN THE MATTER OF child A, child B & child C, Children
12 November 2014
2. The respondent parents were in attendance at the hearing and choose not to engage legal representation. They opposed the application but did not call any evidence to contradict the evidence of the applicant Child and Family Agency.
3. The applicant called Garda MW to give evidence of the circumstances under which s.12 of the 1991 Act was invoked and which resulted in the children’s reception into care. Sergeant TT gave evidence of his follow up visit to the family home and his concerns for the mother’s bizarre presentation and condition of the family home. The out of hours social worker and the duty social workers gave evidence of the children’s presentation on their reception into care, the difficulty they experienced in engaging the mother and the initial concerns they formed regarding the children’s welfare while in their mothers care. I have also heard the evidence of the senior education and welfare officers who gave evidence of their conclusion that the mother was not providing adequate home schooling for the children. I have heard the evidence of the clinical psychologist who gave evidence of each of the children’s skewed development, socialisation and educational attainments which she attributed as most likely resulting from the neglect they experienced in their parents care. She described each child’s individual pattern of needs and suggested supports necessary for each child to address these significant deficits. I have also heard of further specific assessments for Child C which ruled out Autism Spectrum Disorder but which did note the child’s significant difficulties with language and in performing activities of daily living most likely due to his/her experience of care in an atypical and difficult living environment at home. I have also heard from the social workers allocated to this case of their concerns of the significant neglect the children have suffered in terms of their health, education and social development and the difficulty social workers have had in engaging the parents in any discussion about the children’s difficulties and experiences while in their parents care. I have also heard medical evidence which indicates the children’s medical care has been neglected.
4. I have determined, and the respondent father has agreed, the mother not being present in court at the time of my enquiry pursuant to s.23 of the Children Act 1997, that it is not in the welfare interests of the children to be called to give evidence either directly or by way of video link or via intermediary and that the schedule of statements made by the children were to be admissible as evidence in this application. Having heard the witnesses to whom these statements were made I am satisfied it is in the interests of justice to admit the statements and that to so do does not constitute an unwarranted unfairness to the respondent parents. Therefore I have admitted the statements and attach them with the full weight of evidence.
5. I have heard the evidence of the court appointed Guardian ad Litem who has expressed to the court each of the children’s wish to remain in the Applicant’s care, not to have contact with their mother and their wish to continue to access with their father which has recently resumed. She has expressed her concern regarding each of the children’s high level of need and the parents’ lack of insight or apparent ability to meet these needs. She has also expressed her concern regarding the conclusion reached by the National Education & Welfare Board in 2009 that the children were receiving a minimum level of education at home and the inaction of agencies, including the Health Service Executive, the National Education & Welfare Board and the gardaí, to protect the children until they took matters into their own hands and effected their ‘escape’ from the family home in October 2013. I have granted the guardian leave to refer these concerns to the Ombudsman for Children for further investigation. The guardian supports the Child and Family Agencies application.
6. In the absence of any evidence to the contrary I am satisfied to make the following findings:
THRESHOLD CRITERIA FOR CARE ORDER
7. Section 18 of the 1991 Act sets out the criteria for taking a child into care.
(i) the children effectively organised themselves to escape from the family home and the care of their mother and themselves sought alternative care and protection;
(ii) that while in the care of their mother the children suffered significant degrees of educational neglect;
(iii) that while in the care of their mother the children have suffered neglect of their health;
(iv) that while in the care of their mother the children have suffered significant neglect of their social development;
(v) that the children have suffered physical abuse while in their mother’s care;
(vi) that there is reasonable cause to believe that the children’s experience of neglect and abuse found at (ii) to (v) above is as a result of their mother’s unaddressed and untreated mental health problems and alcohol abuse;
(vii) that neither parent has demonstrated any insight into or ability to meet the children’s needs and they have refused to engage with any support services to address the children’s care and assessed deficits;
(viii) that the father has failed to act as a protective parent to the children while they were in their mothers care.
I am satisfied that the applicant has satisfied each of the threshold criteria set out at (a), (b) and (c) above.
‘18.—(1) Where, on the application of the Child and Family Agency with
respect to a child, the court is satisfied that—
(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused;
(b) the child’s health, development or welfare has been or is being avoidably impaired or neglected;
(c) the child’s health, development or welfare is likely to be avoidably impaired or neglected;
and that the child requires care or protection which he is unlikely to receive unless the court makes an order.’
8. Section 18(1) of the 1991 Act then requires the Agency to establish that the child requires care or protection which he/she is unlikely to receive unless the court makes a care order in respect of the child. Where the Agency establishes intervention is necessary to protect the interests of the child, and thus necessitates the making of a care order to address the harm or likely harm, s.18(2) of the 1991 Act requires the court to then consider the issue of the duration of the order and allows the court discretion to make an order until the child attains his/her majority or ‘for such shorter period as the court may determine’. In exercising this discretion the court must consider the appropriate duration of the care order on the evidence adduced and within the considerations of proportionality, the rights framework of the Constitution and the European Convention on Human Rights (hereinafter referred to as ‘the ECHR’) and relevant jurisprudence.
9. In considering the proportionate order to protect the child from harm the court must place the welfare of the child as the first and paramount consideration in accordance with s.24 of the 1991 Act. The test to determine when there should be an intervention by the courts is established in light of the Constitution, especially Article 40.3, Article 41, and Article 42.5. Article 42.5 states:
This test must also satisfy the requirements of Article 8 of the ECHR which recognises the right to respect for his private and family life without interference “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
“[i]n exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child”.
10. Here I am satisfied that the applicant has shown the children require care or protection they each are unlikely to receive unless I make care orders for each child and that such intervention is necessary for the protection for each of the children. There is no evidence before me to suggest that I should exercise my discretion in granting a care order of less than full duration for each of the children. I am satisfied that the failure of the parents in the care of the children in this case constitutes exceptional reason for interference in the family’s rights and that the interference with the family’s rights are properly in accordance with the law and necessary for the protection of the children’s health, development and welfare. I am also satisfied the duration of the care orders for each child is proportionate having considered the parents failure and refusal to address in any meaningful way the serious issues raised by the children and their health and education professionals since the children’s reception into care.
11. The care order for Child A shall continue until he/she reaches the age of majority and shall not expire until December 2014.
12. The care order for Child B shall continue until he/she reaches the age of majority and shall not expire until April 2018.
13. The care order for Child C shall continue until he/she reaches the age of majority and shall not expire until April 2019.
14. I make the following directions pursuant to s.47 of the 1991 Act:
15. I direct the applicant to facilitate reasonable access between the children and their parents in accordance with s.37 of the 1991 Act and direct the applicant to consider:
16. I grant liberty to apply.
(a) That this case is to be re-entered before the Court by the applicant and on notice to the parents and the guardian in the event that this case becomes unallocated to a designated social worker/fostering link worker for a period of 6 weeks.
(b) That this case is to be re-entered before the Court by the applicant and on notice to the parents and the guardian in the event any planned or unplanned change of the foster placement for any of the children.
(c) That this case is to be re-entered before the Court by the applicant and on notice to the parents and the guardian if the statutory child in care reviews for each child is not carried out for any reason.
(d) That this case is to be re-entered before the Court by the applicant and on notice to the parents and the guardian if the long-term foster care matching process is not carried out for Child B within 12 weeks from the date of this order.
(f) If the guardian in this case is no longer available, then the applicant is to bring an application to the Court to have a guardian appointed pursuant to s.23 of the 1991 Act.
(g) After care planning for Child B is to begin on, and an after care worker is to be allocated, within 1 month of the child’s 16th birthday in April 2016, and this matter to be re-entered before this court in April 2017 to assess the child’s after care service needs and a draft after care plan is to be submitted to the court for that date.
(h) After care planning for Child C is to begin on, and an after care worker is to be allocated, within 1 month of the child’s 16th birthday in April 2017, and this matter is to be re-entered before this court in April 2018 to assess the child’s after care service needs and a draft after care plan is to be submitted to the court for that date.
District Court Judge