See follow up Vol 2 of 2019: Judgment made in long-running case: Care orders granted until 2022 after 100 days of hearing, longer orders refused
See follow up Vol 1 of 2019: Evidence continues in long-running case in rural town
See follow up Vol 2 of 2018: Psychological evidence given in long-running case
See follow up Vol 2 of 2017: Nearly two years after case started, court sees video of child describing abuse
Earlier this year the CFA sought care orders until the age of 18 for four children aged between three and 13, living in a rural town. They had been in care voluntarily and under Interim Care Orders for over two years, following the youngest child being brought to hospital as an infant with unexplained head injuries. The guardian ad litem was supporting the application.
A week and a half’s evidence was given, and then the case was adjourned until July. The adjournment was later extended until October.
The two older children had a different father [Y] from the younger ones, who was represented but not in court and not opposing the application. The mother of all the children was in court with her third husband [X], the father of the two youngest children.
The CFA barrister told the court the family had been known to the HSE since 2004. There were two older children who were now over 18, the daughters of the first and second husbands. There had been allegations of the sexual abuse of the oldest one and of her engaging in under-age sex. The girl had alleged her step-father [Y] had forced oral sex on her from the age of six. She suffered from bulimia and self-harming and there were referrals in 2007, 2009 and 2011. The home environment was described as chaotic, with a lack of boundaries and supervision. A young child was opening doors and wandering out. There had been a referral to speech and language therapy.
In 2013 there was a social work referral from the local hospital regarding a child’s suspected fresh fracture. The three-month-old baby had an unexplained head injury, sustained while in the care of its mother. The parents were questioned but were unable to explain the injury. The children were taken into care. The mother had little insight into the impact of her behaviour on the children. A parenting programme had been drawn up, but it was not applied in a consistent manner.
The children have benefited from structure and stability while in care, according to the CFA barrister. The reasons for seeking the interim care orders were the chaotic environment, the lack of structure and emotional abuse. It was the view of the social work department that the welfare of the children was likely to continue to be avoidably impaired and could only be assured by them continuing in their care placement.
The CFA barrister said there had been child protection notifications in another part of the country between 2005 and 2007, which were then discharged. Then there were further referrals, followed by the injury to the youngest child, who had a swelling on her head. An MRI scan showed a bleed. The public health nurse reported that the house was in a poor state of hygiene.
The barrister said the youngest child had been referred from the local hospital with a suspected fresh fracture. The parents were questioned, but had no explanation as to how the three-month-old baby came to have such an unexplained head injury. There was a parenting capacity assessment of the mother, who was shown to have very little insight into the impact of her behaviour on the children. There was a question mark over her learning ability.
The children were in voluntary care from November 2013 until November 2014, when consent was withdrawn and the CFA obtained Interim Care Orders.
It was the view of the social work department that the welfare of the children was likely to continue to be avoidably impaired and could only be assured by continuing in their care placements. If the court accepted this as a finding of fact the CFA submitted that the children required an order to assure their care and safety.
The judge asked if the application had essentially been prompted by the non-accidental injury of the youngest child. The barrister said that the [older] children were subject to child protection notifications between 2005 and 2007, which were discharged. There were further referrals. Then there was the injury to the youngest child.
Judge: “Am I dealing with a NAI [non-accidental injury] case?”
Barrister: “No. The position of the CFA is that the injury is unexplained, not that it was caused by either of the parents. Since the children were taken into care a lot of concerns have emerged about lack of structure and supervision.”
The judge asked if the Practice Direction had been adhered to, with experts’ reports being exchanged. “They may wish to discuss them in advance to see where they agree and disagree. Otherwise we could listen to hours of evidence unnecessarily,” he said.
The CFA barrister said that the baby’s injury had given rise to serious concern. The mother brought the child to the hospital a week after she noticed the swelling. There had been a failure to protect and since the children came into care other concerns had emerged. She called a team leader from the area where the family had previously lived to give evidence of the referrals there.
First Module
The team leader told the court that in 2005 a social work report had come from another jurisdiction, where the mother had lived with the father of the older children [Y], and her eldest child [A], her daughter from an earlier marriage. There had been an allegation that the child’s step-father [Y] had forced her to perform oral sex from the age of six or seven. The mother had also expressed concerns about the girl’s behaviour, and she was referred to CAMHS. She was now about 14 and was engaging in sexual activity and complaining of stomach pains. The second child [B] also alleged inappropriate behaviour between her father and A. He left the family home and was later convicted of the sexual offence.
There was a child protection conference at the end of 2005 and the children were placed on the child protection register. The parents separated for a while and then got back together. The oldest girl was in a boarding school for a time. A number of support services were going into the home. The oldest girl continued to struggle and there were a number of pregnancy scares, including two miscarriages.
The two youngest children [C and D] were in a crèche. The younger one was very demanding of attention. He was referred for speech and language therapy. There were concerns about domestic violence. The mother said all the problems in the family were due to the problems with the eldest daughter, who at the age of 16 was refusing to live at home. The mother arranged for her to live with a family friend. The team leader said she had a poor understanding of the impact of sexual abuse on the girl.
GAL solicitor: “Yet she [the mother] was allowed supervise access between the young boys [C and D] and their father?”
Team leader: “That was not of concern at the time.”
She said the father then disengaged from the child protection process and the mother made it clear she would not continue their relationship if he did not re-engage. At this stage she was attending counselling herself arising out of her own early experiences.
The parents’ barrister asked her if she accepted that a person who experiences emotional abuse and domestic violence has difficulty dealing with those issues. The team leader said she did.
Barrister: “The mother had experienced sexual abuse herself as a child. Do you accept that it can be difficult to deal with in relation to others?”
Team leader: “Inappropriate sexual conduct between an adult and a child is always inappropriate. She did cooperate with us around the plan.”
The barrister said that her first response was that she did not want to supervise access between the father [Y] and younger children and asked the social work department to do it. “There were staffing issues,” the team leader replied.
The barrister said the mother had difficulty in controlling A, but did her best to protect her, including around contraception. The team leader agreed.
Referring to the fourth child [D], the barrister said the mother was always very honest about his difficulties and agreeable to all assessments. The judge asked if the concerns at this time were with regard to the two older children, or all four. The team leader said they were mainly about the two older children, but there were also concerns about C and D. The family environment at this time was chaotic.
Judge: “But the level of chaos was not such that required the taking of the children into care?”
Team leader: “That was our conclusion.”
A social worker from an organisation in this part of the country that provided support to children with special needs said referrals came to her organisation concerning the behavioural problems of the younger children. Her role was to provide support to the family and ensure they had access to all their entitlements. She would pass on any child protection concerns to the HSE.
The youngest child at this time [D] kept wandering off by himself. There were concerns about supervision, which were passed on to the HSE. She stressed the importance of the mother making changes to her parenting style. She had a relaxed parenting style and felt children should learn from experience. The professionals disagreed, stating the children needed structure and routine.
There was a home visit in 2009. The four-year-old was wandering around the housing estate. On one occasion he left the estate. The mother was concerned about him running off. He had got out of a window and onto a car. “We were concerned no-one seemed to realise he was doing that.”
There were also concerns about the mother’s relationship with the second child [B]. The mother said she had a very bad temper and had had to lock herself away from her.
The social worker said she talked to the mother about structure around meal-times and bed-times. The children were allowed eat as they wanted to, with no particular mealtimes. At one point the third child [C] would have to go to a friend’s house while D was going to bed and then come home when D was asleep.
There were various assessments of D. The psychologist said he did not have a learning disability but a diagnosis of ADHD. Speech and language support made a huge different. She said she felt if that input had been at home it would have been beneficial. The usual supports for a family included a lot of confirmation of the child at home.
If a child is diagnosed with no learning disability there is no support, she said. There was advice to the mother around parenting which was disregarded. In pre-school there were a lot of rules and structures but the home did not operate in the same way. “It must have been confusing for a four-year-old.” They felt his emotional needs were not being met. The support team suggested more structured activities and play activities from the pre-school, but this was not accepted.
There had been a respite placement but that broke down, which was a pity as D had got an idea there of normal family life. His relationship with his mother was unusual in that it was not very affectionate. His behaviour was a challenge which made it difficult to parent him. The mother thought that “imaginary boundaries” were working with the child, but they were not.
The parent’s barrister asked her if the case had been closed in 2007. “There had been progress in the diagnosis [of D] then,” she said. “Previously there had been a question of autism. There was delayed speech and language development. There were behavioural issues.”
The social worker said she believed that autism had been ruled out. “It was not ruled out. It was sent to another consultant specialising in autism,” the barrister said. She acknowledged that autism was later ruled out because of countervailing indicators, but global development delay was described. “The mother herself raised safety issues with you at her first meeting. It was one of her priority issues,” she said. The social worker agreed.
Barrister: “I put it to you that the mother was blue in the face trying to get you to accept the dangers [to D] and her observations were borne out later by a psychologist. She tried what you suggested and it didn’t work.”
Social worker: “She did tell us that what we were suggesting would not work and we knew they were working in the pre-school.”
Barrister: “She was always willing to engage. As for structured activities, she brought him to swimming lessons, to kick-boxing, to rugby.”
Social worker: “I was not aware of the kick-boxing and the rugby.”
Barrister: “What I’m putting to you is that the mother was trying various recommendations, but they were not working. What you interpret as not cooperating was her trying to tell you that the recommendations were not working.”
Social worker: “We felt that the structures in the pre-school were working for D. Previously he was hitting children. We felt if these [structures] were duplicated at home he would have a better experience. With all the children we work with we start with structure around meal-times, bed-times, etc.”
The barrister said that a home adviser had been suggested, and the mother was delighted and hoped she would come to the home to help her, but at the first meeting she was told the home adviser would only be working in the crèche. The social worker said that there were two staff in the crèche and they were having a lot of difficulty with D. The home adviser did a lot of work with him in the crèche.
The barrister asked her if the mother had said she needed support at specific times of the day when she was having difficulties. The social worker said she did say she needed support at night-time, but supports come during the day.
Barrister: “It’s not that she was not listening to you, but you were not listening to her. She was saying, ‘don’t come to me with abstract recommendations, come at times of particular difficulty’.”
Social worker: “We were saying these things work with children.”
Barrister: “This was not an ordinary child.”
Social worker: “I work with children with special needs. These things do work with most of them.”
Judge: “All the incidents you refer to seem to have arisen from the mother discussing them with you and bringing them to your attention. Would that be in her favour?”
Social worker: “Yes. But unfortunately she did not agree with the recommendations.”
Judge: “Is there a gold standard of parenting?”
Social worker: “We see that children who have structure do well. I don’t think anyone is trying to achieve a gold standard.”
Asked by the judge at what stage she would refer concerns about children to the HSE [then the responsible body for children], she said when there were significant concerns about a child’s safety. Asked if she was surprised when no action was recommended, she said: “No, but we have an obligation to refer. It was not at the serious end of the scale.”
Judge: “Did you feel the mother was neglectful?”
Social worker: “I felt a child with those behavioural issues needed more supervision. A child of four, with the behavioural issues he had, playing on the road on his own was neglectful.”
Judge: “You’d be none the wiser if the mother had not drawn it to your attention.”
Social worker: “No.”
A speech and language therapist from the same area gave evidence of the child being referred to a specific language class, for children of normal cognitive ability, but who had language delay. Though he was still wearing nappies at night aged six, she felt he did not meet the diagnosis of global developmental delay at this stage.
There were various concerns, including poor personal hygiene and not wearing underwear. His body odour was bad.
Asked by the solicitor for the GAL why his progress was so slow, she said this was because the carry-over from home was not adequate. His mother was given home exercises, but the therapist felt at times they were not being done. He regressed after a break from school.
Asked if the mother displayed any awareness of the impact of his poor personal hygiene on his interaction with others, she said she was not, but her attention was drawn to it by the class teacher.
The mother’s barrister asked her if she was aware that before her involvement the boy had a special needs assistant (SNA) in school, and she said she was. Barrister: “And a function of an SNA was to help with hygiene issues. Without an SNA he would have had difficulty with wiping himself after going to the toilet?”
SL therapist: “I’m aware that could occur.”
Judge: “This is relevant. If he was presenting as unhygienic, smelling of faeces, and his mother said he had a problem wiping his bum, that could explain it. Do you accept his mother said this? Were any allowances made?”
SL Therapist: “It is not my role to give assistance in going to the toilet. It is to help the child.”
Judge: “Why are you here? To give evidence of neglect?
SL Therapist: “Yes.”
Judge: “In the examination in chief you should have said the mother drew attention to this [the toileting problem].”
Parents’ barrister: “In relation him not having underwear and socks, the mother will say that there were days when she was dressing him and he just refused to put on socks and she put them in his schoolbag in case he got cold. You said nothing to her about it. If you had she would have explained.”
Judge: “Were you asked to prepare a report for today?”
SL Therapist: “Yes, to outline my concerns.”
Judge: “Were there good days as well as bad?”
SL Therapist: “Yes.”
Judge: “Many good days?”
SL Therapist: “Yes.”
Judge: “I’ve just been given the bad times. Can I take it the children you deal with sometimes have bad days, when they seem to regress?”
SL Therapist: “Yes.”
Judge: “Was there much of an improvement while he was with you?”
SL Therapist: “Yes, from a score of 73 to 92 [in one area] and from 43 to 82 [in another].”
Judge: “So it was a reasonably successful intervention over a two-year period?”
SL Therapist: “Yes.”
Judge: “So why was all your evidence about problems? Was that what you were told to do?”
SL Therapist: “No.”
Judge: “Do other children sometimes regress after a time at home?”
SL Therapist: “Yes.”
Judge: “So am I to think the mother and father did something wrong here?”
SL Therapist: “There is no evidence of that.”
Judge: “So were your concerns about this child about the hygiene issue, rather than educationally?”
SL Therapist: “He did very well educationally.”
Judge: “That’s not the impression I got from the examination in chief.”
The judge then asked the therapist about the child soiling himself. She said it happened about half the time he was in school. She agreed it could have happened when he was in school, rather than coming to school dirty.
The judge asked where this evidence was going, and the parents’ barrister said that there were a number of referrals [to the HSE] which were being dealt with chronologically. The judge said he considered that the events that led to the children being taken into care should be dealt with first. “This case is listed for 10 days. At this pace it could take double that.”
Parents’ barrister: “My clients’ position is that the children were taken into care as a result of an event. If there was a non-accidental injury an emergency care order was justified. But there is no evidence there was a non-accidental injury.”
“I can’t tell you how to present your case,” the judge told the CFA barrister. “But court time is valuable. If I can’t finish this in 10 days and can’t take it up for another two months it is not in anyone’s interests, the children, the parties, practitioners. Is there any mechanism to void this? Matters that could be agreed? The fact that this is an inquiry does not mean we can avoid the rules of evidence.”
A public health nurse from the same area gave evidence of her contacts with the family in the early 2000s. She said the mother wanted the boys circumcised. In 2006 concerns emerged about D’s speech and he was slow to toilet train.
She was also concerned about the failure of the next child [E] to thrive as a baby and he was hospitalised. She discussed the importance of formula top-ups with the mother, who did this for a while, then she expressed milk. The baby had a significant increase in his weight with the formula and there was no problem after three months.
Referring to her concern about the boys being circumcised, the parents’ barrister asked her if she knew the mother was Jewish. She said she did. She agreed that the mother had successfully breast-fed her two older children and the youngest child.
The solicitor for the GAL asked her how often she would see the kind of weight loss she saw with E, and she said: “Very rarely, 240 grams is a lot.” The judge asked if it was so serious that it required social work intervention, and she said: “No.”
A Garda from this area gave evidence concerning an incident involving the second girl, B, now over 18 and not the subject of the proceedings. He made a referral to the social work department after the incident. This arose where her mother reported her missing at 3.30 am one morning, saying the girl had been due home at 12.30 am. She was 12 at the time.
She was found in a car park at 4.30 am and appeared to have alcohol taken. Her mother arrived and there was a scene. The mother brought her home in a dishevelled state. The Gardai were concerned that the girl may have been sexually assaulted. She was referred to her GP and eventually sent to a sexual assault unit in the nearest city.
Asked how she presented when she was found, the Garda said she was sitting on a wall, her speech was slurred.
The parents’ barrister if this had been the night of a festival in the town, when there were due to be fireworks which were meant to go off at midnight, and the Garda agreed. The barrister said that the girl was meant to be home at 12.30 am and 20 minutes after the deadline her mother had gone looking for her with friends. A friend found her and contacted the Gardai, who got to the car park before the mother.
The barrister said that the girl would say she bought a soft drink in a shop and left it on a ledge while fixing her clothes. People were walking by. She then drank it, and remembers nothing else. When she got home she found her tights and bra were disturbed.
The judge said that this girl was not the subject of the proceedings.
Second Module
The family had moved to another party of the country, where these proceedings were taking place. Evidence was then heard about the relations between the family and social services in this part of the country.
A social worker from this part of the country said she came into contact with the family when the mother brought her three-month-old baby to hospital worried about a possible fracture to the skull. No explanation was offered for the injury. She got information about the other children, and the concern that one had global developmental delay. At the time her main concern was for the baby.
Asked about the injury, the mother said she could not explain it, but thought there might have been an incident with D. There had also been an incident when she left the baby in a carrycot in a room with the toddler, E, and went to the toilet, and when she came back the baby was on the floor crying. There was a lump on her head.
The public health nurse visited for routine checks and the mother showed her the lump. She had an existing appointment later with her GP and the nurse said to show it to him. He then suggested she bring the baby to the hospital to be checked.
The CFA barrister said the injury involved a bleed between the brain and the skull. The baby was sent to Dublin to see if she had suffered significant damage, but she had not.
The social worker said there had been three interviews with the parents about the injury. The father thought she might have had a fall when E was trying to sleep with her, and it did not go very well, though he [E] was kind to her. The mother had also told him she thought E may have pushed the baby. It could have been two incidents, one involving D, the other E, according to the parents.
The social worker invoked the Section 12 procedure [emergency care order application] and told the parents that the baby had suffered a serious head injury for which there was no explanation. The children were all taken into care.
Following the children being taken into care, the foster parents of C and E (who were fostered together) had concerns about the children’s relationship. C saw himself as E’s carer, which was challenging for the foster carer. He brought him downstairs, changed his nappy, dressed him and sat with him watching TV. He was extremely defensive and wanted to know why he couldn’t go home. The department decided the children should be in separate placements. “I would not expect a 10-year-old boy to be in a position to change a nappy,” she said.
Asked how they reacted to being split up, the social worker said C was very upset. E did not have much speech. He was quiet, withdrawn and tearful.
There were other issues when the children went into care. C did not wear underwear and it took weeks to get him to change his clothes. He was a very fussy eater and initially was reluctant to go outside. D had very low self-confidence and had a serious problem with bed-wetting and also had an unhealthy relationship with food, eating constantly. When he wet the bed in the night he got up, stripped the bed and re-made it on the floor. He said this was what he did at home. The bed-wetting stopped over time.
The children were in voluntary care at this time. The social worker went to the parents’ house to get consent to it continuing and found the house to be cold and untidy. There were no duvet covers or sheets on the children’s beds.
She said D, who had been chubby, had stopped eating between meals when in care and was involved in physical activity. He was a member of the school football team.
The judge asked had the children been referred to a psychiatrist and the social worker said they had been referred but had not been seen yet. Two therapists had said they could not provide therapy for the children until a decision had been made about their long-term care. “It might be useful to hear psychological evidence,” the judge said.
Asked about access with the parents, the social worker said D had monthly access for an hour and a half, the others had weekly supervised access. D was physically boisterous. He enjoyed physical contact with the father [X, who was not his biological father]. She said he had written to the judge. The judge asked if the GAL had seen the letter, and her solicitor said she had. “I’ll deal with it in that context,” he said.
The social worker said that D regarded the mother’s current husband, X, father of the two younger children, as his father and was not aware he was not his biological father. His brother C was aware X was not his biological father and told D. “He was very upset and tearful” the social worker said. “In three years I never saw him so upset. He was quite confused. He said, ‘now I have three fathers [including the foster father]’. I reassured him that [X] loved him and would always love him.”
Judge: “Were any special arrangements made for him to see X?”
Social worker: “No.”
Judge: “Was that the best way to deal with it?”
Social worker: “Possibly not.”
Judge: “Was it raised with the mother?”
Social worker: “Not directly.”
Judge: “Then how was he to get reassurance? This is not something unique, it happens with adopted children. Is that best practice?”
Social worker: “It’s my practice.”
Judge: “Did he have any therapeutic intervention? Any counselling?”
Social worker: “He talks to me.”
The judge summarised the case being put as based on the non-accidental injury, which led to the children being taken into care, where other issues arose relating to the children’s presentation and their home life. “Now turn to the issue of future harm,” he said.
The social worker said that E was two when he was taken into care, initially with his older brother C. He presented in care as disorganised and had anger issues. He had no bed-time routine and no structure. He had no speech, which left him frustrated, and no meal-time routine. He was unable to sit or feed himself and would only eat processed or liquid foods directly from sachets. He appeared not to be able to chew and swallow when he came into care.
He was a very frustrated child when first placed and was very aggressive, kicking, spitting, biting and head-butting when foster carers tried to put routines in place.
Now five, his presentation had improved, he fed himself and had a varied diet, but there was still an issue at dinner time. He could not sit at the table and would only eat his dinner in front of the TV, being fed by the foster carer.
An assessment by the early intervention team took place after he was taken into care and he was assessed as requiring speech and language therapy. The judge clarified that the referral was not because the family were under scrutiny in the previous place of residence, but only following the incident where they now lived, and this assessment was routine.
An attachment assessment was carried out in November 2013 by an attachment expert who was not being called. It was considered necessary because of E’s behaviour towards his foster carers and his aggression. His behaviour escalated following access. Such assessments were requested for all the children, but only E’s was accepted. The social worker told the judge she did not know why it was not accepted for the others.
Asked if there was an improvement in E, she said there had been been, especially in his relationship with his foster mother.
An updated attachment assessment was carried out in October 2015 by another expert because there had been issues reported by the foster carers particularly following access. E was going into disassociated states on drives to and home from access and there were episodes of him shutting down for prolonged period of time. On one occasion he did not wake until the following morning, which caused huge concerns.
Judge: “Was anything sought the following morning?”
Social Worker: “The following morning was a Saturday.”
Judge: “Was he not brought to a GP?”
Social Worker: “No. Attachment was assessed.”
Asked by the judge why the child had not been brought to a doctor or hospital, the social worker said the foster carers did not think it was an emergency. She said she attributed the incident to a response to access at that time.
The judge asked her what expertise she had to allow her to reach such a conclusion, and she said she was a professional social worker.
Judge: “How can you come to that hypothesis without going to a doctor and seeing if there was a medical reason for it? Enlighten me and assist me that was a reasonable course of action taken by you”.
The social worker said the foster carers reported behavioural issues for up to five weeks after access. There were also episodes when E began pre-school but that was a new chapter in his life. He struggled with the routine within pre-school.
She told the court that E’s access was reduced to fortnightly in September 2014 because of his behaviour after access, and his access was separated from his sibling group. It took place initially in the social work department, but was later moved to a play centre where he could run around. He did not have much interaction with his parents there. The distressed access visit occurred in November.
The social worker said an updated attachment assessment was sought at that time, but the expert was not in a position to do it. It was sought because of his behaviour post-access. She told the court that his attachment to both his parents and the foster parents would be accessed.
The social worker said the attachment expert became available in September 2015.
Judge: “You had concerns in November 2014 and you left it to September 2015 to follow on. You must not have been that concerned.”
Social worker: “I was concerned.”
Judge: “What about the trance-like states?”
The social worker said they did report him going into those states in times of stress but these were more regular around access.
Judge: “This is like extracting teeth trying to get some of this evidence. I have had forensically to examine trance-like states in order to get this. Will you look at Section 3 of the Child Care Act and the CFA’s obligations? This information should not be given on cross examination. All of the information has to be presented to court because of the repercussions of such a case. I may as well read the report, ask questions and make everybody else redundant.
“On 17th July 2015 there was an issue with access, prior to that there had been access every fortnight. What took place on 17th July 2015?”
Social worker: “It was reported to me by the foster carers that immediately after access E became aggressive towards the foster father in the car. There were episodes of sleep disturbance, being physically aggressive, emotional, sobbing and apologising, toileting accidents. These behaviour concerns started after access.
“On the Tuesday E had a conversation with the foster carers where he said: ‘Mummy makes me sad’, not the foster mummy but the other mummy, ‘because she scared me and the boy – the other daddy.’
Asked why, he said: “The other mummy is waiting at the house for me.” The social worker said the foster carers reassured him that they don’t know where he lived, saying, “you are safe here and I won’t let anyone take you away.” He said, “not this house, the other house.”
The social worker told the court that a week later she discussed the foster carers’ concerns. She was worried that a conversation took place at access with E about him returning home, and that caused the upset behaviour, although the mother denied it. In consultation with the team leader and the GAL access was suspended.
A meeting was held on 19 August where the GAL suggested contact in the form of a card to send the child a message of reassurance. The social worker said an attachment assessment had been arranged in order to make a recommendation about access. The mother wrote a message, but the social worker said she would like them to write that they knew he was safe with his foster parents.
The judge said it was not the CFA’s job to take advice from GAL, they should refer to court and let the court make the final decision. Asked what was the wording on the card, the social worker replied: “Hello [E], Mummy and Daddy are thinking of you. We hope you are having fun playing outside and inside with your toys. This card is bringing our hugs and kisses. Mummy and Daddy.”
Judge: “What did you want her to include?”
Social Worker: “Playing with [foster parent’s names].”
Judge: “Was that unreasonable?”
Social worker: “No.”
Asked if the card had been sent to the child, the social worker said not straight away but it did go, two months after the incident and the suspension of access.
Judge: – “Two months from the suggestion to it being sent. Why?”
The social worker said she had a number of discussions with her team on the issue. Also the parents had an issue with her and had been advised not to meet her unless necessary, and also refused to meet the team leader at the time.
Asked how the child reacted to the card, she said he was excited by the stickers, he placed the card on the table and put books over it.
An access was then arranged for November 14th, with the attachment expert present. Further access meetings were arranged on December 30th and January 16th. The attachment expert recommended that access be every six weeks.
Asked how access had gone, she said E ran to his mother and then chose to play a loud active game, involving a lot of running around. He appeared dis-regulated.
Asked if she observed any positives, the social worker said the parents were always prepared with games and toys and rarely if never missed access. Asked why access with his parents and siblings was stopped, she said she was unsure what was causing the problems and did not know if it was the presence of the other children. He had informal access with his siblings facilitated with foster parents about every two weeks. This went very well.
She said E was in pre-school and was doing well. He had a full-time SNA because of his behavioural difficulties. He was running around and confined himself in boxes. He also had speech and language difficulties.
The social worker then outlined the situation of the youngest child, F, who had suffered the injury prompting the care proceedings for all the children. She was in the same foster placement as her older brother, and there were no concerns about her development. She attended playschool two mornings a week and was very happy and chatty.
Asked about the circumstances leading to the children being taken into care the social worker told the court that a report came back from Temple St hospital in mid-January 2013 saying there was no fracture, and the child, then a young infant, was discharged from the local hospital as no treatment was required.
Asked why reunification was not considered at that time, the social worker said it had been a significant injury for which there was no explanation. In addition they had feedback from foster carers about the older boys and further assessment was required.
Asked about interviews with the parents about the cause of the injury after January 2013, she said she visited the family home and spoke to the father. Asked if any feedback was given to the parents about the concerns about the older boys, she said she would have to check during the recess.
The social worker said that a parenting capacity assessment had been made by a psychologist. The judge stressed that any documents relating to the parenting capacity assessment needed to be given to the parents’ representative, which should have been received in preparation for the hearing.
After the lunch break the court was told that, due to the problems with documentation, the barrister for the parents could not assess if all the proofs existed when the decision was made to take the children into care in January 2013.
Turning to the parenting capacity assessment, the social worker said that parenting work had been done with them, and the mother told the social worker that she had done a similar course where she had lived previously. The family support worker thought she had not retained the advice provided. The social work department contacted the social work department in the area where the family previously lived, and were told that there had been a number of referrals. The first referral had arisen because the oldest boy [C] had been circumcised in a non-medical setting and the qualifications of the person were unknown.
Social worker: “We were obliged to look at the history, looking at the overall picture and the historical information and the unexplained injury to [F] and the presentation of the children when received into care and their behaviours. We thought they were as a result of cumulative harm while in the home.” The reports from the other area were provided about six weeks after F was injured.
Judge: “If she says cumulative then the matters [from the other area] were relied upon on the basis that it was setting a context in relation to F’s injuries and the [other children’s] behaviours. If the family had been in [this area’s] care would they have been taken into care?”
Social worker: “If you took any one referral in isolation I don’t think any one of them on their own would have resulted in the children going into care. I would have concerns when you look at the overall picture and the multiple referrals and the multiple concerns.”
She said that the concerns relating to C arose from the mother’s describing his problems, including suspected autism, dairy intolerance and fibromyalgia. The social worker was concerned that C had no medical intervention for these conditions, and now that he was in care he had none of these conditions.
Judge: “What’s your conclusion?”
Social worker: “It is my opinion that the mother attributed these issues to the children in an attempt to deflect from her parenting ability. There have been inconsistent levels of appropriate parenting historically and as a result of that C was presenting with some of these issues. But it was her way of deflecting her inability to parent consistently.”
Judge: “What you are asking is for an order under section 18(1)(c). If the children are returned home can you outline your concerns?”
Social worker: “We don’t know how F sustained a serious head injury at three months old. In the absence of that information we cannot put safeguards in place to ensure that does not arise again in the future. The children presented with various issues when they first came into care. The issues in relation to D have diminished. I would have concerns in relation to the emotional impact on the children if they were to return.”
Judge: “On what basis?”
Social worker: “I believe [the mother] has not accepted her parenting has an impact on the children and parenting work was carried out. She was not able to take on the advice fully and therefore would not be in a position to parent in a protective and safe manner in to the future.”
Judge: “So you’re talking about emotional impact.”
Social worker: “I believe there is emotional neglect.”
Judge: “But you haven’t said anything in relation to the father.”
Social worker: “It is [our] view that the father has been unable to take advice on board through the advice and parenting work provided.”
Judge: “If the parents had implemented the parenting work then they could be returned?”
Social worker: “Yes, if they showed the ability to take on board the advice and follow through with that advice in a consistent manner.”
Judge: “What if they were to do that now?”
Social worker: “It is my view that there have been issues stemming back to [the other area] and those issues were not resolved when they moved [here] and I don’t have any evidence that they would be in a position to carry out a parenting role with these children in a predictable, consistent and safe manner.”
Judge: “Is there a gold standard of parenting?”
Social Worker: “We would have certain expectations but no written standard that I’m aware of.”
Judge: “The courts have been specifically warned not to socially engineer. It’s not a matter for the court to deem there is a gold standard.”
Social worker: “I know that but I do have concerns.”
Judge: “What would have to happen for reunification to take place, in your view?”
Social worker: “The parents would need to accept that there are issues with her parenting and that it has impacted on the children. I don’t know if she is able to do that and I’m not a psychologist and I don’t know if there are other issues in terms of her ability to change. I’m at a loss as to how to answer the question, to be honest.”
Judge: “You are statutorily obliged to consider it at all times.”
Social worker: “And we did consider it.”
Judge: “When?”
Social worker: “It is always on the cards… [The family support] worker considered it as part of looking at support for the parents in order for the children to return home.”
She said that recommendations were followed through by the social work department, but observations during access indicated that the parents were not able to consistently carry out the tasks recommended.
The judge commented that this was from observations in an hour’s access, and asked if it was the practice that access was normally for one hour for families with children in care. The social worker said it generally was. She said the issues in this case were considerable, including the children’s presentation in foster care and following access. She said she had referred the issue up to her manager.
Asked what would have happened if the baby’s injury was just a bruise and not a suspected fracture, she said she would still have been concerned with an unexplained head injury. Asked what she meant by unexplained, she said there were no details as to how the injury occurred.
Judge: “What if someone doesn’t know what happened?”
Social worker: “I would expect with a child at that age, someone would know. She wasn’t moving, she couldn’t move herself.”
Judge: “What if D had let the child fall?”
Social worker: “That’s something we considered and the concern is the level of supervision of the children within the home.”
Judge: “If you set that as a standard then we are going to have a lot of children coming into care. If a mum goes to answer the phone a child would have been unsupervised.
“There is a question of proportionality, as to whether these actions needed to be taken in relation to F. There are other issues which came to light with the presentation of the other children when they were in care but at the point when they were taken into care F was going to be in hospital that night. How proportionate was it that the other children were taken into care?”
Social worker: “I did not make that decision on my own.”
Judge: “But the mother thinks one of the children might have let the child fall. The hypothesis is the child fell or hit against something or was hit. There was a trauma of some nature which caused bruising.
“The evidence was that there was no explanation given for this injury. There was an explanation put forward but that was not proffered as an explanation for this injury.”
The judge asked the social worker if she considered the children’s presentation to be the result of the parenting style, and she said she did. Asked if she was an expert in interpreting children’s behaviour and presentation, she said she was not.
Judge: “If the children present in a manner that gave rise to a concern, how does one interpret that? I will have to decide the case on two elements – the injury to F and the presentation with difficulties when they were taken into foster care. How do I decide that the behaviours are attributable to the parents – what evidence do I need to interpret how these children reacted?”
Social worker: “From my evidence.”
Judge: “Have you the expertise to say that because E goes into a trance-like state or acts out after access that that is as a result of his parents? Why were there were not child psychologists in this?”
Social worker: “[The children] were referred but not seen.”
Judge: “They were not even assessed.”
Social worker: “Not until these proceedings are finished. There is a long waiting list.”
Judge: “I am continuing to flag this question – am I expected to come to conclusion on the evidence that is presented about whether their behaviour and presentation is because of the parenting, or does an expert need to be called to give evidence if that is as a result of the parents or if there could be another explanation as to their behaviour? I cannot understand why assessments were not carried out. I haven’t had any section 23 applications made to me yet. Cases like this are not straight forward but the decision that I make has huge consequences for the children and the parents.
“The GAL recommends a psychological assessment should be carried out. There should be an assessment of the individual needs of each child, if they have been met, if they have not, then are they of an organic nature or care-based? An assessment of the supports required for each child based on their needs and whether or not the parents can meet those needs, if there is a deficit then how can they be supported. It is a two-stage assessment.”
The judge asked that a clinical psychologist be identified overnight and contact made to see what time-scale was involved in assessing the children, and an assessment of the children’s needs and whether the parents could provide for them. The case should be adjourned in order to have these assessments. He said it was not the best way to run a case, but it must be run in the interests of the children.
The barrister for the CFA said it was in agreement with the suggestions made and was proposing an extension of the Interim Care Order for three months, to be agreed between the parties.
The guardian ad litem (GAL) had identified the names of three psychologists. Whoever undertook the work would observe the children and the parents together.
The judge said if the parents do not see the children regularly he was of the view such an assessment would not be very accurate. “Everyone is a bit on edge.”
He said the parents should have access to all relevant documentation, and added that he needed to know how many days were left in the case.
The case was adjourned to the following day, when the judge said he had a template letter of instruction which he had emailed to the registrar. “I’m not saying you have to use it but it would make sure all parties are treated fairly.”
Referring to a draft letter of instruction sent to him, he said the history included in the letter was wrong. The children had been taken into care because of a suspected fracture and not because of the history, which only came to light later. The parents should be able to write to the specialist outlining their position.
Two experts were nominated and a deadline of May set for the completion of the reports. Following further discussion on dates, it was agreed the case would resume in July. The CFA sought an extension of the Interim Care Order (ICO) and the judge said he would grant it, as the threshold was lower for an extension of an ICO. He said because he was hearing the case and had heard the CFA case at its high point this evidence would not be given again.
The case was then adjourned for five months.
Four months later the CFA made a Section 47 application to the court concerning access for Child D. However, the application has been superseded by disclosures from the child, the first in January 2016 and the second in March 2016. The judge indicated that he has not yet read the affidavit setting out details of the disclosure.
On foot of the disclosure, a section 16(1)(b) application was made to permit the video-recording of the child’s interview by a Garda as evidence in any future trial. A discussion followed on how the credibility of the child’s disclosure will be assessed for the purpose of the care proceedings. The CFA noted that it will be undertaken by a specialised unit. The judge asked “what is a psychological credibility assessment? Am I not the credibility assessor?”
As part of the care proceedings, the children were due to have their therapeutic needs assessed by a psychologist. However, this assessment had yet to take place.
A discussion took place on the sequencing and timetabling of therapeutic support by another psychologist for Child D following the disclosure. A question was raised as to if and how the work of this psychologist would feed into the broader assessment of the children by the other psychologist and if it would delay the care proceedings. It was felt that the first psychologist would need the whole picture to complete his assessment of the children and so should get a report from the second psychologist.
Concern was raised by the mother’s barrister that if the timetable for the case is to follow the child’s therapeutic support under the second psychologist then there is no timetable, and this is not appropriate given that the children have been out of the care of their parents for a long time. The judge agreed that the case “can’t be left open”. Once the Garda interviews are over, the psychologist will begin work with Child D and then there will be a better idea of the timeframe.
It was agreed that the therapeutic support and the assessments would be done consecutively – that the two psychologists would adopt a twin track approach. The first psychologist can hold off on his final conclusions until he has seen everything. Once the Garda interviews are concluded in late May, the second psychologist can begin therapeutic support with the child and the first psychologist can undertake the assessment of the children in June and July. The finalisation of this report will take a further six weeks.
The mother’s barrister asked to see the report from the therapeutic psychologist before it is given to the credibility assessing psychologist. The terms of reference for the assessment by this psychologist were carefully crafted. There was concern that the therapeutic psychologist’s report would include hearsay evidence not given in court.
Everyone agreed that the case could not be heard in the last two weeks of July. It was agreed to adjourn the case until June at which time a new date be fixed for the hearing as by then the Garda interviews will be completed and Child D will have seen the psychologist for therapeutic support.
The judge commented that this is a case at hearing and it needs to be progressed very soon. He noted that it needs pressure to make progress. The case will be approaching its first anniversary when finally heard.
A professional had been engaged to undertake an independent assessment of the children in relation to access. The mother wants access to be reviewed as she is only seeing her youngest child (F) every six weeks for 45 minutes. The mother’s barrister noted that the allegation that the child was “dis-regulated” around access did not take into account that the child is also “dis-regulated” on other occasions that have nothing to do with access.
Her husband had in effect no access with the children. He was anxious to have access but was conscious of the need not to interfere with the Garda investigation. Child C expressed a view that he wants access. He is aware of the allegations by virtue of where he lives. Child D wants access with his siblings.
The GAL commented that she felt it was appropriate that the husband would have no access to the children until the Garda investigation is concluded. She also noted that the children have very different needs and so an independent assessment of access would be important. The judge raised the question as to how one can assess access when access is limited or there is no access. In relation to the Section 47 application for Child D, the judge ruled that access with Child D be dispensed with.
He said he was directing the reports on his own motion under Section 27 of the Act and lifting the in camera rule for the purpose of preparing the reports. He stressed the importance of all parties cooperating in the preparation of the assessments, “My concern is the health and welfare of the children and it is important that everyone cooperate with this independent report.”
The case was then adjourned until June to set a date for the full hearing.
