See also Vol 1 of 2020: Care orders sought for three youngest children in large family on grounds of sex abuse, neglect
The District Court granted full care orders until they were 18 for the three youngest children of a large family on the grounds of chronic neglect and sexual abuse. The case had begun in January 2020 and had taken place over 19 days, with a number of adjournments due to Covid-19 restrictions, including a suspension of five months in July. The case concerned Children A, B and C.
References are made in this report to their older sibling F, now an adult, who made allegations of sexual abuse against the father and also to a telephone call between F, her father, mother and sibling which was submitted as evidence to the court by the father at an earlier hearing.
When the case resumed in November there was an application to admit hearsay statements made by one of the children. The barrister for the CFA told the court that the statements had been set out in a schedule, which was read out by the allocated social worker who had already given evidence. The social worker identified statements that were “specific quotes” from the children.
The statements were made during a home visit and in the context of describing arguments and shouting C had witnessed in the home he had said that “my legs were shaking”. The CFA barrister asked the social worker what the child’s demeanour was when he said that. The social worker said that he was “matter of fact that it happened”.
The social worker said that C had said that there were “‘good things at home and sometimes bad’”. The child had also said that he wanted “a different bedroom, different wallpaper and a new bed as I don’t like sharing”. The social worker said that she had asked C what he had wanted different and had said “‘a new mam and dad’” and was “very matter of fact”. During a school visit the social worker had asked him why the father had left the house and C had said “because [F] was lying”.
Social worker: “[Question] Did you worry about telling me things in case you get in trouble? [Answer] ‘Yes’. [Question] Who do you get in trouble with. [Answer] ‘Mum and Dad’.”
The social worker described C’s demeanour as “okay but then he started to get physically upset and shifting in his chair and turning his body away”.
The mother’s barrister asked the social worker a number of questions in respect of the statements of C that were read out to the court and that were the subject of the section 23 application.
Mother’s barrister: “The first two home visits you spoke generally about arguments and asked them about arguments at home?”
Social worker: “I don’t remember the exact context to the visits. The family had been open with me that there were arguments in the house and I wanted to ask the children about the arguments.”
The barrister referred to the school when the social worker had asked information about arguments and B and C had each referred to two of the older brothers shouting.
Mother’s barrister: “All three of the older siblings are no longer living in the home?”
Social worker: “No, they don’t live in the home.”
The barrister put to the social worker that what C had said about what he would like to change in the house such as the new bedroom and new bed was “a standard request from a child”.
Social worker: “He was very aware his home environment was not adequate, such as furniture and the walls, something I would not think a child of his age would pick up on.”
The social worker agreed with the barrister that C did get a new bed.
Mother’s barrister: “He also wants a mansion, some requests of a child are not realistic…. He said he wanted a new mam and dad but isn’t it also the case that he has said he wants to go home to his mam and dad and misses mam and dad?”
Social worker: “Yes he did.”
The social worker was asked whether many of the statements were obtained as a result of leading questions from the social worker. The social worker said that she was not sure of the sequence that it happened but she accepted that it was a leading question and was “not the recommended way to go around conversation”.
The court was informed that was all of the evidence in the CFA’s case.
Older son’s evidence
The father called one of the older sons to give evidence on his behalf. The young man gave evidence that there was some trouble at the start with keeping the house clean but that it had got better. He described various chores in the house.
Father’s barrister: “There was a problem in the past with head lice amongst the younger children?”
Witness: “To be honest I don’t know much about that.”
The barrister for the father asked the young man about the allegations that had been made by F against the father.
Father’s barrister: “She said the sexual abuse occurred on a Friday night in the house. Would you have been in the house on Friday nights?”
Witness: “Yes.”
The witness said that his mother went out on a Friday night and that the house was calm and quiet and he would have been watching TV or playing games.
Father’s barrister: “Did [F] ever tell you that your Dad sexually assaulted her?”
Witness: “No.”
The barrister asked him about an incident where C had ingested an amphetamine. The witness said that he was playing the Playstation with C sitting beside him and “one of them must have fallen out of my pocket”. The witness said that he saw C with blue bits in his mouth and that he rang the ambulance straight away. The witness told the court that he no longer used drugs in the home at all and did not sell drugs but that he smoked some weed. The barrister asked the witness about the photograph of the bed and a plastic bag with a cannabis herb in it. The witness said that it could have easily fallen out of his pocket.
The barrister asked the witness about the sleeping arrangements in the house and he said that he had never shared a bed with his brothers or sisters. The witness was asked to describe the relationship between his younger siblings and their parents and he said that he had never seen a problem and had never had any concern for the safety of his younger siblings.
When asked by the CFA barrister the witness said that he did not recall any head lice issues but recalled silverfish in the house and said they were “coming out of mad places we didn’t know where.”
The barrister for the CFA put to the witness that the public health nurse gave evidence of ongoing head lice and had described the hygiene in the house as “appalling”.
Witness: “At the time maybe it was, yeah.”
CFA barrister: “…if there were improvements they were never sustained?”
Witness: “There was some improvements but it sometimes went back.”
The barrister for the GAL asked the witness about a previous incident where there was a threat that the house would be fire bombed unless a debt was paid and another incident where the witness had been attacked outside the house for money owed.
The witnessed denied that when his girlfriend stayed overnight she was staying in a room shared with the younger children. The witness said that it was just the two of them in the room.
GAL’s barrister: “The social workers for the best part of a year had a concern you were sharing a bed with the younger children. Was that entirely wrong that concern?”
Witness: “That’s right… They never said to me they had a concern that I was staying in a bed with the kids.”
The judge asked the witness at what age he had left school and about when he had started using drugs. The judge also asked how often his girlfriend had come over. The witness said that the girlfriend had come over nearly every day and had stayed in the house maybe twice or three times per week. The witness said that everyone was living in a three-bedroom house at the time. The witness said that he would not know what everyone in the house was doing at any one time.
The judge asked the witness whether he had an ongoing relationship with his sister F. He said that because of the allegations he was finished with her and had stopped talking to her. The witness said that he did not remember the recorded phone call when he was asked.
Older daughter’s evidence
An older daughter was also called by the father to give evidence on his behalf. The young woman was asked about the cleanliness of the house when the younger children were living there and she said that “it was a little messy but a lot better”. The witness said that the highest number of people who had lived in the three-bedroom house at the same time was eight.
The witness was asked if she recalled the problem with the children getting head lice in 2016 and 2017.
Witness: “All kids get head lice through school. It is normal and part of growing up. It was now and again but mum got rid of them very quickly.”
The witness said that she had shared a room with F and that she was like her shadow and went everywhere with her. She said that she was always in the house on a Friday. The witness said that she did not ever remember F being in the bedroom by herself with the father.
The witness said that she did not recall an incident in 2017 when a fight broke out in the home between her and F. The witness said that would not be normal behaviour in the house especially with the kids there. She described the relationship between her parents and younger siblings as calm and that they were always playing with the kids and said it was “always normal and nothing out of the ordinary”. She had never been concerned for the safety of the younger children with her parents. The witness accepted that she had an interest in the court’s findings and an interest to give evidence to support her father’s innocence and whether she could move back into the home.
The young woman described her relationship with F as “perfectly grand before she made all this up” and said that she no longer had any relationship with her sister. The CFA solicitor asked her about her involvement in the audio recorded phone call and she said that she remembered it. The witness said that the purpose of the phone call was to get F to say something and “come out with the truth”.
CFA barrister: “Was the conversation recorded?”
Witness: “I think so.”
CFA barrister: “Was she told in advance?”
Witness: “I think so.”
CFA barrister: “It was played in court and she was told half way through it was recorded?”
Witness: “Still told.”
CFA barrister: “Four members of the family ganged up on her”
Witness: “To try get her to say the truth.”
The barrister for the GAL asked the witness whether the house was crowded with three bedrooms and about the sleeping arrangement. The witness said that her brother, one of the older siblings, had shared a room with A and C. The barrister for the GAL asked the witness if it would surprise her that her brother had given evidence that he had his own room.
GAL’s barrister: “The creche reported that [Child B] had dirty clothing and smelled of urine?”
Witness: “She never smelled and was always washed for school.”
GAL’s barrister: “Nappies wet?”
Witness: “No, she was perfect.”
The young woman denied the incident reported by F in respect of an argument in the house where the witness had punched her father in the face. She said that was false and that none of what was described had happened and there was no violence in the house.
The witness was asked why she did not attend the assessment of the parents when the assessor had wanted to speak with her and the said: “I was busy… something important and I couldn’t come or didn’t know where I was going”. The witness accepted that the assessment was important for her siblings’ future.
The barrister for the GAL went through the transcript of the recording of the telephone conversation.
GAL’s barrister: “Would you accept that again and again [F] was told to tell the truth in the recording? Would you accept she was told she couldn’t go home until she told social workers and gardaí it wasn’t true?”
Witness: “I don’t know. Either way the fact is she came out with this and she should fix it as it is not true.”
GAL’s barrister: “How are you so certain it is not true?”
Witness: “She was constantly around me. My shadow.”
GAL’s barrister: “Nobody is 100 per cent of the time with someone else.”
Witness: “Well she was.”
GAL’s barrister: “You tried to take advantage of your younger sister at a moment of vulnerability to get her to retract?”
Witness: “I didn’t take advantage of nobody.”
Father’s evidence
The father then gave evidence to the court. His barrister asked him about the cognitive assessment carried out by the psychologist, which the father disputed. The father told the court that he had arrived in late from work and got caught in heavy traffic that made him late for the appointment. The father said that the report that he had only three friends growing up and no friends anymore was not accurate. He said that it was not correct that he had no hobbies as he had said that he like trains. The father denied that he had informed the psychologist that he was easily distracted by noise and was frustrated by labels on clothing and he said that he did not remember a conversation about noises or labels.
Father’s barrister: “At one point during the assessment there was a noise in the hallway and you shouted at [the mother] for silence?”
Father: “I don’t remember shouting at [the mother] at all. I told [the mother], I was not shouting. I explained to her that I couldn’t hear the questions asked. [The mother] was in the sitting room watching tv and I was in the kitchen. The rooms are next door to each other.”
The father did not accept what was reported by the psychologist that there was no evidence of warmth with his interaction with the children, “of course not, I love all the kids”. The father described his recollection of the structure that the assessment took and the order of interviews. The father did not agree with the evidence that some of the scores in the cognitive test demonstrated that he possibly had high functioning autism.
Father: “She said Asperger’s and I looked it up to see: loud noise, noise doesn’t bother me, disco lights also doesn’t bother me.”
The father said that he was not controlling and described himself as easy-going and that the mother was “the boss of the house”.
In respect of the evidence by the assessor that the father put money aside each week without telling the mother, the father said that it was for emergency funds “in case anything happened, to pay for doctor or whatever” and he said that he told the assessor it was an emergency fund and the mother would have known about it. In discussing his relationship with the mother the barrister asked the father about his description of the mother as “being like a nun”. The father said he was only joking and that he had a great sense of humour and made jokes to try and calm things down. The father denied the concerns about paranoia and jealousy in the relationship and he said that he had always trusted the mother.
The barrister asked the father about the various assessments with the three children that were recorded and how he had felt during the assessments. The father said that he was “very uncomfortable” and had been told to be careful of the position he got into until the end of the court case so “I didn’t know what to do”. The barrister asked the father about the comments that he had seemed uncomfortable during tasks involving close contact and touch.
Father’s barrister: “When watching the video interaction, some of the games played with B were more appropriate for a younger age.?”
Father: “I was afraid to brush her hair or be in near distance to the kids”.
The father was asked about the comment that C presented with global developmental delay and the father said: “I would say he was delayed”. The barrister put to the father that the suggested reason for the delay was chronic neglect in care.
Father: “Chronic, I would say no to that. When I finished work I played with him.”
Judge: “What do you say about neglect?”
Father: “At times I did neglect him where I went straight to bed after work.”
The father was asked about the changes if any that had occurred and he said that he had cut his work hours back to have more time to come home and play with the kids. The father was asked about the evidence of the public health nurse concerning the condition of the home and the description of the lack of cleanliness or hygiene. The father told the court that he would agree with her description.
The father said that at that time there were ten people in the house and that had reduced to three people, the condition of the home was “now a lot better” and he had since invested money in the house. The father said that the recent photographs of the house shown to the court were taken by the father and were now an “accurate demonstration of what the house looks like”. The father outlined the new furniture bought and decorating of the house with new flooring and the painting of walls and said that he had taken out a loan to carry this work out and buy new bunkbeds.
The father accepted the concern of the creche manager that there were issues with the children presenting with head lice and he told the court about the steps taken to deal with the head lice. Referring to the concern of the children wetting themselves in the care of the foster family the father said that they had never had that problem.
The father outlined his account of the incident where C had ingested an amphetamine and said that “I was kicking myself and crying as I thought I was responsible”. The father said that he was very angry about the evidence his son had given on the previous day about what had happened as “I thought it was me and it was [older child’s] fault all the time”.
Father: “I don’t like drugs, I never did and never will. I’m very angry with [older child] as he should have told me all these years [ago] and then he said yesterday he was responsible. He never told me he was responsible.”
The father was asked about the concern that the older child was sharing a bed with the younger children and he was asked to describe the sleeping arrangements in the house. The father was asked about the incident where there was a reported physical argument in the house.
The father said the he had never hit and that he was not violent and that he had got involved as the older child was taking drugs at the time and had threatened to push his mother down the stairs. The father said that there was no violence as suggested but that he got in front of his son “and told him to back off and not to speak to his mother like that again”. The father said that incidents like that were not common in the house. The father denied that he had made a comment to the social worker that the children should be in care and told the court that it was not something that he would have said. The father was asked about his relationship with the mother and how things had improved.
The barrister outlined each of the allegations of sexual assault made by F and the father denied each of the allegations. The father described to the court Friday evenings when the mother was out and he was usually at home in the sitting room having a film night with the children. The father was asked if anything had happened the day before the allegations were made by F. The father described an incident where F had refused to go to the shop with her mother although she had made a deal that she would go with her.
Father: “I said you made a deal and have to keep a deal. Out of anger I turned around and said I want her gone. I didn’t mean it. Then next thing I know I got a phone call from [the social worker] that she wants a meeting in the house as soon as possible. I rang [an older child] to find out what going on and [she] told me.”
The father was asked about his account of the recorded telephone conversation. The father disagreed with the suggestion that it was “a family gang up”. He said that F had told him about violence in her accommodation and that she was assault by a staff member.
Father: “I told her to record the conversation to protect herself. She told me to record. So I agreed to record the call to hear her talking to staff members.”
Judge: “She asked you to record it and you recorded it?”
Father: “Yes.”
The father was asked about the breakdown in the safety plan and he said had been living out of his car and he was angry that no steps had been taken in the investigation and his kids and wife were getting hurt and so “I said enough is enough and moved back in to be with the kids.”
The father said that going forward he would cooperate 100 per cent with any supports that could be made available by the social workers.
Asked about what he meant when he used the term neglect, he said when he came home from work late and tired he went straight to bed and did not have time for the children when he should have been spending time with them. The father said that he was not accepting that their physical or emotional needs were not met. The father said that when he cut his hours at work he had more time to spend with the children in the house.
In respect of the concern that the father controlled all of the finances in the house the father told the court that it was the mother who collected the child benefit and had control over how that money was spent. He said that money was given to the mother to buy what she wanted or needed for food.
Father’s barrister: “The mother would view herself as the boss in the house, not you, would you agree?”
Father: “100 per cent.”
The father was cross examined by the CFA’s barrister. The CFA barrister referred the father to the minutes of a child protection conference where it was stated that the father had said that the older son was sharing a bed with the younger children. The father said that the record was “inaccurate as it never happened”. He said that ten people was the most people living in the house at any one time but that this did not include boyfriend or girlfriends of the older children who also sometimes stayed in the house. The father accepted that it was already a crowded house and when he had permitted the girlfriends or boyfriends to stay in the house that he had not considered the impact on his younger children and he accepted that it was not in their best interests.
CFA Barrister: “You accepted from time to time there was neglect but not chronic?”
Father: “Yes, I was working and didn’t give enough time as I should.”
CFA Barrister: “You said ‘not chronic’. What do you mean?”
Father: “I didn’t know what neglect meant. I love my kids…”
CFA Barrister: “Neglect means children’s needs not been met for lack of parenting or inappropriate parenting be it hygiene, cleanliness or time? Do you accept you neglected the children?”
Father: “In that sense no.”
The father accepted that the general hygiene of the house was not acceptable at all times and that the cleanliness needed to be a lot better. The father accepted that there were silverfish in the home and they had been told how to get rid of them. The father accepted the evidence of the family support worker of the home being “filthy”. The father was asked if he accepted that the head lice was ongoing and chronic and he replied that he “100 per cent agreed” and that the family support worker came up with a plan for working together to get rid of the head lice.
The barrister asked how it was let to get to the point of chronic and ongoing and the father said that he was not helping his wife and that she had everything to do and that he “wasn’t pulling my weight” in the home. The father said that if the three children were back in the home there “would be more work but not a lot more work” as he was there to assist the mother and give her more help.
The CFA barrister noted that the father had rejected the allegations made by F and asked why she had maintained the allegations and stood by the allegations two years later. The father said that her life had gone downhill because of drugs and did not accept that it was because she had to leave the home after making the allegation. The father accepted that F left the home as a result of the allegations made against him but he said “she’s my daughter and can always come home” but that he would stay away from her because of the allegations she made.
Father: “She knows she lied about me and I’d be angry about it but she is my daughter.”
The father was asked about why he thought F would have made allegations and he said she may have seen an article about abuse. The CFA barrister asked if the father remembered giving evidence in the initial interim care order that she may have made the allegations because she was getting tracksuits out of it and gifts from the social workers.
Father: “Yes, I didn’t mean what I said. What I said was inappropriate and in anger.”
Judge: “Were you under oath when you said that?”
Father: “Yes. But she was getting tracksuits.”
The CFA barrister asked the father about the recorded telephone call and what was the purpose of the call and he repeated his account that she had told him about an assault by a staff member in the accommodation and that he had suggested that the call be recorded and she had agreed to that.
The CFA barrister referred the father to parts of the transcript where he had alerted Child F to the fact that the call was being recorded and had said “you’ve been notified, ok”. The barrister said that was very formal language and was like business or legal talk and asked why he had used that language. The father said: “I was tired.”
CFA barrister: “Did you say ‘notified’ as a plan all along to use in court proceedings?”
Father: “Not to use in court proceedings but to play the recording for my solicitor.”
The father said that “the idea was to prove that I didn’t touch her”. The father wanted to see what the solicitor thought and whether it would be “any use for the judge”. The father said that he was drawn into the conversation and then wanted to get proof to show that he did not touch her.
CFA barrister: “You didn’t tell her about recording it in advance.”
Father: “I told her [about] recording staff…I forgot to knock it off.”
CFA Barrister: “Did you intend to knock it off?”
Father: “I did.”
CFA Barrister: “How was it for your solicitor?”
Father: “The idea just came to mind during recording. [F] wanted evidence to get evidence of staff recording. It came to mind to get evidence to get support that I didn’t touch her.”
The father was asked his views about whether F was vulnerable at the time of the phone call.
CFA barrister: “Were you trying to take advantage of her?”
“No, I was not.”
CFA barrister: “Was it fair?”
Father: “When I look back on it, no it wasn’t. “
The father was cross examined by the barrister for the GAL. The father accepted that when child C came into care that his front teeth were decaying, he was not toilet trained and his mobility was compromised. He accepted that the child made progress in care and caught up on a lot. He accepted that if the children were to be returned home and if any of the older children returned home it could possibly be a very busy house again.
The father accepted that a lot of arguments were witnessed in the house. He denied that he was a violent man. Asked about the incident where he had assaulted one of the older children when they were a young child, he said he was drinking a lot of alcohol at the time and taking steroids but that he had told the social worker what he had done.
Referring to his daughter’s allegation of sexual abuse, he said: “I never touched her. I swear to God I didn’t touch her.”
The father described F as “spoilt” and said that all of the children got something when they wanted it.
GAL barrister: “You use word spoiled for a girl with lice embedded in her scalp and attending [counselling for self harm]. Spoilt sounds a bit wrong?”
Father: “When you put it that way, I accept that.”
GAL barrister: “Was she vulnerable?”
Father: “I’m not a psychologist, so I don’t really know.”
GAL barrister: “From your sense as a father, was she vulnerable or not.”
Father: “As a father, probably vulnerable.”
GAL barrister: “You are changing your evidence today to see whatever sounds best?”
Father: “No.”
The barrister for the GAL also asked the father a number of questions about the transcript of the recorded phone call and the purpose of the phone call recording.
The guardian ad litem’s evidence
The guardian ad litem (GAL) gave evidence that she did not know how the family functioned. She told the court that despite all of the supports that were provided the family’s enduring disability and capacity issues prevented them from fully utilising the supports provided.
She said that the children suffered serious neglect that was more like an enduring, passive neglect or depressed neglect that can come from a parent’s own experiences. She told the court that neglect is an omission rather than an act: the impact of not having normal care such as a parent taking no notice of things or no interaction with the children as well as serious physical neglect.
She told the court that there is a second side of neglect that is the most damaging and that is attachment. She said that attachment is fundamental to human life and that when a child is neglected, even with passive neglect, they develop an insecure attachment and that if a child does not cry or shed a tear when going into care then that is very concerning.
She said that progress with the family was made such as repairs to the house being completed, but how the family operated would not change. The damage done to the children was not minimised by the new kitchen table. She said that the children’s presentation when they were brought into care was devastating.
The GAL said that she met the children before they were brought into care. She told the court that the house was very dirty and that the children were dirty, and they had head lice. The children did ok in school, but they were known as the children who had head lice and who the other children would not want to play with. She said that they found school challenging.
She said that when the children were brought into care their mother was trying to reassure them because the children were tearful due to the fear of being separated from what they knew, good, bad or indifferent. She said that the children’s behaviour turned around quite quickly. They made quick gains from just basic good parenting, anger and tantrums had stopped, speech had improved, and they were toilet trained. She said that in her opinion the children have quite a good attachment to their carers.
GAL barrister: “Let’s move on to the children’s health.”
GAL: “The children enjoy overall good health, but [C’s] teeth are black from decay and A had issues with walking and soiling himself.”
She said that all of the children have had speech and language assessments.
The barrister for the GAL asked if the children had had any therapeutic interventions. The GAL replied that all of the children had had psychological assessments. She said that in her view the children needed a therapeutic plan going forward.
Barrister: “Can you give an analysis of the parents’ parenting capacity?”
The GAL said that the issues that stand out to her are that the Dad was controlling. He controlled the household, the mother and the children. She said that with regard to parenting capacity what sometimes happens is when one parent lacks capacity the other parent picks up the slack, but this did not happen with this family.
There are a lot of parents with deficits that can parent their children, she said. The parents you don’t see before the court are the ones that have a network of support such as a nanny, an aunt or a neighbour that helps. If a family does not have that support network, then the state has to provide support. A lot of times this is a success, but in this situation it did not work. It was not only that the mother had an intellectual disability, but that she did not respond to the vast supports provided. The parenting was not good enough.
The barrister for the GAL asked her to comment on the child who made allegations against the father.
The GAL told the court that she only saw the child once during access and once online. She said that she is a very vulnerable, under-weight and walking the streets alone at night, and that it begs one to wonder why there were not more state interventions over the years.
“It is extraordinary what this girl endured,” the GAL said.
From the age of 12 or 13 there were signs of neglect and the child became suicidal. The GAL told the court that she was not involved in any assessment regarding the allegations so she could only speak to what she herself had seen. She said that from her professional experience she thought the child was credible. The child’s story was consistent and there were times when the child corrected the interviewer and the child’s profile and presentation matched her experience. “For me that’s very important,” she said. She also told the court that there was evidence that the child had been manipulated by her father. What she heard during telephone calls was a masterclass in manipulation and demonstrated how a perpetrator can isolate their victim.
Judge: “Do you feel there were enough grounds for the children to be brought into care even without child F’s allegations?”
GAL: “Yes. For what it is worth I find her very credible.”
She said that the children continued to say they want to go home and that they would be sad if the court order is made. That continued to be their message.
Barrister for the mother: “Is it your view that the neglect of the children would alone warrant a care order? We heard evidence from the previous allocated social worker from 2011-2015 that the parenting was good enough. Are you disagreeing? He had more contact with the family. You heard evidence from the family support worker. Her evidence was that by the time she had left in 2016, the children were clean, there was no head lice, and no wetting their bed.”
GAL: Yes, Judge. In my opinion the neglect was so enduring and so long it was neglect that would warrant an application. Judge it is merely my opinion.”
She said that the issue was not only that the children were clean or that there was no head lice, but that they were very damaged and that the truth of what they had been through in terms of their presentation and behaviour was evident when they were brought into care.
Mother’s barrister: “The mother is very clear there was never any soiling or wetting prior to going into care. I’m suggesting the children were toilet trained. You heard evidence from professionals that it was not wilful neglect.”
GAL: “Yes. It wasn’t from a lack of care. She wanted what was best for them.”
The GAL said that the children’s soiling was due to the trauma of being taken into care, and that happens if they are not properly toilet trained. She said that there is a warmth between the mother and the children, but that there is a lack of insight as to why the children were taken into care. The mother was eager to show the yard work completed but that there was a lack of understanding as to why the yard work should be done. She said that the mother loved the children and the children loved her.
The barrister questioned the GAL on the supports required for the family to function. She said that the supports the GAL identified such as creche and school are not special supports as they are available to every child.
Barrister: “No additional supports were put in place. Do you think additional supports would have been warranted?”
“This family got tailored supports four times a week,” the GAL replied.
Barrister: “The supports were working, things were improving. The mother’s evidence would be that her supports were withdrawn and there hadn’t been any family supports for over a year.”
She asked the GAL if she thought the supports should have been put back in place given the mother’s cognitive functioning. “Do you think extra supports would assist the mother?”
GAL: “I’m sure it would have improved things, but it wouldn’t have been good enough.”
The GAL said that access was supervised, but due to Covid it had to take place via video call. Since Covid the children had not returned to the family home. She said that C regressed after access and started soiling himself, and access for children A and B had only re-started as their carers were vulnerable. In the future access would be supported in the family home.
Judge’s Decision
The judge summarised that the proceedings were pursued by the CFA pursuant to section 18 of the Child Care Act 1991 in respect of the three younger children of a large family, Child A, Child B and Child C. The judge noted that the hearing had commenced on 27th January 2020 and proceeded over nineteen days of full or part hearing.
The hearing was suspended during the Covid-19 restrictions and the hearing resumed in July after a suspension of approximately five months. The initial interim care order was granted in respect of the three children in November 2018 and they had been in the care of the CFA pending the outcome of the section 18 full care order hearing. The court noted in her decision that all of the parties in the court were represented by both a solicitor and a barrister.
The judge referred to the role of Article 42A of the Constitution in care proceedings and she cited the article in full and said that it guides every decision in care proceedings.
Judge: “In essence this constitutional provision mandates that state interference in family life can only occur in exceptional circumstances to such extent that the safety and welfare of children is likely to be prejudicially affected. It can only be by proportionate means.”
The judge noted that the children who were the subject matter of the proceedings may have their views before the court and such views can be given due weight by the court having regard to the children’s age and maturity. The judge said that the applicable provision, section 18 of the Child Care Act 1991 must be applied by the court in compliance with the constitutional provisions.
Judge: “I don’t propose to recite the provision in full other than to note that imposes a duty on the court to be satisfied that if an order is to be made that the children and the individual consideration of each child, whether they have been assaulted, mistreated, neglected or sexually abused, or their health, development or welfare has or is been neglected or likely to be avoidably impaired or neglected. I need to be satisfied of one of the provision and that the children require care and protection they are unlikely to receive unless the court makes a care order.”
The judge stated that the standard of proof was on the balance of probabilities. The court said that on hearing the application it was worth noting that the court conducts itself in an inquiry and she cited the decision of McCracken J in Eastern Health Board v McDonnell. The judge said that the court was obliged to conduct hearings in accordance with the statement of principle in section 24 of Child Care Act 1991. In any proceedings relating to the protection of a child, having regard to the rights and duties of the parents, the court shall have regard to welfare of the child as first and paramount. The judge stated that was the legal framework within which the court must determine matters.
The judge said that the court could only make a decision on the evidence or facts found. The judge said that it was not appropriate or lawful that expert opinion would be a substitute for a judge’s finding of fact.
The judge noted that hearsay evidence of the children was the subject of an application pursuant to section 23 before the court. The court noted the role of the GAL that the wishes of the children in the case were brought before the court by the GAL appointed pursuant to section 26. The judge stated that the GAL was not a party to the issues in dispute but was there to represent the wishes and welfare and children. The judge said that the wishes of the children would be given due wight having regard to their age and maturity. The judge clarified that the welfare of children means their physical needs, social needs, educational needs, intellectual needs and their religious and moral needs.
The judge said that it was a case where the credibility of the witnesses was also a matter that had to be looked at where serious allegation had been made and the court had a duty to ensure fairness in accordance with law. The judge referred to two earlier decisions that she would be guided by in assessing the credibility of witnesses. The judge said that in considering credibility the court can look at a number of matters such as the timing of a statement and the motivations, use or non-use of language, the verbal and intellectual abilities of witnesses.
The judge listed the witnesses that the court had heard from during the course of the hearing which included the father, three of the older children in the family, two psychologists, the public health nurse, the creche manager, family support worker, a Garda, the allocated social worker, the social worker previously allocated to the case and the team leader.
The judge said that an issue had arisen with the evidence of a psychologist that was engaged by the CFA to carry out a parenting capacity assessment but had engaged an individual to conduct tests who was not available to the court. The judge said that it appeared that the CFA were not relying on the evidence in any event but that the court wanted to make clear that the court was taking no consideration of that evidence.
The judge also referred to the evidence of a witness who had carried out a risk assessment of the father. The judge said that the court had noted that this witness could offer no opinion whether the father did or did not sexually abuse in the terms alleged by F or that he may or may not sexually abuse in the future. The assessment was whether the father currently posed a sexual risk to his children or any child and the capacity of the mother to supervise the father. The judge summarised the evidence given and that the assessment was based on literature associated with recidivism in convicted offenders and the objections made on behalf of the parents. The judge stated that the court was taking absolutely no account of his view whatever it may be.
This court said that it had to make a determination in respect of credibility and it was not appropriate that any expert be delegated the role of findings of fact. The judge referred to the evidence given in respect of a cognitive assessment and assessment of functionality of the parents and the expert’s finding that the mother had a mild learning disability. The judge accepted the psychologist’s view that was not contradicted by any evidence to the contrary that they were extremely vulnerable adults with long-standing learning disabilities.
In respect of the section 23 application the judge stated that she was admitting the hearsay statements as it was not in the best interests of the children to come to court to give evidence and be cross examined. The judge said that she was of the view that the statements were made but due to the questions that were posed to the children and the ages and level of maturity of children, the court was attaching no significant weight to the statements.
The judge clarified that the parties should be mindful of the fact that the court heard evidence over nineteen days and that she was taking account of all of the evidence. The court said that any specific reference to a piece of evidence did not have the meaning that all of the evidence was not considered.
The judge set out the findings of fact that she was making. In respect of the three children, having given each child individual consideration, the court made a finding of fact that the children had suffered chronic neglect of a persistent and sustained nature throughout their entire lives. The court found that their basic care needs were not met by referencing their physical and emotional welfare, no basic level of routine, basic hygiene and attention to their medical needs. The court found that there was a lack of interaction and passive neglectful parenting during their lifetime in the house. There was no significant stimulation or interaction or education to meet their social needs to approximate “good enough parenting”. The court found that there was no routine or structure in the household with no supervision.
The court stated that there was a “chronic lack of hygiene” in the household with head lice infestations beyond the norm with one of the children requiring antibiotics because of sores on their head with head lice burrowing into their head. The judge recalled that A had been diagnosed with a mild learning disability in his assessment of need and C had a global developmental delay. The court noted that F had also been diagnosed with learning difficulties.
Judge: “It is noteworthy that the creche manager with eighteen years’ experience as a creche worker and manager in an area with more than its fair share of socially disadvantaged families … recalled this family vividly and they still remain in her memory due to the chronic level of neglect and presentation. The family stood out to her among all families who engaged with her services.”
The judge stated that the public health nurse had described the presentation of the home as “atrocious” and that the children had presented filthy, in social isolation and “not cared for and neglected children”.
Judge: “I want to emphasise a point in relation to the mother that any lack of parenting is not wilful but one of innate cognitive challenges. I am satisfied that the sustained wrap around service offered to the family, … services that reached a level rarely seen in these courts and were tailored to the particular circumstances of the mother and the entire family.”
The judge said that it was noteworthy that the father played a less active role in the household and that he was the breadwinner and had worked long hours. The judge said that the father was little help to the mother in the daily challenging mundane grind of parenting chores that were part of ‘good enough parenting’. The judge noted that the father had admitted that he had been at work and had worked long hours and may not have played his part. The father had admitted that the mother was on her own and didn’t have sufficient help and that she had struggled on her own.
The judge noted that the father had admitted in evidence that he had self-reported for a physical violent assault of an older child some two decades ago that had necessitated the child to be admitted for hospital treatment. The father had described himself as not a violent man and that he was on steroids at the time. The judge made the following comments in respect of the evidence given by the father to the court.
Judge: “In the main, the court found the father to be an unreliable and untrustworthy narrator of any of events to the extent that the court cannot place any reliance on the veracity or truthfulness of any of his testimony.”
The judge referred to the audio phone call recording that had been played to the court that was admitted to evidence on the application of the father. It had been played to the court and F as it was the father’s wish that the contents of the recording be put to her in cross examination.
Judge: “The court listened attentively to the content of the recording and had the benefit of a typed transcript and the court has concluded that the father played an active and commanding role in this conversation and in the plan for this conversation. He seeks to rely on the recording as evidence of the fact that [F] retracted allegations against him. It is noted that [F] gave evidence to the court by live TV link pursuant to section 26 of Civil Law (Miscellaneous Provisions) Act 2008 and the court is satisfied that it was in accordance with law and there was no unfairness.”
In relation the allegations made by F, the court found that her account of interfamilial sexual abuse with the father as the perpetrator was credible and true and was proven as a fact on the balance of probabilities. The judge said that she was struck by her clarity, consistency and use of plain language, her lack of embellishment, her desire not to say anything unless she was absolutely sure it was true. The judge described F’s account as “clear, consistent, coherent, frank and reliable”.
The judge said that in contrast she found the evidence of the father to be lacking in any credibility and truthfulness. The father had denied being violent, had denied the sexual abuse and had denied being the boss of the house. The judge said that she did not accept the denials.
In respect of the audio recording the judge said that she was satisfied that the father had facilitated and executed the plan with the cooperation of the eldest daughter and the mother. The judge said that they were under his control and direction to manipulate a situation where a retraction was made. The judge said that she believed that the retraction was made by duress and undue influence perpetrated upon the girl and “intimidation orchestrated by the father” and that it was not a reliable retraction and that the retraction was untrue. The judge concluded that she was satisfied that the father did sexually abuse the daughter in the terms of the allegations made.
In respect of the wishes of the children the judge found that B was too young to form a view but did state that they wanted “to live with mum and dad” and wanted to go home. The judge was satisfied that the express wishes were motivated by loyalty to their family of origin and they were equally not entirely averse to staying with the foster family. The judge noted that there was a manifest improvement with their physical presentation and demeanour and the court was satisfied that the children were well cared for in their foster care placement. The judge said that given the children’s ages, development and level of understanding and taking due consideration, she was attaching no significant weight when making her decision in respect of their overall welfare.
The judge concluded that it was the court’s view that the chronic neglect had been proven, the sexual abuse had been proven and had occurred in the family in the terms as pleaded and as alleged by the CFA. The judge was satisfied that the case was proved on the balance of probabilities.
The judge said that she had given consideration to each individual child and that she was satisfied to make an order under section 18(1) of the Child Care Act 1991 and that it was necessary and proportionate to take the children into State care. The court concluded that the only proportionate order was for an order for the entire term of their minority to secure their welfare for their childhood.
The judge made a number of directions for the CFA to act on. The court directed the CFA to identify for the mother therapy services that she could access in light of the court’s findings.
Judge: “This court accepts that the mother loves her children and is dependent on the father completely in terms of financial, physical and emotional security and that she will find this decision traumatic.”
The judge directed the CFA to identify for the father therapy services that he could avail of that would afford him a private and confidential service which he can attend.
Judge: “I believe the father on my findings knows what he has done. I would like him to have the space and opportunity to address his behaviours and remedy them.”
The judge directed that access should occur under the terms of section 37 of the Child Care Act 1991 and that access was at the discretion of the CFA. The judge directed that access should be supervised and facilitated outside of the home environment and directed the CFA to facilitate sibling access.
The judge made an order lifting the in camera rule so that the CFA could inform F of the court’s findings in respect of her account and to indicate that the court had found her account to be coherent and courageous and that it showed her love and loyalty to her family to make the revelation for the safety of the younger children. She asked that F be told it was the actions of the father that were the reason the children were put into care and that “it was not her fault in any way and she is advised to access whatever services will help her, and her courage is such that she has a bright future.”
The judge also directed that this information in respect of the court’s findings concerning the allegations made by F should be provided to the older siblings.
Judge: “I am sorry to the mother and the father that I have had to reach these conclusions and I am directing the agency to identify therapy for both of you.”
(The CCLRP has learned that this case is subject to appeal to the Circuit Court)
