The District Court extended care orders for three children of primary school age following allegations of neglect and domestic violence. The mother had suffered from serious mental health issues, but it was agreed by all parties that she was engaging very well with the supports offered to her and was working towards family reunification.
The solicitor for the Child and Family Agency (CFA) said that a care order had initially been granted in February 2019 for a period of 18 months in respect of all three children, and was extended in August 2020 to the date of the hearing. She said that the CFA was seeking to extend the care order for Child A and Child B to the age of 18, and for a further two years in respect of Child C. The barrister for the guardian ad litem (GAL) said that the GAL was supporting the CFA’s application.
The mother was represented by a solicitor and a barrister and was present on each day of the four-day hearing. The father of A and B was present on the first day of the hearing only and was not legally represented. The solicitor for the CFA told the court that C’s father had not been identified. A and B’s father said that he was waiting on a paternity test to confirm whether or not he was also C’s father.
The mother’s barrister told the court that the mother was only consenting to the extension of the care order in respect of C for a period of one year. She said the mother accepted that C was “at the point of crisis” when he went into care, and that there had been a negative effect on his wellbeing, but felt that a one-year extension was proportionate. The mother was not consenting to the care orders as sought in relation to A and B. The judge asked whether it was possible for the parties to come to a compromise in relation to C without the court’s intervention.
Compromise on one order
CFA solicitor: “My instructions are to seek the full two years for [C]. [C’s] circumstances are very complex, he is in a residential placement currently but it’s hoped that he will go back to his previous foster carers before we can look at him going back to his mother.”
Judge: “Does the mother know that?”
Mother’s barrister: “Yes, she is very aware of that, she has had very good access facilitated by the foster carers [for C] previously, she has an excellent relationship with them and believes that she can be very involved when [C] transfers back to them. This is why she will only consent to the one-year care order. She is afraid that if she consents to the two years, there will be little to no possibility of [C] coming back to her.”
Judge: “Two years seems like an awful long time for a parent to have to wait, it seems there might be some compromise here. Would you consider having a conversation about that now?”
The parties agreed to have a discussion in relation to C and when the hearing resumed, the CFA solicitor told the court that agreement had been reached and a care order under section 18 could be made in respect of C for a period of 18 months, with a review to take place in one year. The mother’s barrister for the mother confirmed the terms of the agreement.
The allocated social worker for C told the court that it was her professional opinion that the circumstances at the time of the granting of the initial section 18 order continued to exist and that C continued to require the protection of a court order. When asked by the mother’s barrister whether the CFA would be willing to put in place frequent care reviews “beyond what was required by statute,” the social worker replied that the CFA was satisfied that regular reviews were necessary as C was in residential care.
Judge: “In those circumstances, I will proceed to make the order. The court is satisfied that [C] requires ongoing protection so I will extend the care order for a period of 18 months, to May 2022, and I will order a court review in 12 months’ time. I will further order that the GAL remain in place for the duration and that all previous directions will remain in place, including that access continue be at the discretion of the CFA.”
The judge asked whether similar progress could be made in relation to A and B. The mother’s barrister said that she had spoken with the mother who was willing to consent to an extension of the order on the same terms as C, for a period of 18 months with a review after one year. The CFA solicitor said that she was not in a position to consent to this and was seeking full orders to the age of 18 in respect of A and B. The judge said that in those circumstances the court would proceed to hear the evidence. The first witness called by the CFA was an attachment expert.
Attachment expert
The attachment expert outlined her qualifications and said that she was a trained social worker, but also had other qualifications in attachment and therapeutic work. She confirmed that she had prepared two reports for A and B in February 2020 on the basis of attachment assessments she had carried out. She told the CFA solicitor that the purpose of these assessments was to look at how the girls were able to “navigate their way in relationships.” She explained that this was done by combining assessments individually, as well as with A and B’s carers.
CFA solicitor: “I think you carried out specific assessments in relation to trauma for the girls?”
Attachment expert: “Yes, the CFA was looking for assessment as there was an understanding that the girls had suffered abuse at home. There was also a worry at that time in relation to the foster carers perhaps exacerbating the issues…”
The attachment expert was asked about the content of her report in relation to A, and said that her primary focus was a review of the attachment relationship in her current placement with her foster carers, which she said was carried out with the foster carers.
Attachment expert: “I undertook an adult attachment interview with [the foster mother]. This was a way of assessing her state of mind in relation to attachment… It’s essentially about optimism for future relationships. I also carried out a child attachment play assessment, which is a story-based assessment using dolls and play furniture. The idea here is to use the dolls to start a story and ask the child to finish it. How the child tells the story and how they use their ability to engage with the assessor will give an idea of whether there is unresolved trauma. The idea is to show how children view relationships.
“I also used the MIM strategy (Marschak Interaction Method). This is a technique for observing an adult and child while they perform a series of tasks together. What this shows is that often with children who have suffered trauma, they may be stuck in a particular place… In addition, I also carried out an assessment checklist for [A]. The checklist looks at categories of behaviour and I asked the foster carer to go through this.”
CFA solicitor: “What was your overview of [A] in your report?”
Attachment expert: “[A] was raising more concern than [B], as she was having outbursts which were quite violent at times and she was very stressed. There was a concern as to how safe she was feeling and this was very difficult for the foster carers. After these incidents she would go into a daze, she was trying really hard to be good. She was aware that these behaviours were creating difficulties but without the strategies available to process this like an adult would.”
The attachment expert said that A “tries to be good as gold,” but has realised that “being good as gold hasn’t actually fixed anything for her.” She said that during the assessment, when A was not looking at her, she would often look “quite sad and quite serious.” She said that in general, attachment strategies take about three years to develop fully and that ongoing therapeutic intervention and therapeutic play was very important for A and would hopefully allow A to start trusting adults more.
When asked about A’s access with her mother, the attachment expert told the court that B “demands a lot of attention and maintains mum’s attention.” She said that A “makes little bids to become involved so there is always a feeling of push and pull in the visits.” She said that A was not able to fully relax into the play, and that “the mother has seen this herself in access and so it can be quite stressful for her too.” She said that it would be much more beneficial if the mother could relax into the play as well.
The attachment expert was asked about A’s relationship with her foster carers, and told the court that concerns had been raised by the foster mother about “problem talk” and “moving around negative topics.” The attachment expert said that the foster mother “didn’t really know what was best to do in this regard,” but that this was understandable. She said that “for any foster carer trying to understand and respond to the needs of a child like [A] who can act out in order to gain attention was quite hard,” and that “a lot of foster carers feel they are on the back foot a lot of the time.”
Judge: “So are you saying that a foster carer can get very confused by the fact that a child might hit out at them when really all they want is a hug?”
Attachment expert: “Yes. For a child like A, her understanding of the world means that she will only get attention by hitting out, and this is really her way of not feeling forgotten.”
The attachment expert told the court that in her view, continued support was needed for A and B’s foster carers, including therapeutic support for the foster mother.
CFA solicitor: “How is [A’s] relationship with her mother?”
Attachment expert: “[The mother] engaged openly and honestly in the adult interview assessment and not all parents would do that, but what was really obvious was the trauma she felt in losing her children, so much so that she found it really hard to step back from the children, which is very understandable and she can’t be criticised for this.”
The witness said that if the mother wanted to move forward “in a healthy way” with the girls, then she would have to have support herself. She said that the mother was getting support now and was able “to think about her own experiences of pain, but not so much the other way around.” She said that the mother needed time and continued support and “bravery” on her part.
The attachment expert was asked what A’s overall needs in terms of care giving were, and told the court that A and B had said that they wished to stay in their placement. She said that “[A] needs to continue to engage in therapy, probably through the end of primary school, and likely again at some point in secondary school too.” She said that “[A] will have periods where she will need to fall back into therapy, but this won’t necessarily happen on a continuous basis.”
CFA solicitor: “If this court were to grant a shorter order, what impact would that have on [A]?”
Attachment expert: “Well usually if a child gets six to nine months of solid care then this can assist in developing the many complex relationships out there, but for [A], it’s clear that she really needs to feel secure… She doesn’t feel good enough for anyone and for her it’s the idea that someone wants her and has chosen her.”
The attachment expert said that A was not rejecting her mother and had “made bids to be with her mother and wants to see her.”
In relation to Child B, the attachment expert said that she was a “very charming, very bright and funny girl,” which meant that she probably had not gone through the same issues that A did. She said that the A was moving forward in her therapy, but B’s progress was somewhat limited. She said that B was “vulnerable” and found it hard “to relax and let go and let someone make a decision for her.” She said it was her view that B needed to continue with therapy.
The attachment expert was asked about access and said that “[B] wants to be at the forefront of her mother’s attention,” which the mother found difficult. She said that B was “small and cute and a force to be reckoned with.” She said that the mother struggled at access because B “wants to be in charge.”
CFA solicitor: “How has the trauma experienced by [B] manifested itself?”
Attachment expert: “She becomes fidgety and uncomfortable… she tends to show rather than tell. This doesn’t mean she has a language issue, but it does show that there is a potential developmental trauma… It will become more clear after the therapy if this is the case.”
The attachment expert said that she found it striking how “stuck” B was. She said that unlike A, she did not seem to be moving forward and was continuing to be “self-protective.” She said that B wanted to stay with her foster carers, and that her view was that B was waiting to know if she was going to be staying there permanently before “taking the leap.” When asked what effect a shorter order would have on B, the attachment expert said that it was very important that B felt secure. She said that the mother was not in the space yet to provide that security to B.
CFA solicitor: “I think your recommendation for both [A] and [B] is to have no increase in access right now?”
Attachment expert: “Not at the moment, no, we’re not quite there in my opinion.”
The attachment expert was cross-examined by the mother’s barrister and was asked a number of questions in relation to her qualifications and her independence as an expert witness for the CFA.
Mother’s barrister: “You might explain your independence in the process and who instructed you?”
Attachment expert: “I am a qualified social worker and that’s my background, but I don’t work for Tusla [the CFA] any more if that’s what you’re wondering.”
Mother’s barrister: “And you’re not a psychologist, is that right?”
Judge: “Are you questioning [the attachment expert’s] qualifications?”
Mother’s barrister: “I am to a degree judge.”
The attachment expert said that she was an independent social worker with separate qualifications in attachment. She said that her work was not overseen by a psychologist and that it was not required to be. The mother’s barrister asked the attachment expert to confirm that attachment was not a science, but rather “a theory.” The attachment expert said that while this was the case, it also had “good research in science and was strategy based.”
The attachment expert agreed that attachment strategies “can and should change over time.” When asked whether this meant that the assessments carried out on the girls in February 2020 were only relevant to that particular period, the attachment expert said that it could take up to three years to see effective changes taking place, but that “every child was different.” She said it was her view that progress would take place slowly with the two girls.
The attachment expert was asked about the various tools used to prepare her reports in respect of A and B and said that the girls had been videotaped to assist in the preparation of her reports. When asked why these videos had not been made available to the mother for the purpose of the care order application and whether they could be made available, the attachment expert said that she was not sure if they were still to hand and that it was likely she deleted them after six months due to data protection concerns. The mother’s barrister said that this was potentially prejudicial to the mother’s case.
The attachment expert was asked about the theories relied on by her in her reports. She agreed that her studies in attachment started with the theories derived from psychoanalyst, John Bowlby. It was suggested by the barrister that there had been a move away from Bowlby’s attachment theory towards a more reliable science-based approach and the barrister expressed concern that the witness had placed heavy emphasis on theories that were unreliable.
The attachment expert said that the introduction of blind coding created a safety net to prevent potential issues with interviewer bias. She was asked to describe how the coding system worked.
Attachment expert: “It’s about patterns, you look for patterns in the interview, like how people are able to hold themselves together with the child, there is no one sign or symptom, it is a lengthy process to code and it takes time. What you want to see for example is a pattern in how someone reacts, like laughing… you are looking at language, is it emotive or is it controlled? Is someone cooperative and open or do they seek help in answering… you might look at how professional language is used, it’s a complex process.”
The mother’s barrister asked the attachment expert about her view of A and B’s foster carers. She said that it was not clear in her report about the presentation of the foster mother and the difficulties she had faced in responding to A’s outbursts.
Mother’s barrister: “What was [the foster mother] doing that concerned you?”
Attachment expert: “She hasn’t done anything of concern, I think I made that clear in my report, but in her adult attachment interview there was some evidence of insecurity.”
Mother’s barrister: “Why was there a need for respite for the foster carers?”
Attachment expert: “Well, I wasn’t involved in that decision… but what I would say is that all new parents, not just foster carers, can become overwhelmed from the circumstances they find themselves in. It’s not unusual for any parent to need a break, and often family and friends are called on to help out and allow parents to take a break.”
Mother’s barrister: “You mentioned in your report in relation to [B] that [the foster mother] used shaming language with the girls, what did you mean by that?”
Attachment expert: “I said that she used language that could be perceived as blaming, but when she actually spoke about the children with me, she didn’t see it as their problem, she understood that there was a process.”
Mother’s barrister: “What supports were put in place for [the foster mother], did you give her psychotherapy?”
Attachment expert: “Yes, one session, but Covid got in the way. She was very happy to start the sessions though.”
The mother’s barrister asked the attachment expert about her conclusions in her reports on A and B. She said that the attachment expert had concluded that both A and B had suffered from developmental trauma as well as childhood trauma, but that the attachment expert had not carried out any clinical assessments, particularly in relation to developmental trauma.
Attachment expert: “I’m confident based on my observations that both girls have developmental trauma.”
Mother’s barrister: “But without an occupational therapy assessment, can you still say that?
Attachment expert: “Yes, I’m confident from my observations of the girls that there is developmental trauma there.”
The mother’s barrister asked her about her interview with A and B’s mother, which the attachment expert confirmed had been just over an hour long and had taken place 11 months previously. She confirmed that she had also observed access between the mother and the girls.
Mother’s barrister: “You say that [the mother’s] reflective functioning was very low, but that was a view you expressed 11 months ago?”
Attachment expert: “Yes. I was told she started some therapy since then and I would imagine it will take some time for changes to show. I am happy to carry out a further interview with her.”
Mother’ barrister: “Well [the mother] might take you up on that as you recommended no change in access, isn’t that right?”
Attachment expert: “Yes.”
Mother’s barrister: “If [the mother’s] reflective functioning was to improve, would your views on access change?”
Witness: “I think it would mean she could engage more fully, she needs to find the right support to help her engage more comfortably and positively at access.”
Judge: “So would I be right in saying that it’s about quality not quantity then?”
Attachment expert: “Yes judge.”
Mother’s barrister: “You recommended therapeutic intervention for [A] in February 2020, but this hasn’t happened yet. Is that of concern to you, do you have an opinion on that delay?”
Witness: “It would of course have been much better if it had happened by now, I think the lockdown restrictions have been extremely unfortunate, but it’s not something we have any control of right now.”
The mother’s barrister asked the attachment expert about the link worker assigned to the foster carers and why she had recommended this. The attachment expert said that it was her view that all foster carers should have a link worker.
Mother’s barrister: “In [B’s] report, you said that the foster carers felt unsupported by the CFA, [the mother] is concerned that if orders are made to 18 for both of the girls, she won’t be supported by the CFA going forward. Do you have a view on that?”
Attachment expert: “Well there is no question that she needs to be supported.”
The barrister for the GAL cross-examined the attachment expert and said that the GAL was going to give evidence that access could be improved and was going to make suggestions about the possibility of the mother having separate access with A and B. He asked the attachment expert whether she would support this.
Attachment expert: “That may well be helpful for the girls, but it would have to be based on the girls’ comfort. We would need to make sure that they are happy with any new arrangement.”
Social worker
The next witness called by the CFA was the allocated social worker for the two older children. She said that she had been assigned to the girls in January 2020, but that they had been in care since the summer of 2018 when the mother initially placed them in voluntary care. She said that the family were known to the CFA prior to A and B coming into care and that there were previous concerns in relation to domestic violence and neglect.
The social worker said that the family had been in and out of homelessness and that the children had experienced “severe fights” between the mother and her former partner. She said that the mother’s former partner was the father of the youngest child who was not currently in care, and had been “very violent in front of the children.”
CFA solicitor: “Could you give the court an overview of [A’s] profile?”
Social worker: “[A] is a beautiful girl. She loves to dance, she is very chatty and bubbly and has been in foster care with [her foster carers] for the last three years. She has a lot of difficulties, her foster carers were contacting me regularly from January onwards. There were some worrying issues, [A] was saying that she wanted to kill herself and was feeling very low. I was worried for her and agreed to refer her to counselling services. She is a little girl with a lot of needs around emotional and behavioural issues, but I have seen a lot of positive improvements with [A] in her foster placement. [A] and [B] have both started play therapy recently and it’s going really well. The hope is that the foster carers will be able to join in.”
The social worker was asked about the access arrangement in place. She said that access took place once a month and was initially supported by an access worker. She said that the access worker had since left and that she was supporting the access now. A recent access had gone very well, but that there had been ongoing concerns for A around access. The social worker said that A had not wanted to go to the last access, and found it hard to engage with her mother sometimes during access. She said that the CFA was “trying to encourage the relationship” between the mother and A.
CFA solicitor: “And [A] has made her views quite clear to you about her foster carers?”
Social worker: “Yes she is very happy in her placement, she loves [her foster mother], she is very settled there and she’s settled in school and the community there. She does need a lot of support from her foster carers, but that has really started to bloom.”
CFA solicitor: “And what is your view of [the father]?”
Social worker: “He has only just restarted access with the girls recently, we couldn’t contact him for some time. He had one access through Zoom recently and before that he had been writing letters to them over the summer to try and rebuild his connection with him. We would like to reinstate access with him over time if we can.”
In relation to B, the social worker said that she was “very clever and bright,” and was always “joking and laughing.” She said that B was getting on great and that school was going well. She said that the girl was “watchful” of what was being said around the foster carers when she was visiting them. B was a “highly vigilant child,” but also very good at expressing herself and that it was “clear that she is happy in her placement and wants to stay there.” She said that she felt safe with her foster carers and was “worried that her mother’s former partner might re-enter the relationship with her mam and hurt her mam.”
The social worker was asked for her views on access between B and the mother. The social worker said that B had monthly access with her mother which had been going well and that the mother had a “gentle approach” with her. She said that some issues had been highlighted, mainly by the attachment expert, that B takes the lead at access which was difficult for A.
CFA solicitor: “What is your view of [the attachment expert’s] assessment that [B] is stuck in a particularly controlling strategy?”
Social worker: “I would agree with that, I think that she is very watchful and aware of what she is saying to people, it’s like she’s afraid of what her future holds and if all of this will be taken away from her. I think she’s almost in limbo, not able to fully settle in to her foster placement until she has sense of security.”
The social worker was asked to describe the concerns she had previously around the foster placement and what the position was now. The social worker said that there had been issues around the foster carers learning how to care for children with such trauma. She said that it was “quite difficult” for them, that they “would seek advice from the professionals, but were not able to integrate that into the family.” She said that the relationship was going really well now, that it was very helpful that the foster carers had the support of a link worker and that “they feel much more supported now.”
CFA solicitor: “What is your view of the children’s mother?”
Social worker: “She has made really good progress in the last year, but I still have concerns with [A] and [B] given their trauma issues and what that might mean if they are returned at this time. [The mother] is doing well in relation to her mental health and is living independently with her young son. She has made big improvements, but we need to keep in mind her anxiety which is a long running issue for her, but at the moment she is doing well and has engaged with a psychotherapist recently.”
The solicitor for the CFA asked the social worker about video footage of an incident involving the mother and her youngest child which the CFA had recently been made aware of and “was cause for concern.” The mother’s barrister interjected and said that she had not seen any video footage and asked the court to disallow questioning in this regard. The judge said that the footage should be shown to the mother’s barrister and that the point could be returned to.
CFA solicitor: “Could you outline the supports which were offered to the mother?”
Social worker: “Well we are looking at implementing the recommendations of [the attachment expert], in particular that [the mother] engage in psychotherapy. A number of other supports were also put in place for her before her children were taken into care, this was in or around 2011, but it was very difficult for her to engage at that time because of her mental health issues, but she is engaging now.”
Judge: “Well she can’t be blamed for that.”
Social worker: “No judge.”
The social worker was asked to outline the girls’ needs going forward. She said that A was “a very traumatised child” who experienced neglect and abuse previously, and that this had “a profound effect” on her. She said that her view was that A had more needs than most children of her age. She said that A also had a diagnosis of dyslexia and that her teachers had said that she needed constant support and structure in school. The social worker said that A’s needs could only be met “by sensible, predictable care” and was confident that her needs were being met by her foster carers. The social worker said that B was a very watchful child, but had become more comfortable with her foster carers over time.
CFA solicitor: “What is your assessment of [the mother’s] capacity to meet [the girls’] needs?”
Social worker: “I think she would struggle to meet those needs right now. [A and B] experienced really significant neglect in her care previously. They have started to make good connections with their foster carers and feel comfortable with them. They would be very frightened if they returned home to their mother. They really fear [the mother’s former partner]. My worry is that the mother previously denied that any violence occurred with [the mother’s former partner]. He is due out of prison in January and my worry is that [the mother] will get back with him. The girls were terrified of him.”
The social worker confirmed that it was her professional opinion that the girls needed ongoing care and that if they were returned to the care of their mother before the age of 18, they would feel “very unsettled” and life would be “very uncertain” for them.
The case was adjourned to the following day and the barrister for the mother had the opportunity to review the video footage of the incident involving the mother and her youngest child. The solicitor for the CFA asked the social worker about the incident.
CFA solicitor: “I think there was one violent incident in [early] 2020 involving the mother which was brought to your attention and you discussed it with the mother?”
Social worker: “Yes, my concern was that [the mother’s] young son was with her at the time, he was only three weeks old. My worry would be that if the girls had been there and seen such a violent incident then this would have been very negative for them, especially because they have been in care for the last three years and are doing well.”
CFA solicitor: “What did [the mother] tell you about that incident?”
Social worker: “She told me that the incident had happened because of comments that had been made to her but that had the girls been there at the time she wouldn’t have engaged in the incident.”
Judge: “Is it accepted that she partook in this incident?”
Mother’s barrister: “It is, but she was never told not to incriminate herself at that time, so I have given her that advice.”
CFA solicitor: “Is there anything else you want to add?”
Social worker: “Just that the girls are settled in their placement and if they are going to be able to rebuild any relationship with their mother then they need to be able to do that from the safety of their foster placement. We have a really secure long-term plan for the girls in place.”
The mother’s barrister cross-examined the social worker and asked her about the mother’s mental health when the children originally went into care. The social worker agreed that the children had originally been placed into voluntary care by the mother and that she was “so unwell” at that time that she was not in a position to leave her house, or engage with the CFA.
The social worker was asked about the mother’s youngest child, and agreed that while he had initially been placed on the child protection register because of the CFA’s concerns in relation to A, B and C, he had since been taken off this and had been placed on the welfare team. The social worker agreed that this was “an acknowledgment that the risk level has diminished in respect of [the youngest child].” She said that this was “fantastic” and showed the work that the mother had done.
Mother’s barrister: “And isn’t it the case that [the mother] has been seeing a psychotherapist and that there is consensus that she is engaging well?”
Social worker: “Yes, well she just started with the psychotherapist since October, we are in the very early stages.”
The barrister said that the mother “gets on very well” with the psychotherapist and had already seen the benefits of engaging with her.
The mother’s barrister told the social worker that the mother had “no intention” of re-entering the relationship with her previous partner and understood the issues this would cause. The social worker said that this was “encouraging to hear.”
The mother’s barrister asked the social worker about the mother’s relationship with C’s foster carers. The barrister said that the mother got on very well with C’s foster carers and “feels like a member of their family.” She said that the mother had a lot of respect for the work that they had put in with C, and found it difficult that the same could not be said for the relationship with A and B’s foster carers.
Mother’s barrister: “[The mother] was concerned to hear about the issues presented in relation to [the foster mother’s] use of shaming language with the girls. Can you understand why this would be a concern for her?”
Social worker: “Well I wasn’t involved at the time, but for the foster carers this was a new experience for them, it was the first time they had been foster carers, and we felt that these issues were ultimately addressed and the relationship is much better now. In the time that I have worked with the foster carers there has been no animosity towards the parents. They expressed issues at the beginning, but they got support from the CFA and they have a link worker now and [the foster mother] is also just starting her own psychotherapy. So a lot of what is raised in [the attachment expert’s] report has been addressed and things are moving in the right direction, and I do think that [the mother] will be able to get closer to the foster carers.”
Mother’s barrister: “Do you have any concerns that the foster carers are claiming the girls as their own?”
Social worker: “No, absolutely not, they just want to nurture the girls and be there for them. They are protective of the girls as they are aware of the background they came from. I really feel that what [the foster mother] wants is the same as what [the mother] wants.”
The mother’s barrister said that the mother was concerned that she was not getting enough access with the girls. She said the mother wanted to increase both the “quality and quantity” of the access. The mother’s barrister said that the mother was particularly concerned that it had been A’s birthday a number of days earlier and she “wasn’t allowed to be involved, not even on a Zoom call.” The social worker said that “it takes time to build relationships” and that she was not sure a Zoom call could have been facilitated on A’s birthday.
Mother’s barrister: “Have you spoken to [A and B’s] play therapist, will they want to speak with [the mother] and involve her?”
Social worker: “Not at the moment, and this is because of the advice from [the attachment expert], that the girls aren’t ready for this yet.”
Mother’s barrister: “But what if the play therapist advises it?”
Social worker: “It’s something we would have to give consideration to then.”
The mother’s barrister asked the social worker whether the girls had a fear of their mother, or if their fear was of the mother’s former partner. The social worker said that they feared “the environment they lived in at the time,” but agreed that she had not observed the girls in fear of their mother.
Mother’s barrister: “Subject to ongoing engagement with [the mother], are you open to increasing the access if it is in the best interests of the children?”
Social worker: “Yes, but there can’t be any shift in that at the moment, not until the girls have settled into their therapy, but I think it would be good to review access in maybe six months’ time.”
Mother’s barrister: “Do you appreciate the concerns that the mother has about the current level of access, that the girls may become estranged to her?”
Social worker: “Well I think for the girls, if access was increased now, they could become quite distressed.”
Mother’s barrister: “Would you be open to informal access, maybe the exchange of photos, using Zoom and social media platforms for example?”
Social worker: “Yes, I’m really open to working towards getting to that point, getting to a point where everyone is more relaxed and things are more natural.”
The mother’s barrister said that the mother was also concerned about the infrequency of sibling access between A, B and C. She said that A and B’s placement was some distance from C’s placement and that this appeared to be an issue. The social worker said that C’s needs were “well beyond what was normal for a child of his age” and that he needed to be risk assessed every time he got in a car. She said that the priority for C was to ensure that he had overnight contact with his foster carers with a view to taking him out of his current placement and putting him back into the care of his foster carers. She said that after this, “we will see if family reunification can take place.”
The barrister for the GAL cross-examined the social worker and said that the GAL was also concerned about sibling access and was seeking a commitment from the CFA that it would be facilitated. The GAL’s barrister said the GAL was also seeking a commitment that funding would be available if A and B required further play therapy sessions over and above what had been allocated. The social worker said that the CFA would do its best to facilitate sibling access and confirmed that funding was being sought for further therapy with the girls.
The barrister for the GAL said that an action plan had been prepared by the GAL in February 2019 and queried the progress that had been made by the CFA since that time. The social worker said that a support plan had been put in place for the foster carers which had really helped. She said that having a link worker had made “a huge difference” to the foster mother.
Barrister for the GAL: “In relation to access and family contact, there was a 12-month plan that was contemplated and it was hoped that access would progress incrementally. Did it increase?”
Social worker: “No, it hasn’t increased since that time and that was really on foot of [the attachment expert’s] report, we are still building access, we need it to be more positive for the girls and this is an ongoing process.”
GAL barrister: “[The GAL] will be recommending that the matter be listed for review in two years’ time, although she is supporting the application today, can you comment?”
Social worker: “Yes, a review would be important but I haven’t explored the time frame myself as of yet.”
Barrister: “[The GAL] is also recommending that both girls remain in their placement and for long term matching to be finalised within that placement. She is approving of the care plans in place as of October 2020, and wants mum to be supported in access and for the foster carers to continue to receive the support they are getting. She also wants a sibling access plan to be formalised, can you comment?”
Social worker: “Yes, I am in agreement with those steps.”
The CFA solicitor told the court that this was the end of the CFA’s evidence. The judge asked the parties whether it was a good time to consider if it was possible for the parties to reach some form of agreement on the length of the order and the number of reviews necessary. The judge said that he would “rather not dictate the order,” particularly in circumstances where it seemed the mother was “essentially in agreement that the care order should continue for a period of time.”
Judge: “It is about working towards family reunification and doing what is proportionate in the circumstances. I don’t think there is very much between the parties, but I think the order being sought would mean that both the girls and the mother would have to wait a very long time for the possibility of family reunification, and I have to take into consideration proportionality in this regard.”
The judge said that in his view it was better “if the parties took control of where everything is going,” rather than expecting the court to “manage everything for them.” He asked the parties to consider this and see if agreement could be reached.
The court rose for a short period of time to allow the parties to discuss the position. When the hearing resumed, the barrister for the mother told the court that she had spoken with the mother who was willing to agree to an order that A remain in the care of her foster carers until the age of 15, and that B remain in the same foster placement until the age of 14.
The solicitor for the CFA reiterated her previous instruction that a full care order to the age of 18 was being sought in respect of A and B. The solicitor said that the girls needed the “security” of their placement to the age of 18. The barrister for the GAL said that the GAL was supporting the CFA’s application. The judge said that in those circumstances the court would hear the evidence of the mother.
Mother’s evidence
Mother’s barrister: “Could you describe [A] to the court?”
Mother: “She is bubbly, loveable and a very energetic little girl with a big personality. We get on like two peas in a pod. She is quite like me when I was younger…. I think we get on really well.”
Mother’s barrister: “The social worker has said that you can get stressed at access and have difficulties with [A]. Are you happy to work around those issues?”
Mother: “Yes. 100 per cent.”
Mother’s barrister: “Can you describe [B] to the court?”
Mother: “She is very intelligent and bubbly and energetic.”
The mother’s barrister asked the mother if she was satisfied that A and B saw enough of C. The mother said that they did not. She also said that her eldest son “feels left out” and rarely saw the girls. She said that she would like for her children “to be able to see each other more.”
The mother was asked to outline her concerns in relation to school. She said that she was not worried about B, but was concerned that A was not getting enough support for her dyslexia in school.
Mother’s barrister: “Have you met with their [A and B’s] teachers?”
Mother: “No, I presume I am not allowed.”
Judge: “I’m sure this isn’t the case.”
Mother’s barrister: “Are you kept up to date about their [A and B’s] day-to-day lives and needs?”
Mother: “No, I only hear things when I’m at access.”
Mother’s barrister: “Are you involved in their special occasions?”
Mother: “No.”
Mother’s barrister: “I think it was [A’s] birthday a few days ago, did you ask to be involved in this?”
Mother: “Yes, I wanted to do a Zoom call but I wasn’t allowed.”
The mother was asked about access and what she wanted to see happening. She said that she wanted more than one access per month and wanted more involvement in the girls’ lives. When asked about her relationship with the girls’ social worker, she said that it was good, but that she could not say the same for her relationship with the foster carers.
She said that it was different to the relationship she had with C’s foster carers. She said that C’s foster carers treated her “as part of the family,” but that things were much more “structured” with A and B’s foster carers. She said that she hoped the relationship with the foster carers would improve and said she was happy to be more involved with the foster mother if this would help things.
The mother’s barrister asked the mother to outline her previous struggles with her mental health and the work she had done to tackle those issues.
Mother: “I was struggling with my mental health and I knew my kids were suffering and that I was choosing bad relationships. I was in an awful position and that’s why I put them in voluntary care.”
Mother’s barrister: “How did you come out of that?”
Mother: “I engaged with [a drug and alcohol addiction service], and I went to a psychologist there regularly and was treated for anxiety and depression… I am on medication now and it’s helped a lot.”
Mother’s barrister: “How long were you confined to your home when you were ill?”
Mother: “14 months.”
Mother’s barrister: “Can you tell the court about when you started to improve?”
Mother: “I started engaging about 13 months ago when I finished with [the drug and alcohol addiction service] and my medications started to work, and I got a home which was about 10 months ago now.”
The mother accepted that at the time when the girls went into care, she had “little insight” into their needs and accepted that they had been neglected. When asked about her relationship with her former partner, she said that she had “no intention” of getting back with him and understood the damage caused to the girls when she was with him. She said that she really wanted to work towards family reunification and was willing to put in any work required of her.
She said she hoped the CFA would allow her to have a conversation with the girls “around what happened in the past.” She said that she was doing very well now and was engaging in a number of support services and was also in contact with her general practitioner regularly. She said that her mother was her biggest support in her life.
Mother’s barrister: “What does your mother say about your choice of men in the past?”
Mother: “She thinks that I was choosing that type of man because my father was similar. She didn’t like any of them. I’ve learnt that I’m trying to substitute these men for my father. I’m engaging with a psychotherapist about this now and I see her once a week. I get on really well with her and it’s going well.”
The mother told her barrister that she had been well now for over a year and was able to accept that there was more work to do to build on her relationship with A and B. She said that she wanted to avail of “every service” offered to her and wanted “to work to get access every fortnight and then eventually every week.” She said that she wanted her children to be able to see each other more regularly too. She said that she wanted a mix of physical access and to be able to use Zoom for calls with the girls. She said that she wanted to be able to send pictures and photos to the girls and receive photos from them, “so that I can be kept up to date and feel included.”
Mother’s barrister: “Why do you think 15 and 16 would be an appropriate age to have the care order run to?”
Mother: “I think they will be able to make decisions for themselves at that age and understand things a bit better then.”
Mother’s barrister: “Are you satisfied that you are sufficiently involved in their lives at the moment?”
Mother: “No.”
Mother’s barrister: “Are you satisfied that your access is sufficient?”
Mother: “No.”
The mother told her barrister that when her youngest child was born the CFA put in place a structured plan that she was able to follow, but that she had not been given a similar plan for A and B.
The mother was cross-examined by the CFA solicitor who said that detailed care plans had been prepared by the CFA for the mother in April 2018 and again in January 2019. The mother agreed that this was the case but said that when the first plan was put in place she was not in a position to take up the recommendations because of her mental health and homelessness. The CFA solicitor said that the second care plan set out a number of supports, assessments, and access arrangements for the mother and her girls, and the mother agreed that this was the case.
CFA solicitor: “Do you agree that the girls need clarity as to where they will be over the next number of years?”
Mother: “Yes, and I can do that, I just want involvement with them, I don’t want to feel left out.”
CFA solicitor: “So you want them to stay where they are?”
Mother: “Yes, for the moment, but I want the opportunity to speak with the girls and explain why they went into care in the first place and I want to tell them how long they will be there, but I haven’t been given that opportunity.”
CFA solicitor: “Do you understand that [the attachment expert] has said that you can’t do that right now because therapy for the girls is the primary focus at the moment?”
Mother: “Yes, but I still feel excluded from their lives, I want them to know who I am… they have a great relationship with my mam and my sister, but they haven’t seen my sister since they went into care.”
The mother accepted that there had been issues with access, but said she was “willing to work on that.” She accepted that the girls had a “traumatic past” and needed ongoing care and that this had to “move at the children’s pace.” The mother said that she was unhappy with the length of time it had taken for the girls to start therapy and wanted to support them whatever way she could in the therapy now that it was taking place. The CFA solicitor said that there had been delays because of Covid-19.
The mother was asked about the incident involving her youngest son and was reminded by her barrister that she had a right not to incriminate herself. The mother accepted that an incident had taken place during which her youngest son was present.
The barrister for the GAL did not ask the mother any questions.
The judge suggested that it would be beneficial if the social worker was recalled to discuss the delays around obtaining therapy for A and B and the progression of the recommendations made in the care plan from January 2019.
CFA solicitor: “Why did matters not progress… Why were there delays?”
Social worker: “[The attachment expert’s] assessment guided us, and there were delays in the timing of the play therapy and [the mother’s] psychotherapy due to Covid-19. There was also an issue finding the right person with the right qualifications to provide the play therapy to the girls. We needed to source an expert who was close to [the foster carers home].”
CFA solicitor: “Is there anything else you would like to add?”
Social worker: “Just in relation to the 2019 plan and the recommendation that access would increase. The quantity of access was contingent on the relationship between the mother and the girls and we haven’t been able to progress the access yet because the quality of the relationship between the girls and mam isn’t there yet.”
Judge: “I note that there is a good relationship with you and [the mother] but would you understand that because of the circumstances surrounding everything, including Covid-19, and the delays in therapy, could you understand that [the mother] could feel somewhat excluded?”
Social worker: “I feel we’re in the process of re-building that contact she missed now.”
Judge: “If therapy goes well with the girls and [the mother’s] therapy goes well, where would you see the relationship going?”
Social worker: “I think the mother will be able to see the girls so much more if that happens and I think we will be able to work towards unsupervised contact with [the mother] and the girls and she will have longer periods of time with the girls.”
Judge: “What is your view on the girls’ attachment to the foster carers? Could you see a situation where the mother could have an excellent relationship with the girls and the foster carers and the girls could have an excellent relationship with the mother?”
Social worker: “Yes, that’s the goal. I think if they have the security of knowing they are safe where they are, then they will feel more confident in building those connections with [the mother].”
The court heard the evidence of the GAL next. The GAL confirmed that she had prepared a report for both A and B and was asked by her barrister to give an overview of A. The GAL said that A was “bubbly and engaging” and generally “full of chat.” She said that A liked to dress the same as her sister and that they both played various sports.
She said that A required a lot of support in school because of her dyslexia, but said that she was getting the educational support she needed. She said that A had “displayed a lot of trauma in her placement,” but that “it’s good that she feels comfortable to do that.”
In relation to B, the GAL said: “[B] was quite good coming into care, she is good with her school work and is very chatty and bubbly. I think perhaps [B] wasn’t exposed to the same amount of chaos that [A] was as she is the younger child, but she is more cautious about displaying negative feelings.”
The GAL confirmed that she had been appointed by the court two years previously and was asked to give an account of what she was presented with when she first met A and B. She said that on her initial visit she was worried by the fact that the girls could not seem to “connect” with her, “they kept running to their foster carers.” She said that soon after this, A started to have very challenging behaviours. She said there were “tears and tantrums,” but that in her view this was a “good thing,” and was to be expected. She said that this had yet to happen for B, but expected that it would.
GAL’s barrister: “Did the girls give an account of their memory of living in the family home when you came on board?”
GAL: “Yes, they told me about how life was really scary with [the mother’s former partner]. They were displaying huge fear of teenage boys with caps and tracksuits whenever they were out with the foster carers. They never articulated anything really difficult in relation to mum, but it’s all been about her choice of partner and how scary that was for them.”
The GAL said that it was the mother who had initially come forward seeking voluntary care for the girls because she was suffering very badly with her mental health. She said that when the girls were in voluntary care, the mother went to all of the accesses, but the problem was that her partner was also there and that this was “not safe or appropriate.”
Judge: “How was [the mother’s] mental health at that time?”
GAL: “Well, when I met her first she was at rock bottom and there was no interim care order in place at that time. Her mental health was very poor, she was a different person then.”
GAL’s barrister: “Can you comment on how [the mother] has evolved?”
GAL: “At first she was hesitant with me, but then she invited me to her house where she was living with her mother. They were both open with me about the hardships [the mother] had gone through with homelessness… [The mother] was shaking when I met her, she was very pale, very thin, she was extremely anxious and fragile back then. [About five months later] she had started to pick herself up and make a recovery. She was in court in January 2019 for the full care hearing. We wanted to look at supports for her… There was a court review that summer in July 2019 and I think she may have been pregnant at that time. She was presenting as quite well and was continuing to make progress… Access was extended to one hour and a half per month.”
The GAL was asked to comment on the positive features of the mother’s parenting that the GAL had observed. The GAL said that the mother “was always a pleasure to work with” and listened to the professional concerns which were being put to her. She said that this was something that a lot of parents could find difficult, but that the mother was “always very respectful.” She said that the mother had also “thanked the foster carers for being so present in the girls lives.”
She said that it was very apparent that the mother wanted more involvement in A and B’s lives. She said that the mother was “very gentle” with the girls and that things were moving forward positively.
GAL’s barrister: “Can you comment on the girls’ attachment to their foster carers and whether this precludes attachment to others?”
GAL: “They can have multiple attachment figures and in time I would hope that [the mother] can be an attachment figure, but she can’t provide that right now. Through repeated positive access in time the girls will get the message that they are safe.”
GAL’s barrister: “Can you give a picture of life for the girls in their foster placement?”
GAL: “The foster carers don’t have kids of their own and this is important for the girls’ needs… the foster carers turned their lives around for the girls but they needed huge support around the behaviours of the girls at the beginning. They had never experienced this before. They were seeing sexualised behaviours, [A] was playing out behaviours with her dolls and [the foster mother] was telling her not to do it, that it was dirty and bold, so we needed to get them extra supports and I was re-engaged then, and so was [the attachment expert]. I know there was also an issue with the link worker in that they weren’t originally allocated one, but they have one now and it’s been hugely beneficial.”
The GAL was asked about the “distance” between the mother and the foster carers and said that she wanted to have a meeting with the mother, the foster carers and the fostering agency as soon as possible. She said that early in the year there had been a discussion around obtaining respite for the foster carers “because of the intensity of what was going on with A.” She said that there had been a concern that the foster placement might break down and that she was re-engaged at that point, but that those concerns had been addressed when the link worker was assigned to the foster carers.
GAL’s barrister: “How do you see the hypothetical pathway of access?”
GAL: “I would like to see access increased with the full care order. I think it could improve with that certainty. I think it will help [the mother] and her anxiety levels. I think [the mother] is a lot better at the moment, but I would recommend that the access continues to be child-led. I think access needs to become more positive… outdoor access would improve matters, they need these nice family moments, but it must be built on gradually.”
The GAL confirmed that it was important that sibling access be facilitated and said that she would also like to see the girls’ grandmother being included eventually, but that it should be “kept simple for now.” She said that the father had Zoom access with the girls recently which was “quite positive.”
The GAL confirmed that she was supporting the CFA’s application for care orders to the age of 18 in respect of both A and B.
GAL’s barrister: “Can you comment on the views and wishes of the girls?”
GAL: “A consistent view and wish of [A] when I have seen her is that she loves her placement and doesn’t want to go back home. She is very happy every time I call around to the house and she always insists on showing me her room. The girls call [the foster father] ‘Daddy.’
“[B] has always been very vocal about wanting to have contact with her mother. I think she is much more able for this contact. [A] wants a positive relationship with her mother but needs a lot of support for this. They just want to stay where they are. Since the last care order was granted they were feeling more secure than they had been and I feel that they are so much more settled in their current lives now.”
The GAL said that if a lesser order was to be made by the court, this would have a “huge impact” and would lead to “major distress” in the girls lives. The GAL said that A and B needed a sense of security, which needed to be a more permanent feature of their lives. She said that without that permanence, they would not have the stability they required. She said that if the girls were to be returned to the care of their mother in their mid-teens, this could be “very damaging and confusing for them, especially as teenagers.”
The mother’s barrister cross-examined the GAL and asked a number of questions about the access arrangement currently in place.
Mother’s barrister: “Are they seeing enough of [the youngest child]?”
GAL: “No, that will need to be built up in a safe way.”
The GAL said that it was unfortunate that sibling access had been interrupted by Covid-19 and hoped that it would start back up soon.
Mother’s barrister: “[The mother] is concerned that the girls might think that she wants [the youngest child] but not them, what is your view on that?”
GAL: “I think they will need support with these issues their entire life, there needs to be open dialogue in a simple child-centred way and all the parties need support in this.”
The mother’s barrister suggested that a lot of planning had been done when the GAL was appointed, but that very little progress had been made when the GAL was not involved. The GAL said that there was a roadmap in place and she was confident that “things will start to happen.”
Mother’s barrister: “[The mother] would be very anxious that the girls understand that she is doing everything she can for them and that she loves them as much as the rest of her children. What do you say to that?”
GAL: “Yes, that’s very important and it’s very commendable for the mother to say those things.”
Mother’s barrister: “When the girls’ placement wasn’t stable, when [the foster mother] wasn’t coping so well, was that affecting the children?”
GAL: “There was a lot of stuff coming up for the girls at that time and I was concerned that some of the comments made by [the foster mother], like the house being messy, I suppose I was concerned that this was supressing their needs somewhat, but we did a lot of work with [the foster mother] and got her support, which really helped.”
Mother’s barrister: “But do you think it affected the children?”
GAL: “Of course it affected the children.”
When asked whether she saw potential in the mother, the GAL said that she could see the mother being a positive influence in A and B’s lives. She said this was because of her personality and “her ability to work with professionals, which doesn’t always happen.”
Mother’s barrister: “Am I to take it that you are confident that a full care order is needed despite the huge progress [the mother] has made… that exceptional circumstances arise warranting such a serious order?”
GAL: “Yes, they have lived with huge amounts of trauma, their future needs to be very predictable.”
Mother’s barrister: “But isn’t it the case that not all placements are permanent and sometimes they come to an end, so there is no guarantee that this placement will continue and that there won’t be further crises?”
GAL: “I think there are a lot of issues to overcome, but I feel very confident that they [the foster carers] have demonstrated their commitment to the girls, they have gone to the moon and back for them.”
The mother’s barrister said that the most important thing for the children was to have a message from their mother that she was not taking them anywhere and that they were secure in their placement. She said that the mother had no intention of removing them from their foster placement while they were doing so well. She said that the order being sought by the CFA was not necessary in those circumstances.
The solicitor for the CFA asked the GAL what the impact had been for the girls when the last court order was made. The GAL said they were “delighted to have that bit of permanency in their lives,” but were still wondering what was going to happen next. She said that it was clear that they were worried about their future.
CFA solicitor: “If care orders were granted to the girls’ mid-teens, which is what the mother wants, what would be you view on the girls going home in their teenage years?”
GAL: “I feel it would seriously affect their ability to feel that sense of permanency that they need. In their teenage years they will need clear boundaries around their lives and where they are living… Teenage years can be difficult as it is.”
Judge: “How happy are the girls in care?”
GAL: “Very happy, they are expressive about how good their lives are now so they are very happy, Judge.”
Judge: “If the mother continues to make good progress, do you think that the girls can be taught to appreciate the strides that she has made?”
GAL: “Yes, I think it would be an important dialogue to include between the CFA and the children and I think [the mother] should be involved in that too.”
Judge: “Will anyone train the foster carers that they need to be more than neutral about [the mother], that they need to foster good relations with [the mother] and perhaps show admiration for how [the mother] has got through such difficult issues?”
GAL: “I would love to be part of that, Judge, if we all come together and provide encouragement and support to the foster carers and to the mother then this will alleviate a lot of the issues I think.”
Judge: “You said that the link worker is encouraging access, do you get that impression from the social work department?”
GAL: “I think everyone is very cautious of [A’s] needs at the moment, but I do believe everyone is open to progressing access.”
This was the end of the evidence and the barrister for the mother made submissions in respect of the duration of the care order sought. She said that she had major concerns that the CFA had given “undue weight” to the attachment expert’s report which was now nine months old. She said that she was also concerned that neither the court nor the mother had been given the opportunity to view the video recordings made by the attachment expert in support of her assessments in respect of A and B.
The barrister referred to the UK case of Ikranian Reefer 1995, which set out the principles to apply in relation to the duties of expert witnesses. She said that the Reefer case confirmed that where expert evidence refers to photographs, plans, or in this case, “videos,” they must be provided to the opposite party at the same time as the exchange of the reports. She said that the principles set out in the Reefer case were adopted and applied by the Irish Supreme Court in the case of O’Leary v Mercy University Hospital Cork 2019. She said that the mother was “surprised and disappointed” that she did not have the benefit of seeing the videos which were relied on by the CFA in support of its case. The mother’s barrister said that there were also questions over the attachment expert’s independence in the process, as well as the “theories” relied on by her in her assessments, which she reiterated were not “science-based.”
The mother’s barrister went on to highlight concerns that access had been curtailed by virtue of the attachment expert’s report and that there was a February 2019 plan put in place which allowed for an incremental increase in access, and this had yet to take place. She highlighted further concerns that the February 2019 plan recommended an independent parental capacity assessment, but this had also not occurred and that it was “very unusual” that a full care order was being sought without an independent report.
The mother’s barrister said that there had also been delays in the girls receiving play therapy, which she said was “put off because of the instability in the placement and by no fault of the mother.” She said the mother was concerned that a link worker was only assigned to the foster mother recently and that none of these delays and omissions “lie at the door of [the mother].” She said that the right of the girls and their mother to family reunification had been severely impacted by the delays.
The mother’s barrister said that where the court was satisfied that the threshold had been met, the court was then required to consider whether it would be “proportionate in all the circumstances” to make the order sought. She said that there should not be “a presumption in favour of the making of a care order” and that the measures taken must be “proportionate to the risk.” She said that family ties should only be severed in very exceptional circumstances and that it was generally in the best interests of children that they reside with their natural family. The barrister cited a number of Irish cases, as well as case law from the European Court of Human Rights in support of her application for a shorter care order in respect of A and B.
The barrister said that there was “constant reference” to the importance of the “permanency of the foster care arrangement” as being in the best interest of the girls, but that this was simply the CFA using a “trump card.” She said she was asking the court “not to be taken in by this.” She said that the mother had made “massive strides,” and it was her view that family reunification should be offered to the girls earlier than 18.
The CFA solicitor made submissions in response. She addressed the point made by the mother’s barrister in relation to expert evidence and the issue of the video footage. She said that the O’Leary case was “not relevant” to this case and that it was important to note that “there is no case law which states that this should be applied in a child care case.” She said that materials had been handed over by the attachment expert and there was nothing to suggest she was in any way biased. She noted that “no evidence” had been put forward to refute the evidence of the attachment expert. She said that the mother’s evidence had centred around the lack of support she felt that was in place and issues with access. She said that an independent parental capacity assessment was not necessary or required for the mother.
The CFA solicitor said that the threshold had been met and that full care orders were proportionate in the circumstances. Evidence had been provided by three professional witnesses and the court had heard about “the impact of the trauma experienced by the children,” and that it was in the best interest of the children to continue to develop and progress in care.
She said that the mother’s own evidence was that she wanted more involvement with the children and more access, “but she never spoke about her wishes for family reunification in the future.” She said that there was no good reason to depart from the intended duration of the order, and that “sometimes the best interests of the children are that they continue in care.” She said that the mother had acknowledged that she was unable to care for her children “and will be unable for six years.” She said that it was “always open” to the mother to make a fresh application in due course if her circumstances changed.
The barrister for the GAL made submissions on behalf of the GAL and referred to a number of Irish cases, as well as case law from the European Court of Human Rights, in support of the application for full care orders. He said that “welfare must always be the primary concern for the court,” and that it was important that everything possible was done “to preserve personal relations with the parents.” He said that family ties would not be severed in this case if a full care order was made in the terms sought by the CFA and that this was “not the goal” of the GAL.
He noted that reunification was trialled in April 2018 and a care order was subsequently granted for 18 months in February 2019. He said that the delays which had been highlighted by the mother’s barrister were “not the fault of the mother” and that this had been made clear by the GAL. He said that there was a “positive disposition” by the CFA that access would increase on an incremental basis.
He said that therapeutic supports were ongoing and the evidence had been that it would take time to show the benefits of this. He said that the court had to consider “the commitments to the children by the foster carers” and the commitments of the CFA to provide ongoing support for the mother. He said that the GAL was of the opinion that the orders sought would be proportionate in the circumstances.
Having heard the submissions, the judge said that he was not going to give his decision until the following Monday, but said that the court was “very impressed with the mother’s progress.” The judge extended the care orders for A and B to the following Monday, noting that they were due to expire.
When the matter came back before the court, the judge set out the material facts and noted that it had been “accepted” by all parties that A and B had been neglected and had suffered impairment. He said that they had “witnessed domestic violence,” as well as “alcohol and substance abuse.” He said the issues had been “exacerbated by mother’s mental health concerns, which I stress, are not her fault, as well as poorly chosen partners, and neglect on the part of [A and B’s] father.”
The judge said that the mother was consenting to care orders for A and B, but did not consider that the orders were necessary to the age of 18. The judge noted that the father had “abandoned the hearing at 1pm on [the first day] and took no further part in the proceedings.”
He said it was clear from the evidence of the attachment expert, that A had suffered “great trauma” and that although she was seeking attachment, she also wanted a relationship with her mother. He said it was clear that B also suffered trauma and “is holding herself back somewhat due to lack of trust in allowing herself to be vulnerable and in trusting her care givers.”
The judge said that “there are some questions as to the adequacy of the foster carers and their ability to deal with the situation which they were presented with,” but noted that supports had been put in place for them and that these supports were ongoing and were subject to the review of the CFA and the court. He said that the CFA had done “great work” with the children and the mother.
The judge recounted the evidence of the social worker who described the trauma suffered by the children and “their terror of the mother’s previous partner.” He said that the mother gave evidence that she wanted nothing to do with him when he was out of prison, but that the CFA were concerned by the fact that he was the father of the mother’s youngest child and so will very likely have involvement in the mother’s life in the future.
He said that it was “extremely positive” to hear that the mother was engaging with a variety of supports and that the youngest child had been removed from the CFA’s care because of the progress which had been made by the mother.
The judge said that the GAL was supporting the CFA’s application, but agreed that the foster carers “need more support.” He said that the GAL was of the view that care orders to 14 and 15 in respect of A and B would “destabilise the children.” The judge noted that “the girls’ own wishes must have a significant impact on the orders,” but was conscious that the mother said that she felt “excluded in the girls’ lives.”
The judge went on to consider the law and said that “where the threshold has been reached, the court must consider proportionality.” He said that the court had heard legal submissions on the relevant jurisprudence and that the court had been referred to a number of helpful cases. He said that a European Court of Human Rights decision had determined that “the taking of children into care should be regarded as a temporary measure only and the order should stop when it was no longer necessary.” The judge said that he was required to take into consideration Article 42.A of the constitution, which “enhances the right of the child to the enjoyment of family life.” He said that “proportionality must govern every decision at every stage of the process, including this part of the process.” The aim was to keep families together, but that in some cases there was a requirement to balance and weigh competing factors, which meant potentially curtailing family life. He said that the rights of the parents are “not terminated” on the making of a care order.
The judge said that he was taking into account the totality of the evidence heard, and the wishes of the children.
Judge: “In an effort to acknowledge the overall balance between the rights of the children and the rights of the parents, my view is that the care orders should remain in place until [B’s] 16th birthday….which is when [A] will be 17… The court will order reviews and it is to be noted that it can extend the orders to 18 if necessary. The court is limiting the duration of the court orders, but only to this extent….
“I have heard compelling evidence that the mother has improved her situation and her mental health and that she has developed insight into her needs and her children’s needs… I have heard evidence that she has prioritised the care of her youngest child to the extent that the CFA does not need to intervene. [A and B] have expressed the wish to live with their foster carers and not return home. The court believes that the limit on the duration of the order will give the mother hope and encouragement that the relationship can develop and will assist in the fostering of good relations.
“The court has no doubt that when the matter comes back for review, it can extend the orders if necessary and the duration of the orders running together will keep [A and B] together for the said duration and the children will be in the primary care of the foster carers who have been heroic in their care. I do note that progress between the foster carers and the mother has not been prioritised as of yet.
“It would not be proper for me to make the order without also necessitating reviews, so in accordance with the suggestion of the GAL, the court orders a review on [date] 2022, the purpose of which is to establish whether the orders are still necessary and proportionate, and to hear of [A and B’s] welfare and their wishes, and to hear of any further progress in relation to long-term matching, and how the mother and the children are engaging with supports, and how access is progressing.”
The judge made two orders in relation to access for A and B under section 37 of the Act and directed that the previous access arrangement continue up to the [date] 2022. He said that the court at review stage, “should hear that the access had progressed both in quality and quantity and that the mother was being supported as much as possible.” He said that “the children should also engage in regular sibling access and the CFA must commit to provide play therapy for [A and B] for at least two years.”
The court made an additional order that the CFA source and fund occupational therapy for A. The judge thanked the CFA, “who have made sterling efforts with the parties,” and said that he also wished to give “great credit to the mother, and how she has conducted herself in these proceedings and the progress she has made.” The judge ordered that the GAL be discharged in December 2020.
