Interim care orders were extended for two children with significant special needs, where the court heard that the HSE could not provide appropriate services until March 2025 due to resource constraints. The judge was highly critical of the HSE, who despite having adopted the assessment of need for one of the disabled children, indicated to the court that it would be March 2025 before the necessary services would be available to the child, 33 months after her needs were identified.
The mother was not present in court as she was uncontactable and therefore was unable to give any instructions to her solicitor. The father was consenting to an extension on a without prejudice basis. He was currently serving a sentence in prison and would not be released until 2025. He was a guardian of the children.
An update was provided to the court that the mother was commencing a drugs course and was hoping to transition to the progression unit. She had weekly access with the older child and video access with the younger child.
The court was told that the 12-month anniversary of the interim care order being granted was upon them and the children were still with foster carers who were still the subject of an emergency fostering assessment. The situation was to have been resolved in Summer 2023 and now six months later it still was not resolved. The solicitor for the guardian ad litem (GAL) said the longer it goes on the worse it will be if the outcome of the fostering assessment is negative and the children needed to be removed from their placement.
The court heard that both children have had assessments and both had significant needs and were in the same position regarding the services that were needed. Private referrals were needed to be made to service providers.
A key issue was that there was no transparent output from any of the meetings, the service providers had not been identified, there was no funding and applications had not been made. There needed to be timely outputs and updates and this done in an effective manner. The GAL had made further recommendations and had said that there needed to be a HSE Disability Manager involved in the case and that the children needed a holistic multi-disciplinary service.
There was also a dispute as to whether service providers or the HSE should be providing the services.
The judge said that the children were not being provided with what they needed.
He granted only a two-week extension and said he wanted a statement from those conducting the fostering assessment on what was done and what still needed to be done. He said the minutes of the meetings needed to be provided and he said that the children’s constitutional rights were not being met.
He said now was time for action and that the Assessment of Need and the services needed to be resolved.
In a subsequent hearing two months later, the allocated social worker told the court that the two children, aged five and four years of age respectively, were in a relative foster care placement and that their grandmother and great-grandmother had been approved as a foster carers. However, she said that respite care would also be required, preferably with other relatives. Both children had school placements for the next school year.
The social worker said that the older girl saw her father in prison every two weeks, but that the father had asked to have some video access with the younger girl.
The GAL had had a recent meeting with the two girls and had submitted a report to the court.
Her solicitor told the court that the older girl had undergone a psychological assessment and she was receiving play therapy. There was also an outstanding occupational therapy referral which needed to be finalised.
The younger girl had a diagnosis of global developmental delay and was on the autism spectrum. An assessment of need had been undertaken and adopted by the HSE which had identified the need for integrated Multi-Disciplinary Treatment (MDT). The MDT could only be provided within the public health system as it embraced so many disciplines and would be required over a long period of time.
The GAL’s solicitor said that it was not suitable to “just cobble the different treatment strands together, it’s a service that should be delivered by the State within the community.” However, the HSE had indicated that it would be March 2025 before the necessary services would be available to the child, 33 months since her needs had been identified.
The GAL’s solicitor said that, following the institution of a recent joint protocol between government agencies which precluded litigation for the provision of services, it was not possible for the CFA to sue the HSE. However, there was a dichotomy between the provision of the necessary services by HSE and the CFA’s duty of care to the child.
He said that the 33 months’ time lapse in the HSE provision of services was untenable and was an abject failure of the State to deliver for the child. Because of the joint protocol, the GAL could not take a section 47 against the CFA or anyone else. The parents might have to litigate separately in a different court by way of a personal injury claim on behalf of the child and this was the only way to be prioritised by the HSE.
The solicitor for the HSE told the court that she appreciated the position that everyone was in. She said that it was a resource issue and that a lot of the HSE’s resources had had to be deployed to deal with the many statutory entitlements for assessment of needs that were being litigated in the High Court. She said that while the HSE did have a service statement, it was totally resource dependent. She said that while it was very frustrating to have such huge waiting lists, the HSE could not prioritise children in care over other children.
The judge said that the issue was not within the control of this court. He found that the grounds for the interim orders continued to exist and he granted a 28-day extension to the orders. He also directed that the in camera rule be lifted to allow the GAL share her report with the HSE.
