A judge in a rural town granted a full care order for an infant until the boy reached the age of 18 years. She spoke directly to the mother after granting the order and acknowledged how upset the mother must be but said that the door of the court was always open regarding reunification.
This matter concerned an infant boy. The matter initially proceeded by way of consent, as the mother had agreed that the threshold to grant a full care order had been reached. However, she did not agree and had not consented that the care order should be granted until the infant was 18 years of age.
The mother had also been in care and had just left the aftercare service. She was in court and was represented by a solicitor and a barrister. The legal team for the mother argued that an order until the infant was 18 was not proportionate.
The respondent father was still in aftercare services, he was not in court and there was no legal representation on his behalf as his solicitor had come off record. The father had been contacted by the social worker from the Child and Family Agency (CFA) the morning of the hearing and had said that he was not in the head space to deal with the matter today.
Evidence was heard from the social worker and the guardian ad litem (GAL).
Evidence of the social worker
The social worker said the father had been formally served with notice of the application by the CFA solicitors. She said that as the father was in ‘aftercare’. She and the father’s aftercare worker had also hand delivered the application to the father. She said she had contacted the father today, the day of the hearing but he said he would not be attending.
The solicitor for the CFA informed the court that the father had been granted legal aid, but the legal aid solicitor had needed to make an application to come off record, as the father was not giving instructions. At a previous hearing, the judge had advised the father to secure legal representation. The judge had requested that the father be assisted with this. The solicitor for the CFA said the father had not engaged with the legal team.
The social worker said the infant needed to remain in the care of the CFA until he was 18 years. She said the parents had both been in the care of the CFA as children, the father since he was three years old. The mother was older when she was admitted into care. The mother had just left aftercare, was very vulnerable and was now pregnant with her second child. She said both parents had significant difficulties and were vulnerable.
The social worker said the father had had an incredibly challenging childhood. His childhood had been very abusive and there had been significant domestic violence. The father’s exposure to this had infiltrated and shaped the relationships he had developed.
The relationship between the parents was one of coercive control, emotional and physical abuse. She said that the mother had sought the protection of the court by applying for and receiving a protection order but she then withdrew the complaints. When the hearing of the safety order was due the mother would not give evidence and had not attended court. There had been many breaches of the protection order, but the mother would not follow through, she would not give evidence at the court hearing and the complaints would fall away.
There had been violence in a public space when the infant was in his buggy in the care of the parents. This had been witnessed by members of the public who had called for assistance. The father had assaulted the mother in the presence of the infant. A panic alarm had been fitted for the mother at her accommodation, but the mother continued to meet with the father. It was a violent relationship and she believed the father to have control over the mother. The mother had been admitted to hospital because of injuries she had sustained.
The social worker had received reports from the hospital staff about aggressive behaviour by the father towards the mother. The mother had discharged herself against medical advice. She had given every assistance to the mother, but the mother would then withdraw all complaints against the father.
She said it had been the plan of the social workers for the mother to care for the infant alone as a single parent. The father would have his own supervised access. She said a reunification plan had been made around this strategy.
The reunification plan had a trajectory for 6 months. There were 12 items or objectives on the plan. The mother had engaged with the access, initially access had been two days per week, which was one item on the plan. The mother had not engaged with any of the other items on the plan, including engagement with mental health services, domestic violence services and other therapies. The social worker said: “In fairness to the mother she has engaged with me, but she has not achieved any of the objectives of the plan apart from attending at some, not all, of the access.”
All services had been offered to the mother, the supports of a women’s refuge, a return to education and all assistance with accommodation but the mother had attended none of these appointments. The mother had breached the conditions of her accommodation and had been evicted from it and because of this would not be eligible for council accommodation for another 12 months. The social worker had referred the mother to other housing charities. She had now moved into her parents’ house.
The social worker said the mother had advised her that she was not in a relationship with the father but the mother had been seen with the father on many occasions. The mother had said that she had assisted the father and was being friendly following his release from prison. The social worker said that when she had spoken with the father, he had said they were in a relationship. The relationship was chaotic, they were mixed signals from both parents. The mother was now pregnant again, with the father.
The social worker said she was unsure of the impact the pregnancy would have. All cases must be individually assessed. There would be ongoing assessments and reunification was always open to the parents and particularly to the mother. There had been times of good engagement from the mother, but this was not sustained. She believed that the mother understood she needed to free herself from the father but had not availed of the supports to help her do that.
She said that the mother tried her best to navigate life but was unable to keep herself or her infant safe from the father. She had every sympathy for the mother, but it was the interests of the child that were her paramount concern. The mother had the reunification plan and although the trajectory had been six months, she now believed, because of the time that had passed and because of the mother’s pregnancy, it would be stretched to 12 months. She said the mother had not really engaged for the last seven months, though she had attended at access and the access had been positive.
With regards to the father, she said the father was well known to the court. He had never taken any ownership of how he had treated the mother. He had shown no insight into the effect his behaviour had had on the infant or the mother.
Cross-examined by the mother’s barrister, the social worker agreed that the mother had attended counselling, and this was a general youth counselling service. The mother’s barrister said the mother needed specific trauma counselling because of her own childhood experiences and her relationship with the father. She said this had never been provided by the CFA.
The social worker said the mother had been referred to appropriate domestic violence services and also had the benefit of a residential refuge. The mother had not engaged with the services and continued to see the father. The mother’s barrister asked the social worker what type of training she had received with regards to domestic violence. The social worker replied that she was no expert, but she had received general training and was not minimising what the mother thought or felt or her position. She said she was confident that staff at the residential unit would have engaged sensitively and appropriately with the mother.
The mother’s barrister said the mother had been a child in care and had recently left after-care. The mother had a significant background of abuse and domestic violence in her own home growing up. She asked: “Did you not think the mother required some specific targeted, individualised counselling and therapy to help her address her issues?”
The social worker replied that the mother had been referred to appropriate services and a funding application for specific targeted counselling had been made five months previously, but she was unaware of the status of that funding application.
The mother’s barrister: “Do you not think you should follow it up?”
The social worker: “Yes, I will follow that up.”
The social worker said part of the issue was that funding for psychological support and therapies was meant to be made through the Health Service Executive (HSE) and it was only after the HSE said they could not provide the service that an application for private funding could be initiated. The social worker repeated that the residential unit would have provided the mother with appropriate supports, but the mother did not avail of them.
The social worker also confirmed there had been no parenting capacity assessment. She said there were no concerns about the mother’s ability to parent the infant, just her ability to keep her infant and herself safe. She said the mother demonstrated from day one the appropriate emotional rapport with her child. The risk was always the domestic violence she was subjected to and her inability to protect her child from that.
The mother’s barrister said the mother wanted to engage in private counselling and therapy not associated with the CFA and specific to her needs. The social worker said that she would endeavour to reignite the funding application and forward this as much as possible. She acknowledged it should have been a priority months ago but would ensure it was a priority now.
The mother’s barrister said that a care order for the next 17 years was disproportionate, and an order for two years was more fitting. It would enable to the mother to complete the 12 steps on the reunification plan. The social worker replied that the reunification plan was discussed at every child-in-care review and the mother could undertake the work at any time. She said they CFA were always open to reunification, but the parents and this mother had to do the work that was necessary for that plan to work.
She said if the mother wanted reunification that would be supported by her and the CFA. the mother knew what had to be done. The social worker said: “A child’s first need is safety and the mother had not, would not and could not provide that.”
The mother did not give evidence.
Evidence of guardian ad litem (GAL)
The GAL said she was supporting the application for a care order for 18 years and it was proportionate. She had considered all circumstances and had taken into account the benefits or disadvantages of a shorter order.
She said her main concern regarding reunification was that the mother had not demonstrated any capacity to change. The mother had engaged well at times but had not been able to engage with the mental health services. There needed to be a professional group around the mother, which would give her the best ability to enable her to leave what was a violent man. The mother kept getting drawn back to him and she had concerns for her safety.
The GAL said the mother needed to focus on herself and needed trauma therapy. She was reassured by the commitment of the social worker to endeavour to secure the therapy the mother wanted and needed. She said the mother had lived away from the father with many supports but then went back.
She said the mother was a lovely young woman who was very capable. She had a lovely relationship with her infant and was a very loving mother, but unable to break free from a man who was fixed on her. She said the mother needed time to address her issues to learn how to keep herself safe.
She said the infant was doing very well in his placement which met all his needs. She had no concerns about him. She supported the application until the infant was 18 because of the history, the lack of change in the mother’s presentation and that if the mother undertook the necessary work reunification was open to her.
Submissions on behalf of the mother
The mother’s barrister said that the targeted support for the mother’s mental health, counselling and therapy had not been given by the CFA. She said that given that the CFA were aware of the mother’s own life story it was their duty to provide this to the mother to enable her to care for her child.
In the case of Haddad v Spain (18th June 2019 16572 /17), a European case, the court found that authorities had a positive obligation to do all they could to facilitate family reunification with due regard to the best interests of the child. She said this European case highlighted there was a duty on the authorities to take all the preparatory steps to facilitate family reunification.
In this case the CFA had not done that. She said the social worker had said in her evidence that the reunification plan had been extended to 12 months. Therefore an order for two years was proportionate as it would permit the mother time to undertake the necessary steps. She said the mother wanted to undertake the necessary counselling and therapy, but the CFA had not secured the funding that was needed to provide it. She said that while homelessness itself was not a ground for the CFA to seek a care order the mother had been referred to appropriate housing charities and would be eligible within 12 months to apply for council housing. There was outstanding work to be done but this would be achieved within the two-year period and therefore an order for two years was proportionate.
Submissions on behalf of the GAL
The solicitor for the GAL said that the mother’s current eagerness to avail of services had not been there previously and she hoped the CFA would support the mother’s willingness to engage in therapeutic work now. However, she said an order until the infant reached 18 years was proportionate and in the infant’s best interests. The mother would be able return to court for reunification once the work had been completed.
Submissions on behalf of the CFA
The solicitor for the CFA said that the order was in the best interests of the child, reunification could take place any time and was opened at all child-in-care reviews. He said there was no default option to 18 years, circumstances changed. Section 22 in the Child Care Act 1991 permitted any party to discharge a full care order at any time. This option was open to the mother.
Decision
The judge said that this was an application for a full care order until an infant reached the age of 18. The application was supported by the GAL. The judge said the mother consented to the making of the order but that she had not consented to the length of the order and wanted an order for two years. The judge noted that the father was aware of the application, had been properly notified and had been given every assistance to secure legal representation. The father had not attended the hearing. She said she was satisfied to proceed in his absence.
Section 18 of the Child Care Act 1991 set out the criteria for taking a child into care. The applicant, the CFA, must establish as a matter of fact that on the balance of probabilities that the threshold had been reached. The court must place the welfare of the child first and consider the tests in light of the Constitution and other legislation.
In this regard the judge made the following findings: the child had suffered neglect; the mother had demonstrated a limited ability to engage with professionals to address parenting deficits; because of domestic violence the mother was unable to keep the infant safe and unless the order was made there was a real risk of harm to the infant. Therefore, she found that the threshold had been reached and would make a full care order.
The judge said the duration of any care order had to be proportionate and go no further than necessary. She said she was aware of the case law that the mother’s barrister had cited. She was also aware of other case law that everything must be done to rebuild the family. There had been sufficient supports offered to the family to re-establish family relationships.
She said the evidence against the mother was compelling that since the infant had been received into the care of the CFA all supports had been offered to the mother but she [the mother] had not been able to take advantage of those. She had not demonstrated any ability to remain engaged with any supports to bring about effective change enabling her to care for her child. The father had demonstrated no capacity to assist her. He had demonstrated little motivation or insight and that gave the court serious concerns. The judge said she could not consider an order until the child reached 18 represented a disproportionate order and it was necessary for the health, welfare and well-being of the child.
The judge made a full care order until the child reached 18. She made a direction that the mother would be given every assistance with any and all therapies that would assist her. She directed that access was to be at the discretion of the CFA and that the matter would be re-entered to court if the following occurred: there was a breakdown in the foster placement; that the child had no allocated social worker for a period longer than six weeks; if the foster parents had no foster link worker for a period of greater than six weeks.
The care order would be reviewed in one year. Aftercare planning would start in 2038 and the matter would be re-entered for formal aftercare planning in 2039. All child in care reviews were to consider reunification. The GAL was to be re-appointed six weeks prior to all reviews. She also stated there was liberty to apply.
The judge then spoke to the mother directly and said: “I have watched you from here on the bench sob and weep through this hearing, and it is distressing, I understand how upsetting this is and must be for you but the door is always open, reunification is always possible.
“There is a 12-month reunification plan which is why I have ordered a review in 12 months’ time. I will be highly critical of the CFA if they have not given you every assistance to complete that plan and reach those objectives. I appreciate you are pregnant, and this must be difficult. I know you love your son, and I am sure he loves you, the door of the court is always open. I hope you will listen to those around you who have your best interests at heart, and I hope to hear good news in 12 months.”
The judge thanked all the legal teams for their efforts in this case.
