Summary
An Emergency Care Order (ECO) was granted in the District Court for a teenager from another jurisdiction who had been living in the care of her brother in Ireland for seven months. They were both originally from the other jurisdiction and their parents were living apart in two different countries.
Her father, who had custody of the girl, had consented to her brother acting in loco parentis. Initially the teenager had come to visit her brother in Ireland for two weeks but she then asked to stay on. The ECO had been brought by the Gardaí due to physical discipline by her brother which they felt was excessive and constituted an assault.
Before coming to Ireland, the teenage girl (A) had been living in a compound. Her brother now had full the responsibility of his sister and her living costs. When she had broken curfews and stayed out until the middle of the night he had hit her. He contested the ECO application, telling the court: “There is no immediate threat to her whatsoever, I am more concerned about her safety than anybody else in the country, I can tell you that.”
Granting the ECO, the judge found “on one incident the level of violence described [by the brother in court] falls into the category of physical abuse as defined in the Children’s First Guidelines.”
The hearing
The social work report stated that A had said she felt safe living with her brother and did not plan to remain friends with the girls who had pushed her to break two rules her brother had put in place. She was currently in emergency foster care and was not aware of the Emergency Care Order application.
The Garda who had invoked S.12 late on the previous Friday evening told the court that he had first become aware of the brother and sister when social services asked him to attend a meeting one evening earlier in the year. He was a community sergeant and a liaison person for the HSE/CFA. The issue was that she had been assaulted and was scared of what was going to happen and what had happened. The brother [B] had hit her with his open hand over the back of the head.
The Garda explained to him “that type of conduct was unacceptable and there were ways of dealing with young people”. He asked him not to engage in physical violence even if his sister went outside his rules. “He gave a commitment he would look after his sister and there would be no more outbreaks or dragging her around.”
Social services were going to get involved in helping him with his parenting skills and the school was also involved. He had no further involvement for seven weeks until he received a phone call the previous Friday evening from the social worker.
“She was at [X] hospital, for the purpose of bringing [A] there for an x-ray to see a doctor, her brother had come in and taken her forcibly and left the A&E in a very agitated state with her, she was very distressed.”
The social worker believed they were going home. The Garda said he “called up to the apartment, gained entry, found her in an alcove in the sitting room, behind a curtain in a petrified state, the female guard went in and she ran to her, she was glad to see somebody”.
The Garda said that when he arrived at the apartment her brother [B] had told him A was not there. However the Guard said he was fearful for her safety and went in to search. B became extremely agitated, annoyed and highly confrontational.
He removed A from the apartment and brought her back to the hospital to see the medical team. Social services were with her, her brother had already arrived there and the Garda could not bring her in as a result of his previous conduct, so he brought A to the Garda station. The brother engaged in confrontation with the social workers and the Garda rang for assistance.
He said B was saying something to her (in a different language) and “she was petrified. As a result of what he was saying it had a detrimental effect, the blood just drained from her, whatever he was saying was very serious.”
Another issue that concerned the Garda was that A “was living behind a curtain situation” in the apartment. She had a rolled up mattress behind the couch with “a curtain thing across the front of it, there was a chair, a locker with personal property in it; that was her bedroom/living area in the house.”
The Garda said when he had been called to the first meeting eight weeks ago the issue was around discipline and parenting, so they tried to tease out the issues, to try and put a structure on it. It was not easy for siblings to parent, it would be difficult. “She was staying out late and not coming home when expected, that was the flash point.”
Her brother was given advice at the meeting by the social workers as to how to best parent a young person and he understood they would keep an eye on the family unit. The girl was told she could contact the social workers and Gardaí if she was in difficulties. She had not contacted them.
From the incident that occurred the previous Friday the Garda believed there were “reasonable grounds for believing there is a serious risk to the health and welfare of the child.” His concerns were that he was not told the truth – he was told A was not at the apartment. B had been very angry, he was concerned at the way B spoke to his sister and she was cowering in the alcove.
“How do you know she wasn’t cowering from you?” asked the judge. The Garda said that he had dealt with her before and she was able to refer to him by his first name, she was not scared of him. “She was delighted to see the other Garda and literally went into her arms.”
Judge: “The solicitor said you pulled back the curtain and she was frightened. You have no way of knowing what she was frightened of.”
Garda: “That’s correct.”
The brother’s solicitor said there were absolutely no reasonable grounds for believing she was at immediate risk. The Garda did not agree.
He said her brother was agitated up at the hospital before he saw the Gardai, he had “uncontrolled rage. The way he’s dealing with her the girl is scared of him, I cannot walk away from that,” said the Garda.
The social worker
The social worker told the court that A had been hit on the head and neck area by her brother, she had informed the school and a meeting had been held eight weeks earlier. Her brother “was very clear he couldn’t take away the threat of physical discipline as he felt it was the only thing that would work. They talked and he said he wouldn’t do it again.”
The social worker put in a family support referral, and a family support service worker had begun to call into the home once a week.
Another incident had occurred a week ago and B had slapped his sister on the face and three times on the back of the neck.
The court heard that A had gone to a party, she had given her brother a false address, one of her friends had rung him to say she would be back the following morning and told him to go to sleep. A’s phone was off. He drove out to the flat where the party was on and eventually she came out at 4 am after he kept ringing her friend.
The social worker asked the girl if she felt safe staying with her brother, she said she did and she would desist from staying with friends who were getting her to push the boundaries.
The social worker told the court she was concerned as to why B was hitting the girl, he was not controlling his emotions and impulses. They talked and he agreed to engage in work around that. “He acknowledged his issue around anger and he agreed to attend a primary care psychologist.”
The previous Friday the social worker and team leader had brought A to the hospital for an x-ray due to back pain, while they were waiting they then decided to suggest foster care to the brother for the weekend, as weekends seemed to be the difficult point for him and his sister. They contacted B on his phone. When she suggested it to him “he cursed at her and said she’d never see [A] again, he arrived at A&E and told [A] to leave with him”. At that point she contacted the Gardaí.
She was concerned that the physical assaults perpetrated on the girl by her brother were due to a lack of impulse control and volatility on his behalf, which posed a real risk to her if returned home. There were no other reliable adults to put a safety plan in place. They wanted to get psychological support for the brother to address anger and impulse control.
The plan for A was for her to remain in foster care and to contact her parents about her care.
The social worker told B’s solicitor that on the weekend of the incident where B had hit his sister in the car, he had rung her [the social worker] the next day, asking her to come to the apartment for a meeting. However she had her phone switched off as she did not work over weekends and did not get the message till Monday morning.
“This is an emergency situation which began on Friday and everything shuts down until Monday morning?” asked the judge.
The brother’s solicitor put it to the social worker that it would have been preferable to have suggested in person to B regarding his sister going into weekend foster care, rather than calling him on the phone.
She told the court that had called the Gardai because she was concerned at the level of the brother’s agitation at the hospital, he was very heightened, given the previous knowledge of him hitting his sister when agitated she felt he could hit her.
The team leader agreed with B’s solicitor that “the kernel of the problem was the position of responsibility that he has, he needs help with it.” Although they were referring B to a community psychological service, when they had suggested weekend foster care to B there was no long-term plan for A, and they did not know how long it would take for B to get an appointment.
The hearing continued the following afternoon. The social worker had met with A for the first time since the previous Friday evening. The foster carer had told the social worker that on Saturday A had run away from the house because she was not allowed to call her boyfriend. The foster carer had got into her car to find her and when she caught up with her told her she would have to call the Gardai if she did not come back.
Brother’s solicitor: “Do you accept [A’s] response to boundary-setting is extreme?”
Social worker: “No, I wouldn’t call it extreme, she definitely pushes the boundaries. She obviously wanted to get her way and contact the boyfriend.”
Brother’s solicitor: “I put it to you that this is very worrisome behaviour, very difficult to handle.”
The social worker agreed it was difficult and had acknowledged that with B. However the foster carer used her skills to get her to return, had spoken softly and said she would phone Gardai, said the social worker.
The judge pointed out that calling the Gardai was not something that was open to the brother.
Judge: “You know and I know the reaction of the Guards – have you any experience of Gardaí responding to desperate parents looking for their [teenagers]?”
She had not.
Judge: “The skill that was applied here, is ‘I’ll call the guards if you don’t come home’?”
SW: “Yes.”
B’s solicitor asked for a direction that the threshold had not been met, her client was willing to give evidence. He had “conceded he’s slapped, it’s wrong, he will learn the necessary skills, he has rung the guards when she went missing and got a predictable response, there’s no dispute about what the issues are but [there is about] how the dispute is to be solved”.
A’s brother told the court that issues relating to boundaries had first started when she had gone out till 3 am and was meant to be in at 11.30. She did not contact him to tell him she would be late, she had gone missing. He rang his parents to tell them and he rang the Gardai at 1 am to report her lost. He was concerned and upset, the Gardai came and took a report and said they would investigate it. By 3 am she turned up in a taxi herself.
“She did not take it seriously or listen.” That was the night he first slapped her. Later on she started crying, he said he wanted to talk about it, “everyone was crying”. He agreed slapping her was not the right way to deal with it. He apologised to her verbally and by text.
He slapped her a second time when she came home four hours late. Following that he attended the meeting with the Garda and social worker eight weeks earlier. He accepted what he had done was wrong but he felt that the social workers “had overlooked the fact she had been doing a lot of problems. They were very biased, whatever I did was wrong”.
It was not explained to her in his presence breaking curfews was wrong, he said. He told the court that she continued to break curfews when she went out. The weekend of the main incident there was a birthday of one of her friends, she told him two different locations of where she would be. He tried contacting her at 11 and 12 pm. Her phone was not charged.
“At 1 am her friend rang and said: ‘Go to sleep, she’ll be back tomorrow, she’s having a great time.’” He later spoke to her on her friend’s phone and said he would collect her but she would not give him the address, he said he would have to tell their parents.
At 3 am he got the address after a couple of calls, and waited. She came out at 4 am. He told the court that he started driving back, “at first I started talking to her, her demeanour was unacceptable, she said I was a blockage in her life to enjoy her life,” he then slapped her on the side of the face.
He wanted to go to the Gardai, to make a complaint against her, she went in with him. The Gardaí said they would take a report, but they could not do much, so they left. He told the Gardai he had slapped her and had said: “Please tell me what to do now because she’s out of control.”
She said in the car maybe she should return back to [their home country] so he brought her to the airport but then they turned back. They got home at 6 am. He apologised to her the next day. He rang the social workers but their phones were off, he had wanted them to call over.
He told the court he would now promise not to slap her again, he “100 per cent meant it”. He did not break promises. He understood that he would get useful help now from the CFA. “I didn’t get any help personally,” he told the court, the family support worker’s main objective had been to talk to his sister for 30 minutes a week but there were “no real recommendations or anything directed towards me.”
His solicitor put it that he was in an unusual position having to parent his teenage sister.
Brother: “There are different kinds of [teenagers], she’s a difficult one.”
He said she had never been to parties in [their home country], or gone around the city, she was now going to parties with people she did not know, “she doesn’t know what is not safe.”
He was certain he would not slap her again and he wanted her to come home. “There is no immediate threat to her whatsoever. I am more concerned about her safety than anybody else in this country, I can tell you that.”
He told the court that he understood physical abuse was not acceptable towards a child and that it amounted to a child protection concern. His family were “also in agreement that it was not correct to slap.”
He told the CFA solicitor that he had called the social workers on other occasions to seek help, on one incident A had been planning to go away for three nights without his permission and the social worker had called the school for him.
He said had not been given any formal advice at any time, just “you can do everything else, just don’t slap her.”
Was any consideration given to returning her to whence she came? He had considered it but it would not be a light decision, it would be a failure on everybody’s part.
Decision
The application was under section 13 of the Child Care Act after section 12 had been invoked by Gardaí.
The judge said he had “reasonable cause to believe” he may make the order. There was “fundamental evidence of three incidents in approximately seven weeks where violence occurred between [B] and his sister of whom he is in loco parentis.
“I found his evidence to be quite frank and I don’t have any reason to doubt anything he said to me. On one incident the level of violence described falls into the category of physical abuse as defined in the Children’s First Guidelines.
“I am aware from evidence there have been a number of meetings and discussions, while [B] agreed it was inappropriate he was nevertheless reserving the right to use it in extreme circumstances.
“I accept the evidence of [the Garda] and the social worker that such violence should not be used in family discipline in control of boundaries and up until now that advice was accepted. I’m not satisfied that the assurance he has given to the court in the course of the evidence is sufficient to protect the child from immediate and serious risk if returned to his care, under certain circumstances he might resort to that violence.”
The judge said he was stressing he was “making the order on the basis of the threshold for section 13, it’s not for me to direct an application if any further application is to be made.” He felt that an application for an Interim Care Order (ICO) based on a plan to refer the brother to a primary care psychologist, with no outer limit as to when he would receive therapy, would not be an appropriate plan.
“It is the duty of the social work department to seek out the least interventionist approach, I’m not suggesting any application should be made on Friday [when the ECO would expire], there are other applications that could be made. Section 6 of the Domestic Violence Act is one that occurs to me. If asked to consider an Interim Care Order [one] has to consider the long-term interest of the child.”
The CFA applied for an ICO when the ECO expired. The judge joined A as a notice party to the proceedings and appointed her a solicitor. That week the girl had threatened self-harm saying she wished to return to her brother. The foster carer had brought her to a GP who had referred her to a psychiatrist. The psychiatrist’s opinion was that it was attention-seeking behaviour on A’s part.
In relation to the ICO, the judge found that while the threshold had been met, on the basis of proportionality it was not in the child’s best interests to stay in foster care and he therefore did not grant the application.
Immediately after the hearing the brother and sister disengaged from the CFA.
