[2016] IEDC 08
Tusla Child and Family Agency
Applicant
Respondent
In the matter of (Child 1) and (Child 2)
Section 18(1) Child Care Act, 1991
[Note: This version of the original decision delivered is PREPARED for THE PURPOSE OF Publication. Any changes from to the original are intended only to be as to form and not as to substance, AND ARE for the purpose of reducing the possibility of identification of the children.]
INTRODUCTION
1. By an Order, held in summer 2015, Child 1 and Child 2 came into the interim care of Tusla, the Child and Family Agency (hereinafter referred to as the Agency). The Interim Order was extended to the date of this hearing. The Agency sought a Care Order under section 18 (1) of the Child Care Act, 1991 in respect of each child until they each attain the age of 18 years.
2. The Agency had been in the process of a residential assessment of the mother’s capacity in relation to her parenting of the children (both of single digit age) when the mother left the jurisdiction to reside with a new partner. The Agency was aware of the difficult family circumstances of the mother before the birth of the children.
3. The substance of the Agency case was that the respondent mother lacked the capacity to care for the children due to a combination of complex reasons, one of which includes her intellectual disability. The Agency case was that while in the care of their mother both children were exposed to the highly conflictual relationship of their parents and the substance abuse of their now deceased father. The children engaged in sexualised play when they were in the residential assessment centre with their mother. Both children suffered physical and emotional abuse, chronic neglect and feared the mother’s new partner. Child 2 was also exposed to the known dysfunctional relationship of the mother’s extended family.
4. The case was heard over two days. Unfortunately, the Agency booklet of pleadings provided to the Court did not contain a Statement of Facts outlining the core issues in dispute and the evidence to be adduced to establish same (Practice Direction 14.5). However, it was acknowledged that a comprehensive Statement of Facts was served on the mother’s legal team in advance of the hearing. Counsel for the mother informed the Court that they had no instructions from their client and so a reply to the Statement of Facts was not filed on the mother’s behalf in compliance with the Court’s Practice Direction. The Agency was accordingly on proof of all facts and matters alleged. The mother’s advocate was present with her solicitor throughout the hearing, although the mother was not present in Court over the two-day hearing.
5. The Agency also applied to admit the hearsay statements of the children admitted as evidence, pursuant to section 23 of the Children Act, 1997.
EVIDENCE
6. I heard evidence over the two days from the following witnesses called by the Agency:
SECTION 23 HEARSAY STATEMENTS
7. The children in this case are young. I heard evidence from four witnesses, three of whom are very familiar with the children, that the children in question are very vulnerable. The evidence was that it would be very traumatic for them to have to give evidence either directly or through video link with or without the presence of an intermediary known to them. I accept that evidence. Accordingly, by reason of both their age and welfare, I find that it would not be appropriate to hear their evidence directly.
8. While the most effective way of testing a witness’s evidence is through cross-examination [Cullen v Clarke [1963] IR 368 at 378] and where witnesses are competent, compellable and available it may not be necessary or appropriate to receive hearsay evidence. However, I am satisfied that this is not the position in this case and section 23 of the Children Act, 1997 provides a statutory mechanism for the Court to receive the hearsay evidence of children subject to certain important legal safeguards.
9. Notice as provided for by section 23 (3) was served in this case and the notice defined both the statements sought to be admitted and the relevant context of the making of the statements. The service of the notice or its adequacy was not challenged by the mother’s legal team.
10. I was also satisfied that the statements sought to be admitted were made to professional care workers, a social worker and a Guardian Ad Litem rather than to non professionals.
11. Section 23 (2)(a) provides that the sundry hearsay statements of Child 1 and Child 2 cannot be admitted, if in the opinion of the Court, the statement or part of the statement would not be in the interests of justice. Section 23(2)(b) provides that when considering the interests of justice requirement the Court must have regard to all the circumstances, including any risk that the admission of such statements will result in unfairness to any of the parties to the proceedings.
12. Section 24 provides that even were the Court is to admit a hearsay statement or part of a statement the Court must carefully weigh the evidential value of the statement. The Court must regard all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise. Section 24(2) sets out particular matters to be weighed in the balance, but the Court must have regard to all the circumstances. Section 24 (2) provides that regard may be had, in particular, as to whether—
a) the original statement was made contemporaneously with the occurrence or existence of the matters stated,
b) the evidence involves multiple hearsay,
c) any person involved has any motive to conceal or misrepresent matters,
d) the original statement was an edited account or was made in collaboration with another for a particular purpose, and
e) the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
13. Where hearsay evidence is admitted following such analysis section 25 allows evidence regarding credibility of the child to be admitted, notwithstanding the fact that the child is not, strictly speaking, a witness.
14. Having applied the above analysis in this case to the statements of the children sought to be admitted I found that the statements of Child 1 made to the Social Care Key Worker and set out in Appendix 1 of the Notice should be admitted as these statements were made to the Social Care Key Worker directly within a therapeutic session. However, I declined to admit the note of the statement made by Child 1, as outlined in the evidence of the Social Care Worker, as these statements were not made directly to the Social Care Worker and so in the interests of justice I decline to admit that statement. This is not a negative reflection on the professional practice of the Social Care Worker in any way. I also admitted the statements made by the children to the Guardian Ad Litem set out in the Second Schedule and the statements made by the children to the Social Work Team Leader in the Third Schedule.
15. The hearsay statements of the children as set out were admitted by way of an exception to the rule against hearsay and so the circumstances should not only meet the requirements of the 1997 Act, but arguably should also meet the test of necessity in the interests of justice. In the case of Eastern Health Board v MK [1999] 2 IR 99 Denham J pointed out that;
“...The rule against the use of hearsay evidence was developed by judges through common law. It is a rule developed to protect fair trial process. In general, assertions made by persons who are not called as witnesses are inadmissible to prove the truth of the matters stated therein....The fact that new exceptions have been made in recent times by the legislature to extend the list of exceptions to the rule does not per se exclude the jurisdiction of the Courts.”
16. I am satisfied that single hearsay was involved in the statements admitted. I am satisfied that the professionals to whom the admitted statements were made were available for cross-examination as to the timing and accuracy of the statements, the recording of those statements and the circumstances in which the statements were made. The fair procedure rights of the mother and the interests of justice were thereby served. The rights of the children were also served. I also carefully assessed the weight to be accorded to the statement admitted. In addition to the cross-examination of the witnesses undertaken by counsel for the mother the Court, as a court of enquiry, also interrogated the circumstances of the making of the hearsay statements prior to admitting same.
FINDINGS
17. It is not intended to rehearse the detailed evidence of each of the witnesses who gave evidence in this case save to the extent necessary to explain my Findings of Facts.
18. The Psychological evidence of the Clinical Psychologist established that the mother has an intellectual disability and operates at the lower end of the mild range of intellectual functioning. The mother has some ability to learn cognitively, however, the emotional and cultural challenges she faces make this very difficult for her. At an interview the mother disclosed a history of familial sexual abuse, exposure to parental alcohol abuse and bullying. Maladaptive strategies developed by the mother render her avoidant which does not serve her children well. The Clinical Psychologist concluded that the mother is not emotionally available to her children at this time. She is grieving the death of the children’s father who was violent to her; while she left him on occasions she always returned to him. She is now involved with another man.
19. The evidence of the Social Work Team Leader vividly revealed the difficulties which arise when a family troubled by longstanding generational problems and very difficult circumstances in their lives come to the attention of the Agency. It is clear that the various social workers involved with the case over the years had an earnest intent to advance the best interests of the mother who is, according to the evidence, a very vulnerable and likeable person. While perceptions differed about what should happen throughout the time this case was open to the Agency, the level of genuine concern for the mother did not.
20. The Social Work Team Leader was clear that the mother’s own childhood experience was as a very vulnerable child in a family where substance abuse was accepted as a normal way of life and where her needs as a child were not prioritised. The children’s father was violent to the mother and impoverished her to finance his addiction from which he ultimately died. Her observation of the mother’s current relationship was that it also followed this pattern and this man is incarcerated in another jurisdiction. The children have witnessed this man strike their mother and they fear him. The children have disclosed exposure to sexual abuse and these disclosures have been explained to the mother. The mother’s response to the Social Work Team Leader was to ask why the social workers did not take her into care when she was a child in light of her own experiences of abuse.
21. The Social Work Team Leader outlined further that Child 1 has a mild intellectual disability, language delay and a history of poor school attendance. Child 1 experienced severe physical neglect resulting in a low blood count, dental abscises and decay. Concern for both Child 1 and 2 continued and there were very serious and significant concerns reported in respect of the children on a continuous basis which included dietary deficits, untreated head lice infections, dental decay and inappropriate exposure to chaotic family and extended family environments. Medical, dental appointments and speech and language were not kept to the detriment of the children, and the children were exposed to the elements in inappropriate clothing and finally rough sleeping. The children’s names were placed on the Child Protection Notification System. The family were ultimately admitted to a residential assessment unit. The chaotic situation continued during the assessment period resulting in both children’s name remaining on the Child Protection Notification System. In the period the mother became more committed to her current partners whom the agency believed to be an active drug user.
22. The Social Care Key Worker and the Social Care Worker gave evidence of their engagement with the mother and children in the assessment unit and the reasons underpinning their conclusion that the mother lacked the capacity to provide consistent physical and emotional care for the children by reason of their direct observations of her engagement with the children in the period.
23. The Guardian Ad Litem gave evidence of her very frequent and direct engagement with the children in the assessment unit. She indicated the fluctuating wishes of each child over time. Both children currently wish to stay with their current foster carer until they are ‘big’ unless returned to the care of the mother. Child 2 has stated that the mother’s current partner “hurt my bum” and this is currently being investigated by the Agency and An Garda Síochána. In the Guardian’s view these children having suffered from chronic neglect at a Dickensian level and suffered serious harm which will take a considerable amount of time and a high service level to remediate.
24. With such an overwhelming history of child neglect and emotional abuse there can be no "air of reality" to any submission that the children are not in need of protection and no such submission was made to the Court. The neglect started from the time of the birth of each child and it continued up to the time of the final removal of the children. These are both special needs children who need a high-level of care, and I find under section 18 (1) (a) and (b) that both children have been neglected and their health has been avoidably impaired, albeit that there was no intention to do so on the part of the mother. I also find that they are in need of care and protection and that they are unlikely to receive that care and protection unless the Court makes an Order.
25. I am satisfied on the evidence adduced before me that this mother does not have the capacity or ability to properly parent either of these children. The nature and extent of the neglect and emotional harm which the children suffered is such that there is little prospect it would be in either child's best interests to be returned to the mother even with substantial supports. Both children have made disclosures involving exposure to adult violence, adult drinking, lack of supervision, poor provision of food etc. When the mother and children were in the assessment unit there were incidents of sexualised behaviour by the children and the issues of sexual abuse is now under investigation, but no evidence was presented to the Court in respect of this issue and I make no Finding of Fact in respect of the same. Making a short term Care Order would not be justified or reasonable in light of the uncontroverted evidence heard over the two day hearing as to their long term needs for remediation.
VIEWS OF THE CHILDREN
26. The Guardian Ad Litem has provided the views of the children to the Court over the last year. Child 1 is now far less fearful than she presented at the beginning of the Guardian’s intervention. Child 2 is far more open, carefree and better able to express herself. Initially, Child 1 reported that she missed her mother and wanted to return to her extended family. When moving from the residential assessment unit to the foster care placement, Child 1 expressed the desire to go back to the unit, but now wishes to remain in foster care. Child 2 had very poor language skills or ability until recently, but as this ability has developed the child wishes to remain in foster care. Child 1 and Child 2 have expressed love for their mother, are concerned for her, enjoy seeing her and are sad when she does not come to access.
27. The Guardian has highlighted her incomprehension that the children were allowed to remain in a wholly unacceptable situation notwithstanding the fact that the family were known to many services. The Guardian is firm in the view that collectively, as a community, there has been a failure to protect the children. She has questioned the willingness to allow the children to remain with their mother notwithstanding known difficulties. She has asked the Agency to undertake an independent review of the file and the Agency has agreed to do so. The Guardian raises no issue with the management of the case by the Social Work Team Leader. However, she highlighted the need to understand the delayed response by various agencies to the children, so as to avoid these matters happening again.
28. The Guardian notes that the children’s current foster placement is not entirely culturally appropriate to the children’s background although efforts will be made to address this appropriately. However, primary focus should be given to their overwhelming needs for other remediation to be prioritised and she approves the Care Plan and the current placement to be approved and matched as the long term placement for the children.
CONCLUSION
29. I make a finding under section 18 (1) that both children have been neglected, and their health, development or welfare has been avoidably impaired and neglected, and their health, development or welfare is likely to be avoidably impaired or neglected unless the Court makes a Care Order in respect of them.
30. That the children are in need of protection and the duration of the Order required to remediate the harm done will be until each child has attained the age of eighteen years.
31. The mother’s access to the children in care should be regulated by the Agency in accordance with section 37 of the Act.
32. I direct the Agency to re-enter the Case before the Court to assess the progress of the forensic and therapeutic analysis of the disclosures recently made by the children so that the Court can make appropriate orders in the interest of the welfare of the children.
33. I direct the Agency to provide the mother with all supports necessary to assist her as a vulnerable mother in meaningfully participating in access with the children in light of the evidence received as to the best interests of the children.
34. Final Direction under section 47 to be adjourned to facilitate ongoing dialogue between the Agency, the Health Board and the Guardian Ad Litem regarding the remediation services to be made available to the children (Speech and Language, Occupational Therapy, Play Therapy and other therapeutic supports) and to allow the Agency submit the Care Plan for the Children to the Guardian Ad Litem and Court and to afford time to the Agency to finalise the foster Care placement having regard to the matters set out in the Guardian Ad Litem Report in 2015.
35. I want to thank counsel for their helpful and well considered submissions in respect of the matter of the section 23 Children Act, 1997 hearsay statements of the children which were helpful.
Rosemary Horgan
District Court Judge