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Child and Family Agency and NC & Anor (Care Order - Proportionality)
Neutral Citation:
[2014] IEDC 18
District Court Record Number:
Date of Delivery:
District Court
Judgment by:
Daly J.

[2014] IEDC 18

Child and Family Agency






11 November 2014

1. This is an 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 a care order in respect of a child. The Applicant is seeking a care order for the child until he/she attains his/her majority at age eighteen years. This application is supported by the child’s Guardian Ad Litem. At the time of this hearing the child was aged 3 years.

2. The respondent mother was in attendance in court for the hearing of this application. Counsel on her behalf indicated the mother’s opposition to the making of the order. The respondent father was also in attendance in Court. Counsel for the respondent father indicated his opposition to the making of the order also.

3. The applicant has called evidence of the initial social work assessment of the mother’s difficulties in caring for C and the support offered to her to assist in his/her care, and suggests her periods of engagement were not sustained and that repeated suggestions to enhance her parenting were not implemented by the mother. The social worker who conducted a core assessment of her capacity to parent the child was not available to give evidence. The social work evidence, while acknowledging that the mother has herself experienced a difficult childhood, suggests this trans-generational deficit has likely left her without a parenting ‘blueprint’. An assessment of the child’s needs has been carried out and has concluded that neither parent has the capacity to provide for the child’s safe and predictable care now and into the future. A care order is sought for the child rather than reunification with either parent as the applicant suggests there has been no sustained period of improvement in the mother’s ability to parent or keep the child safe nor has the father addressed his difficulties in the two years of social work involvement with this family.

4. The applicant has given evidence that the respondent father has at times engaged reasonably well with the social work department but suggests this engagement has increased as the date for the hearing of this application has approached. The Applicant argues that significant concerns regarding the safety of his accommodation, his on-going drug and alcohol misuse, and his relationship problems with the mother are sufficient bars to reunification of the child to his sole care. The parenting capacity assessment of the father was discontinued due to his failure to disclose important information regarding his past and members of his family with whom he resides which raise significant concerns for the child’s safety should the child be cared for by his/her father.

5. The respondent mother, herself a vulnerable young woman who has direct experience of the care system, gave evidence to the court where she acknowledged her drug addiction and outlined to the court her plan over the coming months to address this problem through attending a residential treatment and follow-up programme. Counsel on her part suggests the question to be addressed in this case is a question of a care order for the child of a more proportionate duration considering his/her young age and limited understanding, clearly setting out to the parents what they must achieve in their personal circumstances to avoid a further order of longer duration.

6. The respondent father did not give evidence and put the Agency on full proof, as is his right. Counsel on his behalf submits he accepts his current accommodation is unsuitable for him to care for the child and that he cannot today care for the child. She also submits the Agency has failed in it’s duty to conduct a proper assessment of either parents capacity to parent and suggests a care order to the child’s age of majority does not necessarily guarantee the child certainty or stability. She notes the Constitution prefers parents to third parties and argues the evidential shortcomings and the doctrine of judicial restraint suggests a care order of shorter duration, allowing access to the father for the purpose of reunification, is proportionate in this case.

7. The court appointed Guardian ad Litem for the child noted that he/she has had a very disrupted early childhood and he describes serious deficits of parenting on the mother’s part. He questions the father’s motivation and commitment to parenting the child. He recommends it is in the child’s best interests for a care order to be made for the duration of his/her minority and that a full review in one year is a fair and balanced approach for the parents to focus on their own needs and recovery.

8. Section 18 of the 1991 Act sets out the criteria for taking a child into care.

        “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.”

9. To satisfy the threshold set out in s.18(1)(a) and (b) of the 1991 Act the applicant must adduce evidence of the need to intervene by establishing, as a matter of fact, actual harm to the child through assault, ill-treatment, neglect or sexual abuse, or harm to the child’s health, development or welfare due to avoidable impairment or neglect in the past or at present. The standard of proof to be applied here is the ordinary civil standard of proof, i.e. on the balance of probabilities. To satisfy the threshold set out in s.18(1)(c) of the 1991 Act the applicant must adduce evidence to allow the court to assess the risk of future harm to the child. Shannon in ‘Child Law’, 2nd Ed., suggests the threshold test to be applied here is not the ordinary civil standard of proof and suggests the standard to be applied should be that set out in Re H and R (Child sexual abuse: Standard of proof) [1996] 1 FLR 80 where the House of Lords approved the standard set out in Newham London BC v AG [1993] 1 FLR 281. The Court of Appeal in Newham held that the threshold is met if, in the Courts view, there is a real or substantial risk of significant harm in the future and suggested this should not be equated with the balance of probabilities. Nichols LJ summarised the standard in RE H as follows;
        “….it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the future.”
I agree the correct standard to be applied when considering s.18(1)(c) of the 1991 Act is that the applicant must adduce evidence sufficient for the court to be satisfied to find a factual basis upon which to determine if there exists a real or substantial risk of future harm to the child.

10. Section 18(1) of the 1991 Act then requires the Agency to establish that the child requires care or protection which he 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.

11. 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:

        “[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”.
12. In Lancashire County Council and Another v Barlow and Another [2000] 1 FLR 583 the House of Lords stated that the application for a care order calls for immense caution and restraint and that Article 8 of the ECHR underlines this need for caution and restraint.

13. The issue to be determined by the court in this case is whether the threshold criteria set out in s.18(1)(b) and (c) of the 1991 Act has been met in respect of the child. In this regard I am satisfied to make the following findings:

        (i) that the child has suffered neglect while in the care of his mother;

        (ii) that the mothers admitted drug use and low mood has negatively impacted her ability to provide safe and adequate parenting to the child;

        (iii) that the mother has demonstrated a limited ability to engage with professionals who have offered support to her to address the deficits in her parenting;

        (iv) the father has failed to disclose significant information to the social work department regarding himself and members of his family with whom he resides;

        (v) the father’s current accommodation is not a safe place for him to care for the child and the father admits this accommodation is not suitable for him to care for the child;

        (vi) the father has a poor history of engagement with support services;

        (vii) that the Applicant has conducted an adequate assessment of the parents capacity to safely parent the child and has assessed the risk to him/her should the child be returned to his/her parents care.

Having found these facts I am satisfied these constitute the threshold of exceptional reason to interfere with the family’s Constitutional rights and that they are sufficient to determine there exists a real or substantial risk of future harm to the child should he/she be returned to the care of either of his/her parents at this time. I am also satisfied that this child requires care or protection which he/she is not likely to receive unless I make an order for his/her care.

14. Counsel for the mother refers me to the consideration of proportionality by my colleague in CFA v CG & JB [2014] IEDC 06. There the court stated;

        “It is clear that the Court must apply a proportionate test in determining the Order to be made in this case to assure the welfare of the children; but it must go no further than is strictly necessary to assure the welfare of the children”.
Counsel suggests the facts in this case of the parent’s age, drug dependency and capacity are sufficiently similar to allow me to make a care order of shorter duration than to the child’s majority. Counsel for the father also argues for similar restraint and suggests there is not sufficient evidence before me to warrant an order that would last for almost 15 years. The solicitor for the applicant argues that the evidence of the parent’s engagement over the past two years does not suggest either of their situations can be improved within the child’s limited timeframe. The solicitor for the guardian distinguishes the facts of this case as the parents are not meaningfully engaging with supports nor have yet taken steps to address their difficulties and points out that each case must be considered on its own facts.

15. In considering the duration of the order I cannot consider that a care order until the child attains the age of eighteen years represents a disproportionate care order in this case and that it is necessary for the protection of his/her welfare interests. The Court in CFA v CG & JB refers to the European Court of Human Rights in the case of YC v the United Kingdom (2012) 55 E.H.R.R. 33 at page 2012 where the Court emphasized that:

        "family ties may only be severed in very exceptional circumstances and …. Everything must be done to preserve personal relations and, where appropriate to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing”.
Here I am satisfied that such exceptional circumstances exist and that sufficient supports have been provided to the parents over the last two years, and will continue to be provided to them, to preserve the family relationship.

16. I am satisfied that a care order of this duration is proportionate in particular for the following reasons:

        (a) The evidence against the mother was compelling; while she now appears to be trying to come to terms with adulthood, parenthood, her own experience of care and her attendant problems she has not yet demonstrated a capacity to care for the child, nor has she demonstrated the capacity to gain such skills or avail of supports in the past two years.

        (b) While the father has demonstrated greater capacity to care for the child during access he has not demonstrated the motivation to make the necessary changes or avail of all necessary supports. The father’s lack of truthfulness to the social work department causes me serious concerns for his ability to provide adequately reliable or protective parenting to this child.

17. The care order for the child shall continue until he/she reaches his/her age of majority and shall not expire until August 2029.

18. I make the following directions pursuant to s.47 of the 1991 Act;

        (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 planned foster placement for the child.

        (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 the child 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 the child within 12 weeks from the date of this order.

        (e) This case to be listed for a full review of progress in care in November 2015 and the guardian is to be reappointed 6 weeks in advance of that date.

        (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 the child is to begin on, and an after care worker is to be allocated, within 1 month of the child’s 16th birthday in August 2027, and this matter is to be re-entered before this Court in 2028 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.

19. I direct the applicant to facilitate reasonable access between the child and his/her parents in accordance with s.37 of the 1991 Act 1991 and direct the applicant to consider;
        (a) the recommendations of the Guardian ad Litem;

        (b) that the purpose of access until the next review date must include the possibility of future reunification of the child with either of his/her parents should they make sufficient progress in addressing their personal difficulties.

20. I grant liberty to apply.

Colin Daly

District Court Judge

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