Summary
Interim Care Orders were granted for four children in a rural town after over 20 adjournments of the proceedings over more than six months. The mother was pregnant with her fifth child during the case, and gave birth by emergency Caesarean section days before the decision on the Interim Care Orders. That baby was then taken into care on foot of another Interim Care Order.
During the case the judge appealed for the setting up of a specialist family court on a pilot basis in his area in order to deal with the high volume of family law cases that came before him.
Both the mother and her partner, the children’s father, had spent considerable time in care themselves and did not have extended family support.
The children, ranging in age from 18 months to five years, included the eldest who had an intellectual disability and challenging behaviour. The children had been in voluntary care for eight months when the proceedings began. The mother admitted she had difficulty in coping and the house was cold and very untidy.
When the parents revoked their consent to the children remaining in care, the HSE applied to the District Court for Emergency Care Orders on a Friday but the judge refused the application and the children were returned home. However, the HSE applied for Interim Care Orders on the following Monday and another judge, having heard evidence at a day-long hearing, including evidence of sexualised behaviour on the part of the two older children, granted the HSE application and the children were returned to their foster carers.
The case then came before the first judge (who had heard the Emergency Care Order) for the renewal of the Interim Care Order. However, this hearing was adjourned over 20 times over the following six months before concluding with the children being taken into care under Interim Care Orders in order to have them assessed by St Clare’s, a specialist unit that deals with child sex abuse.
In making the Interim Care Order, the judge directed that the unit be provided with the details of all the adults in contact with the children since their birth to get to the bottom of the reasons for the sexualised behaviour.
During the hearings the court heard from access workers, social workers and the foster carers about the sexualised behaviour of the older two children. The children were examined by a psychologist and by a doctor specialising in the physical aspects of child abuse, but no evidence of sexual abuse was found. The parents’ barrister argued that such behaviour could be self-soothing, quoting an academic textbook on child and adolescent psychology, but no further evidence was brought forward for this and the judge said he did not want to hear evidence other than from the specialist child abuse unit, St Clare’s.
He extended the Interim Care Orders, during which the causes for the sexualised behaviour of the older children are to be explored.
A full Care Order will also be sought, allowing for the children to be taken into care until they are 18, or for such shorter time as the court may decide.
An Interim Care Order was also granted by a different judge for the new-born baby, who was born as these proceedings were concluding. This judge also extended the Interim Care Orders for the other four children at a day-long contested hearing.
The Hearings
Interim Care Order Proceedings before First Judge
First social worker at Interim Care Order hearing
A social worker with the HSE who had been allocated to the family over a year and a half before the proceedings said the mother had raised a query over the paternity of the youngest child and had said the child’s father might be an individual, related to her, who had killed his mother and had recently been released from a mental hospital. She said the mother said she was struggling to manage the challenging behaviour of the eldest child, A.
The parents were offered respite care and the children were medically assessed by a doctor on behalf of the HSE. The doctor said that while A’s physical development was normal his behaviour was not normal due to psycho-social deprivation. The doctor noted speech delay in children B and C. There was an absence of appropriate stimuli around the children’s environment.
The social worker said the parents initially engaged very well with the HSE and they cooperated with the assignment of a family support worker but, after the birth of D, there was a significant shift in engagement by the parents. The parents became more defensive. The social worker was conveying concerns about the parents’ lack of parenting skills. The outcome of early assessments was that the children were being neglected.
A was unsociable and difficult to engage. The social worker had difficulty in understanding his speech. He had poor language skills and his walking skills were also poor. He was not toilet trained. She believed the parents were lacking in parenting skills and it was very difficult to get a sense of any routine. In terms of housing, the mother told her the family had moved house over twenty times.
She described the house where the family resided as grubby and having a lot of clutter. There were two dogs in the house which was very cold. Heating, she said, was a significant issue and one’s breath was visible on a number of occasions. There was no oil in the central heating tank but there was an ample supply of coal and sticks which had been supplied by the Society of St Vincent de Paul.
A report from an environmental health officer had expressed concerns about the condition of the family home. The mother had attended a case conference to formalise a child protection plan. This had taken place a year previously and she had agreed to work with the HSE and the family support officer. The mother had expressed a concern about things spiralling out of control.
The social worker said that there were ongoing concerns about the welfare of the children. When she visited the house, the living room was cluttered and the bedrooms were not customised for the children. Initially the parents had one dog but they got a second one and they were roaming around the house. During one visit she noticed that one of the dogs was playing around the infant, D. The father had said the dog was protective of the infant. The social worker said the mother at times accepted the concerns which she expressed to her but the father was defensive. A group parenting course, which would have been beneficial to them, had been offered but the parents declined to participate. The children were in pyjamas at various times of the day.
At a case conference earlier in the year, it was recommended that the four children be taken into voluntary care and a phased transition plan was implemented. The HSE aspiration was that the parents would work on their parenting skills and it was hoped they would be ultimately be reunited with their children. The parents initially consented to the plan and agreed to work with the HSE. There had been a number of traumatic access sessions. As the second access meeting was ending, A had referred to his foster parents as mother and father and the child’s mother had become very irate and aggressive. She had subsequently apologised.
The barrister representing the parents said the parents had heard for the first time that day that the possible father of the infant D had murdered his mother and there was no reference to it in the social worker’s written report. The social worker said she had not been allocated to the family for the previous six months and, at any rate, it was the mother who had initially raised the question of the paternity of the child.
The barrister said the parents accepted that they were both the real parents of D and she asked what was the purpose of bringing up the matter at this hearing. The social worker said the mother was the first one to raise it and the barrister said the mother was only concerned about the fact that the other individual was being released from custody. The social worker disagreed and said the mother had stated either person could be the father. The judge said he did not believe the identity of the father was of relevance to the HSE Interim Care Order application.
The social worker said the mother had been abused and put into care at the age of 13 and she was very concerned that her own children would be put into care. The parents had not shown any improvement in their parenting skills and the absence of a routine in the home was very stark. When she said the neglect of the children was chronic, the parents’ barrister said there had been no allegation of neglect from the doctors. “How can you say it was chronic?” she asked.
The social worker said her concerns were that the children were not progressing as well as they should have been. She was concerned about the parents’ ability to stimulate the children. “Collectively everything amounted to chronic neglect,” she said. She had been calling to the house once, sometimes twice, a week and that was what she was basing her recommendations on. She told the parents’ barrister that a Supervision Order was not sought as they had no difficulty with access to the children at the house.
Family Support Worker
A family support worker with eighteen years’ experience gave evidence that she had visited the house on eleven occasions during the previous year. Her role was to visit the parents and provide support for them in the development of the children.
Her observations of the family home were that it was cluttered, dirty and smelly. The dogs appeared to have the free run of the house which was very cold. When the fire was not lit, the grate was full of take away cartons and plastic goods. “I called in the mornings and afternoons and most times the children were wearing pyjamas.”
The children appeared cold, B had a wet nappy and they appeared dishevelled. “Their basic needs appeared to be neglected,” she said. She had spoken to the parents about the importance of routine and the need to get the children up, washed and dressed in the morning. She made out a routine chart giving assistance and advice on what to do in each room. It was a basic tool helping parents with routines at different times. She had been giving the parents oral advice but nothing was happening.
When she called to the house on the Sunday before Christmas 2012, she noticed the sitting room and kitchen were in disarray and the hallway was also very cluttered. A table and couch were full of clothes, the sink was full of dishes. There was no fire lit and the entire family were in their night clothes. The house “was freezing. Nearly every time I went I was presented with the same picture.”
She said the mother accepted her concerns but the father never took the concerns seriously. “He felt I was an inconvenience and the father once said he was being dictated to in his own home. I believe if they took my concerns on board, there might have been some small improvements.” She said the mother had told her she didn’t like to have the children dressed as it would dirty their clothes. Some of the children often had extremely wet nappies.
She described one visit during which the three older children were upstairs. She heard B and C crying. Both children were in pyjamas and their socks and nappies were soaked. The children were very cold and their hands were red. A was physically shaking. He was wearing a heavy nappy which was down to his knees and he told his mother that his hands were cold.
She said she had many conversations with the mother about food. The mother said she liked to cook but she had never seen a meal being cooked or presented to the children. They were given biscuits and fruit. The television was on a lot with loud music and talk shows, with children’s programmes very rarely switched on. She had told the parents it was hard for them to communicate or encourage play with their children if the television was on all the time and the father said he was being dictated to in his home.
The witness said that she supervised the access sessions when the children were taken into care and she noticed an almost immediate change in the children’s presentation. She said that A had “blossomed” and seemed much happier. His social skills had improved and he had begun to speak. B’s speech had also improved. C had started to walk within a few weeks of going into care and D had taken a few steps. The children seemed very content in their placements.
She said the mother had been in her pyjamas during an afternoon access visit to her home and the children had to ask for their toys which were in a shed. The children had made huge strides and she feared that, if returned home, they would lapse. Their basic needs were not being met when they lived with their parents.
Access worker
An access worker with the HSE said she had also noticed that the mother was in her pyjamas during access visits with the children in the family home and she said she felt the parents were not aware of the children’s basic needs. She referred to the lack of tidiness in the kitchen and referred to dishes being all over the countertops. She had numerous conversations with the mother about the need for heat in the house and she had suggested that they engage with MABS, the money advice and budgeting service.
The downstairs toilet could not be used as the dogs had been sleeping there and there was a stale smell of dogs from that part of the house. The children were noticed to be apprehensive about leaving the foster parents for access and had been anxious before the end of access visits. The responses of the parents to the needs of the children had been very limited and they would need constant reminding to change the nappies.
The court was also told about sexualised behaviour by A which had been witnessed by the HSE access worker and the foster carers. When questioned by the parents’ barrister, the access worker said nothing had been confirmed and no allegations were being made but she said A’s behaviour was not typical.
The witness agreed with the parents’ barrister when she said that their decision not to consent to continuing voluntary care had been well flagged to the HSE. The barrister told the witness that the reason for the withdrawal of their consent was the questioning of the parenthood of some of the children by the HSE and their intention to seek DNA testing to establish their parenthood.
Second social worker
Another social worker was asked by the HSE solicitor why DNA testing had been sought and she said it would be relevant for the future of the children to know the identity of the father. The sexualised behaviour of A had been referred to a clinical psychologist who specialised in sexual abuse but no assessment was carried out because of the child’s age. No allegations had been made and the psychologist had said it was important not to make any assumptions.
The social worker said the mother had acknowledged that the children were doing better in foster care. A variety of services had been offered to her including respite as well as two parenting courses. There had been regular visits by the social work staff to provide advice and support. A had a moderate learning disability. He was a very angry and aggressive child with very difficult behaviours and his fosterers would describe him as quite feral. Since going into care, a lot of initial work was done in improving his vocabulary.
He initially refused baths and a foster parent had to put on shorts and a tee shirt to get into the bath with him. He did not know what a toothbrush or toothpaste was and he did not know how to play football. She said she did not believe the parents were emotionally responsive to the children’s needs. She had seen a great improvement in recent weeks but was not sure if they could maintain it.
She said that both parents had traumatic experiences as children. “We recognise they both had very difficult experiences but from a social work perspective we learn to parent from our own experiences and its important for them to break the cycle and learn from their experiences”, she said.
When the parents’ barrister asked her if she had considered the impact of raising the question of the children’s parentage with the father an hour and twenty minutes before coming into court, she replied that she had considered it but that her priority was the children. She said the children would have a right to know in the future who their parents were. The barrister said they had been relying on an anonymous allegation that the mother’s current partner was not the father of B. The judge said this question of parentage was of no relevance to the hearing and he was not going to factor it in.
Parents’ evidence
The mother told the court she would do anything to get her children back. She and her partner had attended seven out of ten previous parenting courses but difficulties had arisen because she was pregnant and it was not possible for her to attend. There was another parenting course in January which she said she would attend. She accepted that a previous house was very cold but “the present house is warm and it’s nice”.
The father denied that the children had been neglected. He said he played with A and “I even tried playing football with him. I showed him how to ride a bike.” Asked by his barrister about allegations of sexualised behaviour by A, the father said he had never witnessed it and that it had happened since he went into care. He said the children were much better off at home and he would be agreeable to a Supervision Order.
Submissions
In closing submissions, the HSE solicitor said their application was for four very vulnerable children and it was not a knee jerk one. The HSE had extensive involvement with the family since July 2012 and there had been no significant change.
The barrister for the parents said there was no medical evidence before the court that totally linked the children’s developmental delay to neglect. There were no allegations of abuse or violence or that they had been deprived of food.
It was accepted that their parenting skills were not as they should have been. Just because the parents had been abused as children and put into care should not mean that they should be deprived of their children. The last year had been particularly difficult for them because of the mother’s illness. When the children were examined before going into care they were all healthy and well nourished. She referred to a High Court judgement in which the judge had stated there had to be compelling reasons for taking a child into care. The barrister said the threshold had not been met in this case and a Supervision Order would be “absolutely appropriate”.
The judge said he was going to grant the HSE application for an Interim Care Order because the children had been neglected in a very serious way. For whatever reason, the parents had put the children’s needs aside. Despite numerous supports and numerous attempts by the HSE to get the parents to interact with them, there had been no significant change. The fact that A had made great improvements was an indication of how badly he had been neglected. It was probably not conscious on the part of the parents. It was almost unintentional neglect but it had an enormous impact on the children.
The Interim Care Order was made for 29 days with access to the parents to be at the discretion of the HSE. The judge made a costs order in favour of the parents.
Second Interim Care Order application before different judge
When the Interim Care Order came back for renewal before the judge who had refused the Emergency Care Order earlier, the order was renewed for six days to allow a hearing of the Child and Family Agency (replacing the HSE) application for a full Care Order. However, when it came back six days later the Interim Care Order hearing continued to be adjourned for a number of months, as only part of it was heard each time it was adjourned, and on a few occasions it did not get heard at all. The Care Order application did not get to be heard.
Access worker
The first witness was an access worker who gave evidence of visiting the family on 43 occasions when there was a Supervision Order in place. She said the house was consistently cold since August 13th. The judge told the witness to slow down. When she continued to speak at her usual speed he said he would abort the trial if she did not slow down. As she gave her evidence he repeated what she said as he noted it down.
She said also that the house was not always clean, the sink full of cups and children’s beakers, with empty confectionery packets in the fireplace. Evidence was given again of the downstairs not being clean and dogs living in it, and the mother being in her pyjamas when the access worker arrived at the house.
“It’s unusual, but not unknown that mothers dress over their pyjamas to go shopping in the mornings,” commented the judge. The access worker said that access had been changed to midday last September and it was important that the parents were dressed during access and able to take the children out.
The worker said that since the family were re-housed the situation had improved. She said the parents had a lot of opportunities to be alone with the children during access, upstairs in the toilet or in the kitchen, making supervision difficult.
The court was then told the CFA moved access to one of its local offices the week of the court hearing.
“During this case? That’s the first I heard of it,” the judge said. “Who made the decision?” The access worker said the social workers, in conjunction with the team leader, had made the decision.
She described an incident when Child A, who was five and suffered from an intellectual disability, was under an activity table and said: “I want to do winkie. You can’t see me.” The told him she could see him, and he placed a box of toys in front of the table, got back under it and said: “I do winkie”.
He had also pushed his younger sister away and hugged the access worker from behind. “Is that not normal behaviour from most children? They look for affection and for hugs?” the judge said. “In relation to [this child] I have behavioural concerns,” the access worker said. She said there were reports from other social workers that A had thrusted at his sister from behind. At access the other children were happy to see their parents and hugged them, but he didn’t.
Judge: “We must bear in mind A has special needs and attends a special school.”
The access worker said that child B was saying “Mammy, Mammy,” looking for her foster mother.
Judge: “Isn’t that what happens when children are taken into care and they are only with their parents twice a week for restricted periods? These children are very young. It’s quite natural for them to be confused.”
The access worker also said that the parents had not reprimanded A when he was cursing. During access the mother stayed on the couch and the children had to come to her.
Judge: “The mother is heavily pregnant. It is perfectly natural she would be tired and sitting on the couch.”
The access worker said the parents had not tidied up the CFA room after access.
Judge: “Is this what the country has come to? Are the natural parents expected to tidy up the table and chairs in property owned by the CFA? Is that what I’m hearing?”
Access worker: “They are expected to put the toys back in the box.”
Judge: “Is it the situation that the HSE employs contractors to clean the building?”
Access Worker: “Yes.”
Judge: “Would the parents not be aggrieved that the goalposts had moved, access was moved out of the house. It would be natural to think, ‘stuff your toys’. Why are you making an issue of this? I take it you have feelings. These people are not machines, they’re human beings. They were upset at access being moved. It would be perfectly understandable they would not want to tidy up the CFA premises. Is that not a plausible explanation?”
Access Worker: “Yes, judge.”
The parents’ barrister said that the Wednesday before the court hearing the mother was cooking dinner for the children, expecting them to arrive for an access visit. They didn’t arrive and she contacted the social worker. “Only at that point was she told that access was no longer in the house, but in the CFA offices. Why was that so?”
The access worker said she did not know.
Judge: “I am very concerned you are being evasive.”
The access worker said she was aware a member of the team had concerns about the sexualised behaviour of A.
Judge: “These references to sexualised words only started to occur after the children went into foster care. The access visits to the natural parents are supervised. So how could there be any threat to the children from their natural parents having supervised access visits in the children’s home?”
The access worker said that sometimes one or other of the children was unsupervised while with a parent upstairs in the toilet or in the kitchen.
The parent’s barrister said that A’s sexualised behaviour had been identified by the foster parents at the beginning of July. The child only saw a psychologist specialising in child sex abuse at the end of September. The psychologist said the behaviour was probably self-soothing.
“She was never called to give evidence. She made no finding of sexual abuse.” The access worker agreed.
Parents’ barrister:” You decided to make a Stay Safe programme with [A] in November. Why?”
Access Worker: “It helps with language, self-esteem and confidence.”
Barrister: “Did you discuss it with the psychologist?”
Access Worker: “No.”
Barrister: “You told [A] it was OK to ‘do winkie on the pillow’ [masturbate] in private but not in public. He never does it at home but he can do it at the drop of a hat in front of social workers. You described his behaviour in December and contacted CARI (the organisation for victims of child sexual abuse).”
Judge: “Why did you consult an organisation which works with children who have been sexually abused when the psychologist found conclusively no evidence of sexual abuse? It seems to suggest a) you have no confidence in the psychologist and b) her report didn’t suit you. She is one of the leaders in this field. If she is so adamant why would you subsequently go to another organisation?”
Access Worker: “[A] displayed sexualised behaviour again.”
Parents’ barrister: “You applied for an Interim Care Order on the basis of neglect. The reasons no longer stack up. They have moved house. It’s warmer. The dogs are gone. There are three toilets in the house. They’ve engaged with specialist family support services. [A] has an IQ of 44, he’s in the bottom one percentile of the population. We have reasons for his behaviour, he can’t keep up with his peers, he has huge frustration.
“You came to court on the basis of neglect. You applied for an Emergency Care Order. It was refused. During the course of that application no reference was made to ‘winkie on the pillow’. Why didn’t you tell the judge at the time of your concerns?
Access Worker: “I answered the questions put to me on that day.”
Judge: “That’s like a person in the Wehrmacht saying ‘I was never a member of the Nazi party.’ It was an Emergency Care Order. If alleged sexual abuse was part of your case why not raise it? It was pulled like a rabbit out of hat when you went for an Interim Care Order before my colleague.”
Barrister: “What has happened since July to elevate this case from neglect to ‘winkie on the pillow’, so that your colleagues now think there has been chronic abuse, both physical and sexual?”
The CFA solicitor objected that the witness could not speak for her colleagues, and the judge ruled against this line of cross-examination.
The parents’ barrister asked if access had been moved from the parents’ home because the guardian ad litem (GAL) said she thought there had been child sexual abuse. The judge said this was not a matter for this witness.
The barrister asked if the children’s behaviour during access did not conform to a textbook on child and adolescent psychology, where three stages of mourning were identified when a child was taken into care. It included self-soothing, “for example, thumb-sucking or masturbation”.
“We have been told consistently that this is completely abnormal behaviour,” she said. “I have to put it to you that this behaviour is completely consistent with a child being abandoned.”
Judge: “Do you agree?”
Access Worker: “Yes.”
The judge asked the witness if she had seen the film “12 Years a Slave”. He outlined the film and said it showed young Africans being herded off boats and into auctions to be sold into slavery. “Children as young as three and four were torn from their mothers. The wails and pity of the children is something I will never forget.
“Is that not something you see when children are taken into care? Only in the gravest of situation would you consider taking children into care. I think you only do it when you have no other choice.
“You don’t have to deal with what I have to deal with when people come out of care at 18 or 19 years of age. They were moved from Peter to Paul. They are socially detached. Very few people come out of a care situation better than they went into it.”
The CFA solicitor said that what was before the court was the case of these four children.
The parents’ barrister asked that access be restored to the children’s home and, after consulting the Child Care Act, the judge agreed. He adjourned the hearing for five days.
When the case came up again the case was further adjourned for assessments of the children to be carried out.
Guardian ad litem
The case came before the court a month later, when the children’s guardian ad litem (GAL) gave evidence.
She said the oldest boy, A, was a young boy with a moderate intellectual disability and significant behavioural difficulties, who displays sexualised behaviour. He needed a lot of structure and boundaries. He threw toys and pulled the hair of the next child, B.
The judge asked: “Would tantrums or violent displays be related to moderate intellectual difficulties. Is there a touch of autism?”
The GAL said she didn’t think so.
In relation to the second child, B, she said her speech appeared to be delayed. She needed encouragement to speak. She experienced difficulty playing with her brother and tended to hoard her toys, which can be normal. A’s reaction could be so aggressive that it was difficult for her to deal with. During an observation of children at play both children hit each other and she wet herself.
The third child, C, was a pleasant little girl, able to interact and engaged. The parents said there were issues in relation to aggression and sleep patterns. Her foster carers have recorded that she made a disclosure in relation to sexual abuse.
The judge said: “She seems to have woken up in the night and screamed ‘stop, [father’s name], stop’. It appears that her sleep was disturbed only after she came back from her parents and that when the foster carers woke her up she was aggressive.”
The youngest child, D, who was just over a year old, appeared to be wary initially, but on the GAL’s last visit put his arms up to be lifted.
“An affectionate child? He seemed indiscriminate,” the judge remarked.
The GAL said he then sought to go to his foster parents and there appeared to be a strong rapport with them.
The judge asked when St Clare’s [specialist child sex abuse unit’s] assessment was taking place. The GAL said she understood that the children had been prioritised and one other case had to be dealt with before seeing these children. She agreed with the judge that the outcomes of these assessments would greatly assist the court in progressing matters and making an evidence-based decision.
Cross-examined by the parents’ barrister, she agreed that the children were examined by a doctor after going into care and there was no sign of trauma or injury. There were no allegations of physical or sexual abuse at this time.
She also agreed that they had been seen by a psychologist, who said there was no evidence they had been physically or sexually abused. However, the GAL said she understood the psychologist said she couldn’t complete her assessment of A because of his level of cognitive disability.
The parents’ barrister asked her if the psychologist had suggested that A’s behaviour, which involved masturbation, might be self-soothing. “Yes,” replied the GAL.
The barrister asked her why she had concluded he had been sexually abused. The judge intervened: “You say that you gave careful consideration and that you think concerns before the court should satisfy the court that grounds for Interim Care Orders exist. In circumstances where the GAL has observed A engage in sexualised behaviour it is reasonable to suggest that he has suffered sexual abuse. A has also informed [the social worker] that he does ‘winky on pillow’.”
The barrister asked the GAL if she considered there was any basis for the expert view (referenced in a textbook on child psychology) that children going into care can exhibit sexualised behaviour.
“I think it would be inappropriate to rely on one piece of literature. I think that it’s a matter for the [specialist] team,” the GAL replied.
Barrister: “Do you disagree with [the psychologist] who said that the behaviour might be self-soothing?”
Judge: “I don’t agree with that and I am the judge. She can suggest what she likes and I can disregard it.”
Barrister: “Are you aware of a report from CARI [child sex abuse charity] that sexualised behaviour doesn’t have to be related to abuse, there can be lots of reasons?”
GAL: “Yes.”
The judge read from the GAL report: “You say that it is clear that both parents love the children and want to take care of them, but the GAL’s recent meeting with the children raises serious concern. GAL has observed [A] to engage in sexualised behaviour … thrusting his pelvis back and forward and rubbing his genitals and has repeatedly engaged in ‘winky on pillow’ and has said that his sister and father engage in that behaviour. It’s GAL’s view that children should remain in the foster placement, pending assessment. Any plan to return children at this time would be unsafe.”
The GAL said that A spent a lot of time hiding behind a table and saying he was going to do “winky on pillow”, which he did.
Judge: “It’s deeply disturbing. That’s what I would have thought.”
Asked by the parents’ barrister if she had consulted anyone to find out in what circumstances this might occur, the GAL said she did not feel the need to consult anyone. She was recommending an assessment for child sex abuse of the children and a parenting capacity assessment.
The team leader was asked about the parenting capacity assessment. She said there had been a meeting between a psychologist and the parents, who were accompanied by an advocate. An intern from the parents’ solicitor’s office was also there and took notes.
Judge: “This is outrageous. It’s the first time I have heard of a firm of lawyers being present when a scientific/psychological assessment is taking place. It is not a place for lawyers.”
The parents’ barrister said that the mother had an advocate so things could be explained to her. The father did not have an advocate and had learning difficulties, and that was why someone was there. The lawyers had written to the CFA. The team leader said that the psychologist was not aware there were going to be other people present, and she was concerned that someone from the solicitor’s office would be present at future meetings.
The solicitor for the CFA said the intern had also attended access meetings.
Judge: “Have you ever come across cases where there is a representative of a legal team present during access?”
Team Leader: “Never once.”
Judge: “Neither have I, in 40 years in the legal industry.”
The CFA solicitor asked about the child sex abuse assessment that was planned. The team leader said it involved examining the children’s genitalia, there was specialist equipment and the assessor was trained. The trauma to the child would be minimised.
The judge commented it was very invasive and asked was it done quickly. The team leader said it was. She said that the children had made so many sexualised statements the CFA felt it was necessary. The team in St Clare’s specialist sex abuse unit said someone should be available in the next two weeks.
Judge: “This case is so complicated that you will need to share reports and have a holistic approach. I have a totally open mind in this case and I have to, in that context and in part for the natural parents. I can assure them that they have nothing to be afraid of in relation to independent reports. I hope these reports can get to bottom of the case and bring clarity. A holistic report could be arrived at so medical experts have a full view of what is arrived at.”
The parents’ barrister asked the team leader if she was familiar with the problems of children showing sexualised behaviour and that they often engaged in sexualised behaviour.
Judge: “Do you mean the general population, that this is happening quite frequently?”
Barrister: “I am saying it is happening so frequently that CARI has produced a paper.”
“I think self-soothing happens where there is severe neglect. Children in orphanages in Romania would soothe themselves with masturbation,” the team leader said.
Barrister: “Are you aware that it can also mean that they want to communicate something … when they are stressed. That it’s a way of reducing tension. [The handbook on child psychology] gives an entire list.”
CFA solicitor: “I’m wondering if the barrister is calling Mr Carr [the author of the handbook] to give evidence?”
Barrister: “I’m asking the court to sanction a [psychologist’s] report under section 47.”
Judge: “I’m not going to do that. I don’t accept that. I am happy with the assessments that are going to be undertaken. I’m saying that Mr Carr’s opinions are not shared by general psychologists’ community.”
Barrister: “That is why I am asking for a psychological report. I am saying they are shared.”
Judge: “No, I’m not going to do that. St Clare’s are going to have final say in relation to sexual abuse.”
Asked why there had been no assessment for sexual abuse earlier, the team leader said it was difficult because of A’s lack of verbal skills. “We were trying to get St Clare’s involved last year. But we weren’t in their catchment area. We were caught between a rock and hard place. As the children made more statements and more sexualised behaviour occurred we pushed harder.”
The case was adjourned for two days to another court in the same District Court area. However, on that day there was a long general list and the case was not reached. It was then adjourned until the following week, when again it did not progress significantly. The judge then cleared a family law day later in the month to hear the rest of the application for Interim Care Orders.
Resumed hearing
Team Leader’s evidence
When it resumed the barrister for the parents asked the Team Leader if it was not odd that prior to January there had been no complaint about sexualised behaviour. “In 11 months of supervised access [A] never masturbated once.” The team leader said that perhaps he only did it when he was safe.
“Are you saying he would feel safe in the office of a social worker whom he had never met? Perhaps he’s just looking for attention and he knows the social workers want him to ‘do winkie’. His own social workers don’t see him do it. Isn’t that amazing?”
Team Leader: “I don’t find it amazing? It’s just the way it is.”
The judge asked had the doctors carried out the physical examination directed earlier and the team leader said he had. The barrister said that the doctor found no evidence of sexual abuse.
The judge said that the prime source of claims of sexualised behaviour came from the foster carers and he would need to talk to them. “We’re going to get to the bottom of this. The foster carers are coming into court and will be subject to cross-examination.
“We already got evidence that there was no sexualised behaviour when the children were at home or in voluntary care. I have to put it to you fair and square, you could have gone for a Supervision Order. These allegations came out in a slow drip, drip way based on allegations from the foster carers.”
The parents’ barrister said that there was supposed to be an independent psychologist engaged, who had not been engaged. The Team Leader said that it would have been a HSE psychologist, the HSE was working towards making a decision in December and were looking at making a parenting assessment.
The Team Leader said A had made a lot of progress in care. The judge said he was going to a special school. “It is nationally renowned for success with children with intellectual disabilities. The reasons he has progressed are due the school. The parents are not to blame for his disability.”
Parents’ barrister: “If the parents are not to blame for his intellectual disability what we are left with is a messy house. In those circumstances is it not more proportionate to seek a Supervision Order? When you take children into care it has extremely serious consequences. Do you agree?”
Team leader: “Yes.”
Barrister: “They will act out?”
Team leader: “Sometimes their behaviour will improve with structure.”
Asked if the CFA should not have helped the family rather than splitting it up, the team leader said that help was given to the family but things did not improve. “A support worker and a parenting course were offered. We don’t want to take children into care.”
Barrister: “Can you give me an example of help?”
Team Leader: “They were trying to support the family. There were a lot of concerns around the home. The house was always cold.”
Barrister: “They did try to improve the house to the extent that their finances allowed. There is no mention in any report as to how they would get their children back.”
Judge: “Did you ever draw up a list and say if you do A, B, C and D you will get the children back?”
Team leader: “It never came to that.”
Judge: “Why not?”
Team leader: “We needed to assess the parents.”
Judge: “How can you assess the parents on the basis of access two, three or four hours a week? It’s a nonsense.”
Barrister: “There is no physical evidence of sexual abuse. They moved house. They cleaned up their act. What else can they do?”
Team leader: “We’re very concerned there is some kind of abuse going on. The risks are too high for a Supervision Order.”
Judge: “Are you saying if a clinical psychologist says there is no objective evidence of sexual abuse the children can go home?”
Team leader: “Yes, and a parenting assessment as well.” That would take eight weeks. The case was adjourned.
Judge calls for special family court
When it resumed some weeks later the judge called for the setting up of a pilot specialist family law court in his area to deal with the huge volume of family law there.
At this hearing the mother was heavily pregnant with her fifth child, and the Interim Care Order hearing had been adjourned a number of times, including three occasions when, although it was scheduled for hearing, it could not be heard due to the volume of other cases on the list.
Appealing for a conclusion to the case, the barrister for the parents said that the matter had been adjourned on at least 16 occasions so far. “I haven’t made any case through these 16 adjournments,” the barrister said.
The judge said all he could do was adjourn the whole of the list on the next family law day and devote the day to the case. “There will be hundreds of people milling around on Friday whose cases won’t be heard,” he said.
“I sympathise with your position,” the judge told the mother, who was very heavily pregnant at this stage, and gave birth two weeks later. “I would love to have a situation where there is a specialised family law division with properly trained judges, where these matters would be dealt with in a timely fashion. That is not possible at the moment, which is something I deeply regret. This is one of the busiest districts in the country.
“On family law days there can be as many as 60 cases listed. I’m going to talk to Judge Horgan [President of the District Court] who is very supportive, as is the Minister. We do need a specialised dedicated family law division. If there was a possibility of a pilot scheme in [this district] the use of a moveable judge would be a good start.
“The present court system is not fit for purpose. We don’t have the structure in place to deal with the demand for family law.”
Mother’s evidence
The mother told the court she was one of five children, whose father was very domineering, an alcoholic, who inflicted physical and sexual abuse on the children. “He used to beat my mother for no reason, beat me for no reason. I was abused from the age of eight. It stopped when I was 13 and was taken into care.”
She said the family was split up then, the father went to another jurisdiction and her siblings to various foster care homes. Their mother died.
She met her partner through her older sister. Asked by her barrister if he had ever hit or abused her or the children, she said “No”.
Judge: “As well as being the father of your four children, he was your best pal and best friend?”
Mother: “Yes.”
Asked by her barrister if the father ever watched pornography, or if they had multi-channel television with adult material, she said: “No.”
Asked if she had run away a lot when in care, she said: “To see my mum.” She was in a series of residential units for troubled children because she kept running away to see her mother.
She told the court that the father had had an equally miserable childhood. They moved to the rural town to start afresh. She said: “I do put my hands up about the condition of the house.” They moved house a week after the children were taken into care.
“Did you get legal advice when the children went into voluntary care?” the barrister asked.
Mother: “Yes, in the legal centre [in the town].”
Barrister: “Did you meet a solicitor?”
Mother: “No. The person in reception spoke to a solicitor and she said we should comply with what they say and agree with voluntary care.” She said they thought the voluntary care arrangement was temporary. There was a case conference.
“I told them I was trying to find a better house and they basically said No [to the children coming home]. My knowledge was that voluntary care was meant to be short term. They wanted to see how we interacted with the children at access.”
She said she had brought Child A to early intervention when he was about 18 months old because she knew he was behind. She had a good relationship with the care worker at this point. “He was going to be assessed, but it didn’t happen.”
She told her counsel she knew how to cook, she cooked for the children, they had toys and their father played with them.
She said the youngest child, D, was only six months when she went into care. Now she sometimes called her foster carer Mummy, and this was very upsetting. Now she feared that her unborn child was going to be taken into care as well.
She said the family were living on social welfare, and had lost the children’s allowance since the children went into care. They tried to keep the house warm when the children came to visit. She had done a parenting course, which she found very beneficial.
“I found [A’s] behaviour very difficult, especially as a first-time parent. When he was at home his bad behaviour was not every minute of the day. But now that he is in care he seems to be behaving like that all the time. I think he’s seeking attention.”
She said she would abide by any terms the court might set if the children were allowed home under a Supervision Order.
She told the CFA solicitor that she and the children’s father wanted to get to the bottom of the children’s sexualised behaviour, but that the assessments could be carried out with the children at home.
The judge said: “We are all surprised and quite perplexed about the reasons for A’s sexualised behaviour and remarks so I want to hear from the foster parents to try to get to the bottom of it. A full clinical psychological report will be the end of it for the children.
“My view is that only where you have no other option would you grant a Care Order. I heard the mother, I have no doubt her own family was ripped apart. The effect on children of being taken from their parents is horrific. The most serious decision any judge has to make is to grant a care order. He can have no other reasonable or rational choice. Unless there is a very compelling reason most children are best being raised by their parents. Unfortunately there may be cases where there is no alternative.”
The hearing was adjourned.
Foster Carers
When it resumed the following week at a special sitting the first foster carer, who cared for the two older children, told the court that child A’s sexualised behaviour started after he was taken into care the previous March, almost a year before this hearing. She said she told the social worker that both A and his younger sister, B, were masturbating. She said A thrust himself at her when she bent over. However, later under cross-examination she said she had made a mistake about the timing of this report.
The parents’ counsel said that A was brought to a doctor specialising in child sexual abuse. “What did the doctor say to you?” asked the judge. “She said it was terrible behaviour and we’d have to see. She said he was very young and she couldn’t carry out an assessment properly.”
Parents’ counsel: “Did she say it might be self-soothing behaviour?”
Foster carer: “She never said that to me.”
Barrister: “She said it to the social worker. Did the social worker tell you?”
Foster carer: “No.”
Asked why she did not ask the psychologist about the significance of the behaviour, she said she reported to the social worker.
Judge: “What I’m most concerned about is your evidence of two children behaving in a very disturbing way with each other. I can’t understand why you didn’t immediately go to a doctor. Did it not occur to you?
Foster Carer: “No.”
Judge: “If they were your own children, what would you do?”
Foster carer: “Bring them to a doctor.”
The parents’ counsel said the foster carer had told the social worker the second child, B, had been putting her fingers into her vagina. Why had she not brought her to a psychologist?
Foster carer: “I wasn’t told to.”
Counsel: “In four visits to the GP you never mentioned it. There is no mention until 7th January of sexualised behaviour. Why?” Foster carer: “I don’t know.”
Barrister: “You didn’t mention it to the other doctor either. The first mention is in your diary in September. Repeatedly through the diaries you said it’s OK to masturbate provided it’s in his room.”
Foster carer: “I spoke to CARI. [Mrs X of CARI] said sometimes children do these kinds of behaviours and I should advise him to do it in his room.”
Asked why there were no notes in her diary of the children being disturbed when they came back from a visit to their parents, she said she did not note it, but told the social worker.
The parents’ barrister asked her to explain a discrepancy in her notes of the incidents of sexualised behaviour. She said she might jot a note down on a piece of paper and write it into the diary later.
Barrister: “You refer to the GAL as ‘guardian enlightenment’ in your notes. The social worker also refers to her as the ‘guardian enlightenment’. Is it a coincidence or did you discuss what you were going to write down?”
The barrister continued that she had reported: “Mammy does winkie with [A].” “Why was that never reported to the social worker? It was never put to the mother.” The foster carer said she did report it to the social worker.
She was asked whose writing was on certain pages of her notes. The judge commented that the writing appeared to be different from hers. She said it was her husband’s. Asked why then he was referred to in the third person, she said: “He wrote it that way.”
Asked about a reference in her notes to a child’s “fine motor skills”, the judge said: “I put it to you these are not words you would use.” “My husband would more than me,” the foster carer said.
The second foster carer, who cared for the two younger children, said the third child, C, was very angry when she came into care. She was 19 months old and could not walk. She did not like anyone to touch her. She slept during the day and woke up crying at night. The six-month-old baby did not sit up when he came into care, and didn’t babble.
Over time C changed. Then she went to visit her parents in December and reverted back to how she had been when she came into care. She shouted: “Stop [father’s name], stop.” She had to be reassured all the time she was OK.
Coming back from access in January, she said: “[Father’s name] fuck with fingers, Daddy bold. Me no love Daddy. Me sad.” The foster carer said she reported this on the phone to the social worker from her car.
Asked by the judge if she had reported this to the Gardai, she said she had not.
Asked why she had not brought the children to a doctor when they first showed unusual behaviour, she said this was a matter for the HSE.
Barrister: “You said D didn’t know what food was. He was examined by a paediatrician twice and was found to be well-nourished.”
Foster carer: “He didn’t even smile. He spat out baby rice.”
Judge: “Could the child not be disoriented by being taken from his mother and in a strange house? Is that not a rational explanation?”
Foster carer: “It could be.”
Barrister: “Do you not think that the children being upset coming back from access might be because they were missing their parents and brother and sister?”
Foster carer: “Yes.”
Barrister: “Do you understand how upsetting it is for the parents that C calls you Mummy?”
Foster carer: “Yes.”
Barrister: “When C was crying in bed at night her initial answer was [a girl’s name]. Then she said [her father’s name].” The judge established that the girl mentioned was another foster child, aged three and a half.
The barrister said that in the contemporary notes there was a lot about C crying at night and calling the father’s name, but no note of her saying “Stop”. The foster carer said she heard this at 4 or 5 in the morning. “I’m only saying what I heard,” she said.
The barrister said: “[C] appears to be very unsettled for the last few months. She appears to be a very troubled child. Have any appointments been made for her to see a specialist?”
Foster carer: “The social workers do that.” She said she was not aware of any appointments in the future. She also said she had been informed that there was no evidence of sexual abuse.
Father’s evidence
The father told the court he was one of 10 children. His father had been jailed for abusing his sister. He said he had a good relationship with his mother and siblings, and had moved to this area to have the support of his sister and brother-in-law.
He had a very close relationship with the children’s mother. She was now in the final stages of a very difficult pregnancy with their fifth child. They had just been informed that the CFA was seeking a Care Order for the unborn child, and were very upset. They had left the meeting when they heard this.
In tears, he said: “After losing the four children allegations were made. I used to have a great bond with them.”
Judge: “It’s the elephant in the room. I’ll be as respectful as I can. The CFA are trying by innuendo to suggest you sexually abused the children or had an inappropriate relationship with them. Is it totally untrue?”
Father: “Totally untrue. It makes me sick to me stomach to hear it.
“She [the mother] didn’t get a chance to bond with D. He was six months when he was taken away. We tried to negotiate but they wouldn’t.”
Asked where the children’s bad language came from, he said: “We don’t curse around them. People are cursing around them, but not from my house.”
Asked if he would continue to allow social workers into the house if the children were returned, and if he would agree to any conditions laid down with a Supervision Order, he said he would.
He said they would agree to any assessment in St Clare’s and would take the children to any assessment.
Submissions
In final submissions, the CFA solicitor said that there was ample evidence of risks. The threshold for an Interim Care Order was that the court “had reasonable cause to believe” that the children were at risk. The judge said that following the Emergency Care Order hearing the situation seemed to be improving.
The solicitor said there was a significant concern that things did not improve until the matter came before the court. There had been a lot of engagement before the matter came to court and there was no improvement until proceedings were issued.
The parents’ barrister said it was not true there was no improvement. The parents had moved house to a warmer house. Arrangements for heating were made. They got rid of the dogs. Social workers said when they visited the house was immaculate. They did parenting courses.
In relation to attending psychologists, they did not withdraw from this, they delayed it by a matter of weeks. The CFA could have carried out this assessment before the children went into voluntary care. The parents were right to have concerns about the internal examination of the children, as they had already had two physical examinations which had revealed no abuse.
The case had started out as neglect and the children were in voluntary care. When the parents started asserting their right to have the children back the HSE (as it then was) did not seek a Supervision Order, but an Emergency Care Order. At the ECO hearing there was no mention of sexualised behaviour. When the application for an Interim Care Order came before a different judge there was not a single shred of paper or any of the documentation that has come forward since [relating to sexualised behaviour].
The barrister said her solicitor had put in an FOI request for reports, but had received no reply. “There is plenty of documentation in this case to show the children were well fed and well nourished and brought to doctors. None of the social workers in this case said anything about the children being sexually abused. The sexual abuse allegation did not materialise until day 12 of this case when the GAL saw the children in January.
“You know the constitutional position,” the barrister continued. “It has to be compelling. It has to be proportionate. There is an obligation on the State to reunite the family as soon as possible. My view is that as soon as the parents wanted the children back the HSE became entrenched.
“The report of the Kilkenny Incest case says that a Supervision Order offers an opportunity to protect children without the possibly damaging step of taking children out of their home. There is no compelling reason to keep these children in care where the family have agreed to keep all appointments and the parents are willing for social workers to visit any time they want to.”
The barrister for the GAL said that under Section 24 of the Child Care Act the welfare of the child was paramount. Section 17 was not the same as Section 18 of the Act, which was why there was a different threshold. It allowed the court to look at granting an order for 28 days to allow the collecting of evidence. The court could set out a pathway where a conclusion could be reached. The doctor did say further assessments were required.
She said that it was the job of the GAL to put the children’s perspective to the court. Children with cognitive difficulties may find it difficult to express themselves. The GAL did believe that there was a risk if the children were returned home at this time.
Reserved judgment
The judge said he would reserve judgment and give it later. He said he would not retain seisun of the case beyond that, but would ask the President of the District Court to consider a pilot regime for dealing with family law in his district.
Delivering his judgment a week later, the judge granted the CFA application the Interim Care Order.
In relation to the evidence concerning the sexualised behaviour of some of the children he said it was caused either by sexual abuse on the part of adults, the witnessing by the children of sexual behaviour by adults or the exposure of the children to pornography. He directed that the unit assessing the children for sexual abuse carry out interviews with all adults who had contact with the two eldest children since birth. The children are currently awaiting assessment by St Clare’s child sexual abuse assessment unit.
The judge also directed that an assessment of the parenting capacity of the parents be carried out by a psychologist. He said that reunification of the children with their parents should not be ruled out at a future stage.
Further hearing before third judge
At a separate hearing before a different judge an Interim Care Order was granted for the couple’s newborn baby two days after its birth. That judge later renewed the Interim Care Orders for the four older children.
The application for full Care Orders for all five children is now due to be heard.
(See also Report 7)
