A full Care Order application was withdrawn by the CFA in the Dublin District Court after 33 days of hearing over 18 weeks. The application concerned two young children (Child C and Child D) who had been in foster care under Interim Care Orders for two years and three months. Prior to that reception into care they had been under a Supervision Order from November 2013 to March 2014 as part of a reunification plan.
Reports of the Interim Care Order proceedings are in the CCLRP Archive.
The Background
The children, along with two older siblings (A and B), had initially been under three consecutive Supervision Orders in the family home from July 2011 to March 2012.
In March 2012 the first Interim Care Order was granted when all four children came into care due to serious concerns of neglect, hygiene issues, non-attendance at school, non-attendance at medical appointments, dog faeces in the house and in the children’s beds, lack of food in the house, parental drug use, alcohol use, and domestic violence.
An earlier Interim Care Order had been applied for in February 2012. However as the HSE had no foster placements for the children, the ICO was withdrawn and a third consecutive Supervision Order was applied for and granted. The Gardaí were subsequently asked to do spot checks on the family and further home visits were also carried out by the social work department. One such visit triggered another Interim Care Order application.
During that visit the social worker could not find any hygiene products in the house, there were no clean pyjamas for the children and no clean underwear. Hygiene packs had been given to the family but there was a smell in the house. The social worker had seen dog faeces in the children’s beds and on the floors. She observed the mother walk in the faeces with no reaction. The dog faeces were also all around the house and had to be scrapped off the floors. A shopping trolley full of dirty clothes was in the house.
In March 2012, when the Interim Care Orders were granted, the two older siblings were placed into a separate foster placement to the two younger siblings. The foster parents for the two older children reported a lack of self-care skills and hygiene skills. Sexualised behaviour was also reported as well as issues around behaviour.
The foster parents for the two younger children also reported sexualised behaviour in 2012. Child protection notifications were forwarded to the Gardaí and a referral for all four children was made to a child sexual abuse assessment and therapy unit (the Unit).
While in foster care the two older children made serious allegations of rape, physical abuse and emotional abuse against a relative [Y]. Subsequently, a Full Care Order was granted for the two children in December 2013, on consent, for a period of three years, to end in late 2016.
In April 2012 social workers met with the eldest sibling who had made allegations of sexual abuse against Y. No other sexual abuse allegations were made at that time against any other family members.
Although child protection notifications were forwarded to the Gardaí in May 2012, the Garda Child Specialist Interview team was not in a position to carry out the interviews. Meanwhile, the child sexual abuse assessment and therapy unit (the Unit) had put children A and B on a waiting list for interview/assessment for therapy.
Garda forensic interviews are normally carried out before the commencement of the assessment and therapy process. However, in this instance the Unit commenced their process first due to the on-going delay with regard to the Garda Child Specialist Interviews.
The Unit began to assess Child B in February 2013, 10 months after referral, completing the interviews in August 2013, carrying out a total of seven interviews. The Unit commenced the interviews for Child A in March 2013, completing them in August 2013, carrying out a total of seven interviews. They found the allegations against the Y to be credible as well as an allegation by Child B that he had seen Y and B’s mother in bed engaged in a sexual act.
The Gardaí were contacted in 2012 by the Unit with regard to Y. The Garda Child Specialist team carried out four interviews from November 2013 to March 2014 for Child A. This was 12 months after referral. In March 2014, two interviews were carried out for Child B, 17 months after referral.
The social work department had met with the Guardian ad litem (GAL), an Garda Síochana and the Unit prior to all of the interviews being carried out with a view to a joint interview process taking place but were informed that this could not happen.
In November 2013, the two younger siblings were returned to the family home under Supervision Orders on a reunification plan and with a package of supports that included Family Support, OARS, YAP, the PHN and the social work team. It was also stipulated that neither the parents nor the children could have any contact with Y.
Prior to this, the restoration plan had stipulated that the parents remain drug free, not engage in domestic violence, attend YAP, ACCORD relationship counselling, anger management (for the father), and drug counselling.
The Full Care Order was granted for the two eldest children in December 2013, with both children stating that they did not wish to return home. The social work department felt the parents could probably only manage two children for the foreseeable future.
Throughout the interviews with the Unit, during a total of 15 interviews between Child A and B, there were no allegations of sexual abuse against their parents. These allegations emerged during the Gardaí interviews in February 2014. The children alleged sexual abuse against all four children by their parents and the two youngest children then went back into care in March 2014.
During the second day of hearing of the full Care Order hearing for Children C and D in 2016, Child A made a partial retraction to his GAL, who subsequently made a note of it and submitted a report on February 8th regarding the statement by A: “The sexual things to [C and D], none of it happened. I just wanted to talk about what happened with [Y] and she asked about Mam and Dad.” The judge commented that it appeared to be a partial retraction in what was said to the Gardaí but not in relation to the Unit.
After a number of applications for adjournments the CFA applied to withdraw the Care Order application. Following legal argument, the judge ruled he had no power to insist the CFA pursued the application.
Following the decision of the District Court to permit the withdrawal of the application (See Archive, 2016, Volume 1 Number 1), the guardian ad litem asked the High Court to make the children wards of court in order to prevent their return to their parents, arguing that the risk assessment and plan was not sufficient for their protection.
In the High Court, Ms Justice Baker pointed out that the parents had agreed not to vacate the voluntary care order, and the children were remaining in voluntary care, so she needed to “exercise judicial restraint”.
She said: “I consider it at least arguable that the risk assessments carried out have been very detailed but much too general with regard to how the welfare of these children should be dealt with. The District Court and the CFA must take such steps as are necessary to engage with the particulars of the risk identified, or identifiable, with regards to these children. ”
The case then went back to the District Court to consider a plan for the children. In addition, the District Court was asked to look at arrangements for the older children, whose Care Orders were due to expire. These proceedings are on-going.
The Hearing
On the first day of the 33 day hearing, the CFA solicitor told the Court that the original ICO application had been made on March 20th 2014 and the CO application had been made then in relation to it. The CFA were today limiting their application to Section 18.1.c, that “the child’s health, development or welfare is likely to be avoidably impaired or neglected.” Each Interim Care Order extension was based on the need for the assessment of the allegations and the apprehension of the potential risk were they to continue to live at home was based on a Garda Child Specialist interview with them on March 18th 2014.
Section 23 application to admit hearsay evidence
The judge made a ruling under Section 23 of the Children Act 1997 to admit statements made by the children, having heard evidence from the GAL and social worker that Child C would find the process of giving evidence too distressing and that he was too young to give evidence in court, or via video link or with the assistance of an intermediary.
With regard to Child D, the judge found that the child was too young and that it would not be in her interests or welfare to give evidence in court or via video link or with the assistance of an intermediary.
The views of Child A, who by the time of hearing was 13, had not as yet been canvassed by his GAL or social worker with regards to giving evidence. The barrister for the GAL for the two eldest children said as A had expressed a wish three days ago to talk to the judge, therefore Section 24 of the Child Care Act applied and the wishes of the child should be canvassed. (Section 24 (b) states in relation to court proceedings in relation to the care and protection of a child that the court: in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.)
The GAL’s view was that subject to the child’s wishes, it would be in the child’s best interests to give evidence via video link. The judge decided to canvass the child’s views rather than continuing with the Section 23 application in relation to this child.
The judge said it would be appropriate to ascertain the child’s intentions as to what he intended to do. “Would [A] be here in person or via a camera or with or without an intermediary? [The GAL’s] view is, subject to the child’s wishes, it is in [A’s] best interest that it would be via video link.”
The consensus was that the child’s views should be asked before the social worker gave her evidence with regard to the Section 23.
“If [A] is here to give evidence, it is to give evidence about everything,” said the judge. The Court could decide on a full physical presence with full physical examination or remotely with an interlocutor.
There were 22 hours of DVD recordings to be viewed in court as part of the proceedings.
In relation to Child B, who was now 11, the court heard from the social worker that discussing the allegations via any form of questioning would have a detrimental impact on the child. The parents supported the application that the child should not give evidence as it would not be in [B’s] best interests.
Child B’s GAL felt that he would worry about the child’s emotional welfare if [B] were to undertake direct evidence. “None of us really know what his recall is, the allegations made go back two years now and perhaps [B] would struggle trying to understand the process of giving evidence rather than remembering…”
The judge made the ruling under Section 23.1.b, that it was not within the child’s welfare to give evidence as it would be distressing and disturbing, that it would be traumatic and adverse to [B’s] best interests and that applied whether it was in person or via video-link. He said the Section 23.1 statements “may be admissible”.
The Court decided to watch the DVD interviews by the Unit and the Gardai child specialist interviewer in relation to Child B. In the meantime the views of Child A were to be canvassed with regard to how [A] intended to give evidence.
DVD recordings of interview of Child B
The DVD interviews of Child B by the Unit were shown in court. There were seven interviews in total. Child B makes allegations involving rape, physical and emotional abuse by Y, as well as an allegation of seeing his mother in bed with the same person. B talks about Y making him watch porn and talks about witnessing domestic abuse in the home. Following these interviews, two Garda child specialist interviews are shown. In both interviews the child has brought in lists of allegations which the interviewer then uses to question the child.
The origin of these lists is questioned by the judge.
During the second Garda interview, which contains mainly sexual abuse allegations against the parents, the interviewer asks Child B about feelings: “I was very humiliated, poor, awkward, down in the dumps, amazed, angry, frustrated.”
The child “sort of has those feelings now” because the younger siblings were still at the parents’ house.
“You’re still feeling certain ways about [C and D]. What do you think about [them]?” asks the Garda interviewer.
“It’s just, I’m doing the interviews to get them out of my Mum and Dad’s house,” replies Child B.
“So you’re worried about your [siblings]?” asks the Garda interviewer. “What way are you worried about them?”
“I just feel scared that all the stuff will happen with them, I’m very protective,” says Child B.
The DVD interviews of Child A were then shown in court. Seven interviews with the Unit were shown. Child A makes allegations of sexual abuse against Y, involving him, Child B and other “big people” and “small people”. A talks about Y making them watch porn and then forcing them to have sex afterwards, using sensory detail in his description. A says that Y threatened to kill them if they told anyone.
In the interviews in the Unit, the interviewer gives anatomically correct dolls (AC dolls) to the children in order to help them show her what happened to them. The children also answer questions while colouring and drawing.
Interviews of older children by Gardai
The interviews by the Child Specialist interviewer with the Gardaí are also shown, during which Child A makes allegations of sexual abuse involving all four children perpetrated by his parents. A also says Y and another relative also sexually abused both older children, and made allegations involving physical and emotional abuse and neglect against the parents.
The DVDs regarding both children are played in court over a period of six days. Once they are finished (on February 8th) the Section 23 application recommenced regarding Child A giving evidence by reason of age or understanding or by reason of best interests.
The GAL told the court that while A was of an age to give evidence, it was not in the child’s best interests and this applied to video-link evidence and with an intermediary. However the child’s express wishes on February the 2nd was to come into court to “speak to the judge” which was A’s term for “giving evidence”.
A’s GAL told the court that the child made a direct statement to him on February 2nd. A had told his GAL: “The sexual things to [C and D], none of it happened. I just wanted to talk about what happened with [Y] and she [the Garda] asked about Mam and Dad.”
The judge noted that it appeared to be a partial retraction in what was said to the Gardaí but not in relation to the Unit.
The GAL for Child A told the court that he had struggled a lot in terms of the needs and interests of the child. A had been making similar comments over a period of time which were not quite as direct.
The judge decided to proceed with the Section 23 application, he noted that A was of an age capable of giving evidence to the court but that pursuant to Section 23.1.b that it would not be in the interest of A’s welfare, therefore the application to admit the evidence under Section 23 was allowed to proceed without A being called to give evidence.
The evidence was admissible but not admitted, remarked the CFA solicitor.
The judge replied that the evidence would have to be given by the people to whom the statements were made and if the statements were not agreed then it would have to be heard.
The original application was under Section 18.1.c of the Child Care Act 1991, it was noted that all grounds of 18.1.a.b.and c had been recently issued. The parents had consented to certain findings of fact in relation to Children C and D which were historic facts before the court from 2013.
The role of the GAL
Counsel for the respondents questioned the locus of the GAL, positing there was no clear guidance or statutory provision in that regard. Senior counsel for the mother contended that there were currently two cases in the High Court, one which held that the GAL should not be a notice party and another that contested the description of a GAL as a notice party. “There is a lack of clarity in relation to this role,” senior counsel told the Court.
The judge commented that the children were not parties to the proceedings and the GAL could only be appointed in those circumstances, whether that made the GAL a party, the Act did not say. He said that the GAL’s purpose was to express views and was appointed in the interest of justice. It was appropriate for the GAL to speak on behalf of the children after the evidence of the respondents and that included in relation to the parents.
Witnesses
- Chartered forensic psychologist:
A chartered forensic professor of psychology was appointed by the court to carry out a risk assessment on both parents. She had been provided with a letter of instruction, a bundle of documents, a neuropsychological assessment of the father, the Why I’m Angry Letter by Child A and the response to it by his mother.
The chartered forensic psychologist, who had 18 years of clinical practice, told the Court that while the risk assessment was complete with regard to general and partner violence in relation to the father, the issue of concern, which was a sexual violence risk assessment could not be carried out because of an absence of finding of fact, charging or conviction, or denial.
The father did not meet the criteria for psychopathy. Her overall impression of the father was that he engaged well in the assessment and provided detailed answers to questions, he was not particularly defensive. He struggled to understand abstract questions so she recommended a cognitive assessment. She concluded was that he had a propensity of engagement with aggression and psychosocial adjustment and that there was a risk of future partner violence in the context of substance abuse difficulties.
He had described psychosis and delusions but there was no indication of panic disorder or delusion disorder. He had recalled punching walls, throwing things, thrashing the accommodation, writing “slut” on the wall but denied hitting the mother.
The psychologist told the court that a structured clinical assessment could only be used with a history, charge, conviction or acceptance. This was based on 20 years’ of practice and knowledge. She had met with the father and spent 3.5 hours assessing him. He had denied committing acts of sexual abuse towards his children or towards others and had not been charged. He had not been found guilty of sexual abuse either currently or historically, therefore it was impossible to carry out a risk assessment that informed anything beyond chance.
The psychologist gave evidence that the father did not really understand the impact of aggression on the children, and had stated that he was in a difficult place when the aggression had occurred.
With regard to destabilisers relating to the father, substance abuse, mood challenges and bereavement were attributed and he had failed to prioritise his children’s needs and this had resulted in their neglect.
The barrister for the father informed the psychologist and the court that the father’s involvement with drugs had ceased in 2012. She asked if sexualised behaviour and a preoccupation with sexual matters on the part of children was indicative of sexual abuse. “It’s a risk factor you would consider as part of a wider assessment but not 100 per cent indicative,” replied the psychologist.
Aggression and neglect would be reduced if the destabilisers for the father were not present, which were alcohol and substance misuse as well as bereavement. He had had major depressive episodes and substance abuse mood disorders.
The format for the mother was the same regarding her risk assessment and the professor told the Court that she had the same overall conclusion in that the mother had denied sexual abuse towards the children and there was an absence of history, charge or conviction. Therefore risk would only be a guess.
The professor had identified the risk factors that were relevant using a tool called HCR20. The mother had indicated the destabilisers, the clinical factors which were current for that period of time. If those destabilisers occurred again such as substance misuse then aggression was more likely to occur, as well as mood challenges, stress, anger, frustration and so forth.
The mother had told her that she had matured considerably since the children were first removed from her and she did not feel she was a risk to the children. The impression the professor got was that the mother was denying the allegations in terms of her perpetrating sexual abuse.
She had stated in the past her care of the children had not been positive and she went on a bad road, this was in relation to neglect. No structured clinical tools were used for assessing neglect, the professor told the court. The mother had mentioned about the hygiene problems and expressed regret at being unable to keep the children safe.
“Children who present as neglected are at a greater risk for exposure to sexual abuse by others,” said the professor. The neglect indicated placed the children at risk of being harmed by those external to the family, the risk extending to disclosed sexual abuse by Y.
The professor told the court that she had worked with predatory sex offenders. “They identify neglected children by how they look, the clothes they wear, how the parents do or do not respond to them. It raises their risk for harm. Neglect is the failure to keep children safe.” This was her clinical opinion based on working with sex offenders for 20 years.
Due to her relationship with the father, the mother had failed to attend to the children’s emotional needs and protect them from harm from one another as well as harm from others. This was again a neglect issue.
She had failed to prioritise her children’s needs by using substances and due to conflict in her relationship. The professor commented that the mother had some insight into this during the assessment.
She was ashamed to admit that the children had been exposed to aggression and wished to protect the father from adverse opinion. The professor also found that the mother had wished to avoid discussing topics regarding neglect and her children and did not want to accept the more severe types of aggression that had occurred and what they might be.
The mother had had her children young and the professor found that her lack of prioritisation was also due to a developmental issue as she wished to spend more time socialising with others. During that time her life had become dominated by substance misuse and the difficulty in her relationship with the children all led to the lack of prioritisation.
Very little research had been done in relation to parents who physically abuse their children and the risk factors associated with that area because the majority of parents denied the abuse, said the professor. In the mother’s case, the broad destabilisers were broad enough to capture the issues but there was a denial of certain aspects, such as denying forcing the children to eat excrement from D’s nappies and forcing the older children to punch their younger siblings.
The professor said she was satisfied that the mother was aware of the challenges of her substance abuse issues and the link with her parenting ability.
The mother’s stance during the assessment had been that the highest risk factors occurred when she was engaged in substance misuse. That substance misuse had included benzodiazepines, “snow-blow”, sleeping tablets and alcohol had caused significant impairment across the domains of functioning.
Senior counsel for the mother pointed out that she had been completing urine samples and there was no evidence of drugs in the last 18 months.
There was the issue of social isolation of the mother, therefore she needed to build relationships outside the relationship with her partner, the children’s father. “Once services are withdrawn you are left with a risk of social isolation,” explained the professor.
The mother had been in contact with some professional agencies and needed to develop an insight through education of what would constitute aggression and violence. “In the absence of a finding I’m left with allegations and denials.” The risk of neglect was the key area of difficulty. The children had been at home from 1st November 2013 to the 24th of March 2014 under a carefully monitored Supervision Order and no issues had emerged. “That indicates an absence of risk,” said the professor.
The professor told the court that she had received the recent GAL report regarding the retractions by Child A, she remarked “that if the Court accepts that the allegations have been withdrawn then it just fits with the fact that I couldn’t complete my risk assessment.”
The clinical tools she had used included the HCR20 which was accepted as being the gold standard. “Structured clinical assessments must be used to predict risk otherwise it is little better than chance.”
- Social worker
The assigned social worker from 14th March 2011 to 8th November 2012 told the court that she was the author of the social work reports prepared for the Supervision Order applications during that time period. The application for the Interim Care Order had been made on February 28th 2012 due to neglect.
The circumstances pertaining to neglect included non-attendance at medical appointments for a number of the children. The Community Welfare Officer was concerned about domestic violence. There was possible substance abuse in the family home. Child B was not attending crèche and Child A was not attending school. Their father had been brought to A&E on two occasions with a possible accidental overdose of cocaine and snow-blow. The social worker had observed the house to be very unkempt and unhygienic, with the parents possibly under the influence. There was no food in the home and the children were dishevelled. The family were declining support.
The mother had reported at the time that she had tested positive for amphetamines on a number of occasions and thought the father had spiked her drinks. The father’s older son from a previous relationship had taken snow-blow and cocaine in the family home.
Furthermore, the mother had wanted a transfer from the family flat, believing it to be haunted. The social worker continued to carry out a number of home visits, sometimes with other colleagues such at the public health nurse, another social worker or an OARS worker.
The parents were presenting under the influence of what she believed to be substances. There were hostile and aggressive and were roaring and shouting in front of the children who were distressed.
Mattresses were strewn on the bedroom floor. There was dog urine and faeces on the floor as well as pots of food for days on the bedroom floor with mould on the lids. The children were running around playing in the room. Their clothes were dirty and there was a shopping trolley full of dirty clothes in the bedroom. There were broken wardrobes and broken mirrors on the floor and no room to walk.
The children’s basic needs were not being met. The social worker saw Child D singing very loudly to try and drown out her parents’ shouting at one another but the mother shouted over the child to the social worker that the children were used to it [the shouting].
After Christmas 2011 an Interim Care Order was applied for as the “flat was basically chaotic”. There was no food and the father appeared under the influence. The children were sitting watching TV, not reacting to the shouting. However the ICO was then withdrawn as the HSE did not have any foster placements at the time.
The guards were asked to do spot checks and further visits were carried out which triggered another ICO application in February. The mother had been really distressed and had told the social worker that “she couldn’t do it and had tried to do it”. There was a terrible smell in the house and Child A’s school were reporting a very bad odour from him.
Hygiene packs were given to the family and the social worker then made a home visit, the smell was still there however. She went into the children’s bedroom and there were dog faeces in the children’s beds and on their bedroom floor. The mother walked in the faeces and did not notice until the social worker told her. The dog faeces had to be scrapped off the floor but the father refused to help.
The dog faeces which was all around the house had been there possibly for days, yet the mother could not figure out where the smell was coming from. It was then that the second ICO application was made and granted.
At that time Child A had appeared parentified, it was he who went to Child D in the middle of the night, fed the child during the day and changed nappies. If children C or D were distressed it was Child A who comforted them and not their parents. A had witnessed the father smash bottles over the mother’s head and said that Dad had beaten him up.
The judge asked the social worker not to interpret what the child had said or paraphrase it. The social worker told the Court that she had asked A if his Dad had ever hit him or kicked him and the child had replied yes to all of the questions. In response the judge said that this sounded like a question and answer session and asked had the child volunteered the information himself. However the social worker could not recall exactly what the child had said on the day and believed she was recounting an edited version.
When the social worker met Child A two days after the ICO was granted, A had told her that there had been “tablets and the white stuff” in the family flat and that the father had kept showing him pictures of naked women on his phone in front of his mother.
In May 2012, A disclosed to the social worker that had watched porn with the relative Y and “seen real live porn”. Y had shown him “how to ride using pillows” and A was scared in case the relative would do something to him and B.
The social worker also met with Child B in May 2012, who reported that Y “woke him up most nights and made him watch porn with him, he would put his hand down his pants. [Y] would often ride the sofa and the bed. He went into the room and [Y] was riding the bed.”
The relative often showed him pictures of naked women on his phone and would ask him to score out of 100 which was the hottest.
B told her that he would punch the ground and trees when he thought about his mother. He worried about her because he had often seen his father hit her with a bar from a broken bed. Their father locked them in sometimes and the mother would stand at the window shouting for him to come back. B said that his mother was often distressed.
This brought to an end the reports contained in the Section 23 application to admit hearsay evidence.
Care Order hearing
The social worker told the Court that the ICO had been granted on consent. Children A and B had been placed in one foster placement together while Children C and D were placed in another.
The foster parents for the older children reported that they did not have much self-care skills and they did not know how to wash. There were reports of sexualised behaviour and issues around behaviour.
The foster parents for the two younger children reported that Child D was expressing sexualised behaviour which involved humping a pillow, there were also issues around the children’s general behaviour. All four children were hyper or very distressed.
Once the ICOs were made a lot of work commenced with the family involving parenting support, counselling and relationship issues. Sometimes the parents agreed there were deficits they needed to address, sometimes they didn’t.
Under cross examination from the father’s barrister, the social worker told the court that Child A had made allegations of physical abuse against his father during the time of the first Supervision Order. When the child had told her that his Dad hit him, and she had suggested “slapped, punched and hit” he then replied “all of those things”.
She told the court that she had not seen any evidence of bruising or physical abuse on the children during her time with them apart from the father being rough with A when he grabbed hold of him. She had visited them once a week with the Public Health Nurse. Although she had approached the father about the allegations he had denied them.
A had not expanded on the allegations.
The first Supervision Order ran for three months during which time the OARS support service had been unable to get into the family home. A pattern had established with the parents where they would make an effort in the beginning to co-operate with services and then ease off. By the time of the third Supervision Order, Family Support or OARS was in place but there was difficulty getting into the family home and the OARS four week assessment was never concluded.
The four week assessment was in relation to parenting skills to see what supports were needed in the family home. Family Support was there to help three to five days a week with housekeeping, parenting, getting the children ready for school and being bathed in the evenings but they had difficulty getting into the house. Co-operation with the department was sporadic, there were periods when it was good and periods when it was not.
The department also liaised with the school, the PHN and the Gardaí during the third Supervision Order. The barrister for the father asked if anyone had made a report to her or expressed concern around physical assault. The social worker replied that they had not or it would have been in a court report.
The father’s barrister then referred to the Garda interviews of Child A between November 2013 and March 2014 where he alleged physical assault by his parents. One incident had involved “physical assault by his father in the day time, by smacking him and putting him through his Dad’s car window, scraping him on the ground and strangling him. He stated that his mother witnessed this, his head was bleeding and there were cuts.” The barrister asked if the social worker had witnessed any evidence of this assault to which she replied she had not.
The barrister then asked about the allegation that the children’s parents forced Children A and B to eat poo from the toilet, had any of the people the department had liaised with expressed concerns around gastric upsets. The social worker replied that there had been no evidence of gastric upsets.
“[Child A] alleges that he ate poo loads of times, is it likely then somebody would have seen this?” asked the father’s barrister.
“That’s for me to adjudicate,” remarked the judge.
“The social worker is aware of the degree of supervision,” said the barrister. “Could it have been going on without it being reported?”
The judge said that he was prepared to accept that if someone had a suspicion it was going on that it would have been reported however “the absence of evidence is not evidence of absence”.
Following this the father’s barrister referred to the Garda interview transcripts, which stated: “[A] stated that he had to steal food from the local shops. He alleges that his father beat him up all the time with a stick, on the bum, on the legs, sometimes he had his clothes off when it happened. [A] alleged that his Mam and Dad burnt all his clothes. On an interview on the same date with [Child B] he describes that his parents burnt all their clothes, that they had no clothes and were naked outside and a neighbour [R] gave them clothes.
“[A] alleges that his father nearly killed him by running him over, his parents were both in the car, he just hit me in the stomach with the car, he hit him with the car on the legs as well as the stomach.
“[A] alleges that his Mum and Dad forced him to take drugs in his drink with poo and wee. Alleges there was a lot of white powder: ‘I figured out there wasn’t any drugs in mine so I swopped mine with [Child D] when our Mam and Dad wasn’t looking.’”
After each allegation the father’s barrister asked her if there had been evidence of the allegations or attendance at hospital for injuries. The social worker replied there had not.
The father’s barrister continues to go through the allegations within the Garda interviews on the transcripts. She reads: “[The father] threatened to kill them, including [Child D]. [A] alleges that [his father] had sex with him in a jeep. Did the children state he had a jeep?”
“No,” replied the social worker.
“Stated he had sex with [his relatives] with the parents present in the next room. Did [A] during your time with him ever make any allegations of sexual abuse against his parents?” asked the barrister.
The social worker replied that he had not.
“[The father] peed in [A’s] mouth and [his mum] pried it open and he had to swallow it and it happened loads of times. Did you or any of your team have any suspicion of this kind of abuse in the home?”
The social worker said they had not, it had not been reported to them.
“Alleges Mam and Dad would force me to pour the kettle over my head. Was there ever any evidence of scalding or burns?”
“No.”
“My Mum used to kick me in the stomach with her foot.” The social worker had no knowledge of this.
The barrister refers to the allegations of punching in the transcript and points out that when the social worker had interviewed [A] she had suggested to him that his father had punched him and he had agreed with the suggestion. The social worker replied that in the Garda interview the child was saying that both of his parents punched him.
Following on from these allegations the father’s barrister refers to a proposed finding of fact, that the two older boys had made consistent allegations of intra-familial sexual abuse involving the children and that the abuse appeared to have been of an organised nature involving a number of members of the families. This was the proposed conclusion by the CFA.
The barrister asked the social worker if the parents would have had the organisational skills to keep timetables regarding the abuse, as alleged by the boys. The social worker replied that she did not think so as they had been given journals to help them attend appointments which they had always lost.
When the children were received into care they all had medical examinations within two weeks, no physical problems had been noted and there had been no malnutrition or evidence of gastric problems, said the social worker.
The main concerns on the first reception into care were domestic violence, physical abuse, emotional abuse, neglect, drug taking and alcohol abuse. Abuse of substances had played a large part in the neglect because there was no money for food. Furthermore the parents were not getting up in the morning to bring their children to school, the children were not attending their medical appointments and the father had taken two overdoses. He had also attacked his eldest son (from a previous relationship) and broken his arm, the children had been present for that. The father had been paranoid and had the children checking to see if there were men under the bed and in the flats.
“He didn’t engage as a parent,” said the social worker. “He didn’t take on a parenting role within the family, possibly down to substance misuse, alcohol and mental health. He also believed [for specified cultural reasons] that he didn’t take part in parenting.”
The social worker did not agree entirely with the Professor’s report that partner violence was more likely to appear in the context of destabilisers, she felt that although it played a part it was not the only reason for his aggression. She told the Court that the father was involved in a lot of feuds.
When Child A had made allegations against his relative [Y] of sexual abuse in April 2012 she had subsequently contacted the Unit and made a referral. One month later, a referral for all four children was deemed necessary when sexualised behaviour had been reported regarding the two younger children. Child protection notifications were forwarded to the Gardaí and the child care manager regarding all four children.
By October 2012 the Gardaí were not in a position to carry out the interviews, said the social worker, so the department held a meeting between the GAL, the Gardaí and the Unit in order to see if joint interviews between the Unit and the Gardaí could take place but they were told it could not happen.
While she was still working with the family (up until November 2012) the relative [Y] still had contact with the extended family, and he had been present at Child B’s Communion although the child had not wanted him there.
The father’s barrister went through the timeline with the social worker regarding the children’s interviews. She said that the boys were interviewed by the child sexual abuse assessment and therapy unit a total of 15 times between February and August 2013.
“During that time allegations against [Y] were expanded to include allegations of anal rape and so on, during that process of [the Unit] there were no allegations of sexual abuse against the father, there was an allegation of behaviour between the mother and [Y] by [Child B], during all of that time the reunification plan was in place and progressing.”
Then the two youngest children were returned home to their parents in November 2013.
“On the last day you stated that [A] took on a protective role with his younger siblings, [A] had not been in contact with his parents, had not visited their home, not been made aware of the reformation made in their lifestyle, can you see the fear of the return of these two infants to the home was a motivation for [A] to make up the information?” asked the father’s barrister.
“Knowing [A], he would want to protect his siblings,” the social worker replied.
“Could you see his fear of a return of those two infants to what he may perceive as a return to the conditions he was in?”
The social worker said it was quite possible that A could have been concerned his parents were still using drugs so he could quite possibly have fabricated it.
The barrister asked her if Child B was known to make up stories. The social worker replied that Child B liked to get attention and if he felt he was getting attention he might make up stories.
“If he saw [A] was getting attention telling stories he would follow suit?” asked the father’s barrister.
“Yes,” confirmed the social worker.
Under cross examination from the barrister for the GAL, the social worker told the court that she had witnessed heightened aggression from the father towards the mother in the family home. He had been so aggressive that she herself had felt intimated and had advised the mother to go to a women’s refuge. She added that the children had observed his behaviour and that they were also aggressive towards each other, she had witnessed Child A threaten Child C, telling him: “I’m going to smash your fucking head in with this mug.” The mother had been oblivious to the aggression between the children.
The social worker told the court that the mother sometimes accepted that Child A had seen violence in the home, but sometimes she did not accept it. She did accept that she had had a bottle smashed over her head and that Child A had deliberately set fire to their home, he then flooded the next home. He had been offered seven primary care psychology appointments for his behavioural needs due to these incidents.
The social worker then told the court that she had had concerns about substance abuse regarding both parents from when she became involved with the family in March 2011 up until to August 2012, when they both began to provide clean urine samples. The barrister for the CFA would later tell the court that the father had given two positive opiate samples in August 2013.
The social worker was satisfied that the father’s behaviour came within the definition of sexual abuse which includes “showing sexually explicit material to children”. She gave evidence that this is often part of the grooming process.
The barrister for the father questioned the social worker about whether or not the children’s foster mother had been questioning the children about the abuse. The social worker responded that she had no factual information, but was concerned that she may have been questioning the children and in hindsight there possibly were discussions.
The judge asked the social worker if the CFA had carried out an investigation in relation to Y, she replied that no investigation had been carried out while she had been handling the case.
She also told the judge that when she had been in the house the parents had been under the influence of drugs as well as alcohol on occasion and while the mother was functional she was very “high”, however the father had neither been functional nor coherent.
In relation to Child B liking attention and making things up, the judge asked if the social worker felt he had ever made things up and she thought that he had. She gave an example of him saying he got an award at school, but he would not have been in school at that time.
Allocated social worker January 2013–January 2014
The next social worker told the Court that the restoration plan for the family had been for the parents to remain drug free, for them not to engage in domestic violence, to attend YAP, ACCORD, anger management and drug counselling.
Children C and D had settled very well in with their foster family as had their two older siblings. Child A had said he wanted to return home while Child B said he did not. However A would change his mind quite frequently and was nervous, he asked a lot about how his parents were doing and had a lot of dreams about domestic violence and drug use.
From day one B did not want to return home and the brothers fought a lot because of this. Separate access was put in for B to improve his relationship with his parents.
Family therapy explored domestic violence and the parents engaged in every session, this was late March 2013. She was meeting with A weekly or fortnightly and had explained the therapy process to him and how it would help ensure no domestic violence in the future.
Some progress was being made by the parents in terms of the restoration plan but the CFA felt it necessary to continue the ICOs and quite a lot of work needed to be done.
The social work report from April 2013 stated that the mother’s urinalysis results were negative but were fortnightly instead of weekly, this meant the urinalysis was not always catching up on the drug use. The tests then became weekly three weeks out of four in May. The father missed attending for two samples that month and this lead to a concern that drug use may have occurred.
Family support was provided in the home when the children came to visit, however for a period of three weeks they could not gain entry into the house and the mother was asked to re-engage.
In August 2013 the parents admitted violence to the family therapist and acknowledged they had failed their children, that there was neglect in the family home, drug use and self-medication.
Child A stopped attending access in October 2013, he was nervous of his parent’s reaction of what he had reported in his assessment at the Unit. The social worker said that he was always worried about domestic violence and being abused again if he went home. He presented as quite an anxious child who bit his lip and nails to the point of bleeding.
By this time the parents were remaining drug free, there was positive access and they had admitted to domestic violence, their new home was being kept quite well. Children A and B were clearly saying they did not want to go home so the decision was made at a case conference to return the two younger children as it was decided that the threshold had not been met for an ICO for all four children. “They could only manage two children for the foreseeable future”, said the social worker.
The GAL for the two younger children was to remain involved for six to eight months and a huge package of support was put in place. This included OARS who got the children’s routine from the foster mother and put it on the parent’s fridge. The parents continued to attend for urinalysis and YAP.
Child D had been very attached to her foster mother, the social worker described her as a delicate child who had been in foster care from the age of two (at the time of this hearing she was six).
The children were returned home on the 8th and 22nd of November 2013 and a Supervision Order was granted in respect of both.
The directions of the Court at that time were that the parents were to remain drug free, there was to be no contact with Y and the family had to engage with OARS.
However the father became quite angry with the social worker on the day the Supervision Order was granted and the parents subsequently disengaged with her. The social worker used the supports being provided to the family to do more home visits and she received reports from those services that the parents were doing well and that the children were settling in to the family and home as well as school.
In December 2013 a Full Care Order was granted for the two older boys for three years with both boys saying they did not want to return home. Her involvement ended in January 2014 when the case was handed to the current social worker.
Although the boys had been in care for almost 12 months before their assessment began with the Unit, the social worker told the Court that they were consistent with both her and the Unit in what they had disclosed.
Counsel for the mother put it to the social worker that Child B’s foster mother had described him as “someone who lied 80 per cent of the time”. The social worker acknowledged that B was different to the other children and tried to get attention by being different.
Regarding the relative against whom the allegations were made, the social worker said that he had not attended for interviews with the social work department once the allegations were put to him when he was arrested by the Gardaí.
“In relation to any other children that he was alleged to have had contact with, what steps did the HSE take?” asked senior counsel for the mother.
“It was referred down to the duty social work department.”
Counsel for the father told the social worker that the children’s parents felt that the foster mother for Children A and B was negatively disposed towards them because of their background. The private fostering agency did “a piece of work” with the foster mother about engaging with the child-in-care review and the parents.
Counsel for the father asked the social worker if it was possible that the foster mothers for the two sets of siblings were sharing information about the disclosures at joint access. While the social worker said that it was possible, she told the court that foster carers were trained that everything about the children in their care was confidential.
A psychological assessment was carried out on the two eldest siblings prior to their assessment at the Unit. However this assessment was not given to the team at the Unit and the social worker did not know why. In the psychological assessment the doctor noted: “[The foster mother] noted that [B] is in trouble on a daily basis for cheek and mischief, his behaviour is strongly motivated by attention from adults and peers. Even his teachers said he is a compulsive liar.”
Counsel for the father asked the social worker would the assessment not have been of assistance to the team at the Unit in order to determine credibility in their assessment, the social worker replied that she did not know.
Notebooks had been brought into the Unit by the boys. Counsel for the father tried to ascertain if the notes within them had been written with the support of the foster carers or by the boys themselves, as the drawings and notebooks were utilised and relied upon during the course of the assessments by the Unit.
The boys were writing in their notebooks, said the social worker, and the foster mother had been advised not to react to what they told her, but to also write it down and forward it on to the private fostering agency. She was advised not to ask questions, just “to write it down, let them talk and not to lead the way.”
Regarding [Y] there was no evidence of further contact during the time the two younger siblings had been returned home under the Supervision Order, said the social worker. They had made it very clear that the consequences would be far-reaching. However, she added that “we were never fully sure if he had contact with [Children C and D] when the children returned home.”
The social worker said that she was not sure if Y had been arrested and she thought that he had been spoken to.
Counsel for the mother pointed out that Y was attending a service where there were children on the campus, she asked had the organisation/service been informed. The social worker replied that she had not informed them and she did not know if the next social worker had.
“How did you assess a risk posed to children by [him]? Did you assess it?” asked senior counsel for the mother. “We felt that [he] was a risk to children, he refused to attend for interview and we liaised with the Gardaí around monitoring him.”
When asked if she felt Child A would have fabricated the allegations against his parents due to fear around what could happen to his youngest siblings when they were returned home, the social worker told the court that she was always trying to reassure him that there was no violence and drug use. She visited them from school, and would go out with the boys for an hour and then drop them home, she filled them in on the level of Family Supports, OARS workers in the family home morning and evening and that their parents were not taking drugs or drinking. “He knew they were doing good,” said the social worker, Child A saw the family home and told B that it was done up.
The social worker told the GAL barrister that although the father had admitted in family therapy to being violent to his partner, the children’s mother, and had accepted his use of weapons, he had always denied violence perpetrated on the children.
In relation to the two youngest children returning home in November 2013, when Child D was three and a half and Child C was five and a half, the youngest child had indicated that she did not want to go home. However the social worker and the GAL had met and decided she had good attachments with both the foster mother and her mother and decided she would go home. By that time she had been in care for 10 months. Her foster mother told her she was going home on the same day as she was transferred there.
Incident reports had come in from the foster mother of Children C and D in March 2012 when Child D was moving her pelvis and grunting in a particular fashion, said the social worker. When asked what she was doing by the foster carer, Child C described it as “having sex”. She said that C had described watching “the naughty one” with his parents therefore she believed he had seen pornography.
She said that there had been concerns in the foster home relating to C masturbating, however when she had discussed this with the Unit she was told it did not meet the threshold for referral, they felt it was self-soothing behaviour related to a sensory condition and advised that he be given something tactile such as a teddy bear. When the reunification plan was being finalised in October 2013 the masturbation had settled.
The social worker added that the Unit had found credible Child B’s account of seeing his mother in bed with his relative and they found this to be an impediment to a safe and trusting relationship between mother and son.
When the mother was told that the allegation had been found to be credible she had strongly denied it.
In relation to the parent’s position that the two younger children had not been exposed to Y, the GAL put it to the social worker that in fact the parents had stated that on the weekends they were using drugs their children stayed with members of the extended family where Y also resided at that time.
“He could have been there,” said the GAL barrister.
“I suppose, yeah,” replied the social worker.
“That wouldn’t have aligned that he didn’t have access to them.”
As the day’s hearing drew to a close the judge pointed out that the referrals to the child sexual abuse assessment and therapy Unit had been made in October 2012 with the first interview commencing in February 2013 which was “quite a delay”.
He asked the social worker how long it had been intended that OARS and Family Support would have remained involved with the family when the two youngest children had been returned home in November 2013. The social worker replied that family support would have stayed “as long as they could” and that OARS would have done an assessment and put in a plan of intervention, they had been there four days a week to incorporate the assessment at that time and it had not been anticipated that the family would have needed four days a week after the assessment had been completed but “it could have been given”.
Application for Discovery
The judge made inquiries about a potential application for discovery by the CFA. The CFA wanted to ensure the allegations of sex abuse by Y and alleged admissions made by him to family members would be admissible in this application. If the other parties would not allow that evidence, the CFA would require discovery of the Garda investigation file concerning the allegations of sexual abuse by Y. The parents agreed to allow the Garda incident report into evidence and did not contest it. However, the judge had concerns regarding the Garda investigation file because the Gardaí were not involved in the case and the file had gone to the Director of Public Prosecutions.
The parties discussed whether or not the incident reports could be admitted as evidence to the court. The barristers for the parents told the judge that they accepted that when the children made allegations of sexual abuse by a family member they were referring to Y. However, any reference to the mother and Y having sex was absolutely denied. The parents also accepted that domestic violence took place but said that the circumstances in the family home had changed. The barrister for the father told the judge that there had been no contact between the family and Y.
The judge then pointed out to the solicitor for the CFA that they based their application on the information they had when they made the application and this information regarding the Garda investigation had only come to light during the trial. Therefore, the judge reserved his position and said that the court can direct anything else it needs to make a decision. The barrister for the CFA withdrew the application for discovery of the Garda file on the basis that it could be brought again if necessary and depending on whether the Court needed it to carry out its inquiry.
The barrister for the GAL said that were roughly six accounts of sexualised behaviours by Child C and that Child D made references to “watching videos with willies in them”. D also said that she had played a game called “willie touch” with her parents. The barrister for the GAL pointed out that if those allegations were being accepted, there was no point in continuing with the hearing. The barrister for the mother said that they would be challenging that evidence and therefore the foster mother would need to be called as a witness.
Expert witness for the parents: expert on memory and forensic interviewing
An expert on memory and forensic interviewing was called on behalf of the parents. The expert’s role was to assess the forensic interviews and evaluate the quality of the interviews in order to provide evidence on the reliability of the information extracted in the interviews carried out at the Unit and with the Gardaí.
He was of the opinion that one would need both the DVDs and the transcripts of the interviews in order to provide an accurate assessment (the expert witness for the CFA had not had the transcripts of the Unit’s interviews).
A number of issues were discussed over a period of three days with the expert witness for the parents, including the number of interviews that each child was subjected to.
The barrister for the father put the expert’s report to him and highlighted the issues raised therein regarding repeated and suggestive interviews, closed questions, false memory and anatomical dolls. The witness gave examples of suggestive and repeated questions which increase the chance of false memory or lying. He also gave evidence that the use of anatomical dolls is not supported by literature and they should not be used unless it is proved that they are reliable.
The witness said international consensus was that testimony should be elicited through open prompt. An open prompt is one which allowed the child to respond using as many words as they are able. For example, “Tell me what happened… Tell me more about that… what happened next?” He said that in transcripts with open prompts forming the questions, one can delete the questions and have the testimony of the child stand alone. He said that children find it difficult to answer before and after questions as well as more focused or yes/no questions.
He gave evidence that in the questioning of the children by the Unit there was evidence of open prompts. However, there were also examples of closed questions. He criticised the assessment protocol used by the Unit as it was more than 10 years old and was not up to date with developments. He also criticised the quantity of interviews undertaken, distractions during the process, the introduction of dreams, the introduction of external notes and the failure to explore the definition of sex provided by Child B. He concluded that certain passages of the interviews should be treated with concern.
The judge requested a consolidated document, if one existed, with regard to assessment protocols for both the Unit and the Garda Child Specialist Interview Team.
When the expert returned one week later to resume his evidence he was asked to give his opinion on Child B’s interview by the Unit in August 20th 2013, the child’s last interview there had been on April 10th, four months previously.
He found that the interviewer had engaged in suggestive techniques and a combination of repeated interviews and suggestive techniques was used. He told the court that when this combination occurred children acquiesce when they perceive that the interviewer wants to hear something.
He also found that biased suggestions were being put to the child by the interviewer. “Bias refers to the motivation of the interviewer, a preconceived attitude, [the question] is put to the interviewee in a way that they want a particular answer,” he explained.
If open prompts were used the child was instead put in a position to remember from their own recall. With repeated interviews and repeated suggestions one tended to see inaccuracy.
“[Child B] is told to think between now and the next interview about what to say. ‘So will you have a wee think?’ [B] agrees and says: ‘yeah’. It was concerning to see the interviewer now priming [B] for discussion about ‘the dirty stuff’ when they meet next for the eighth interview. It may have set up a suggestive expectation in the mind of the child and research has shown that it can lead to inaccurate information and untrue allegations,” said the expert. “An untrue allegation means that the child has fallen foul of the interviewer’s suggestions (it might mean that and it might mean they’re lying). It is very rare to find examples where children have wilfully lied.”
He said toys and drawings were being used during the interviews and they could be a distraction, forensic interview guidelines around the world recommended freeing children from them.
Regarding the interview on the 28th of August 2013 with Child B, the expert pointed out that the interviewer tells B that his foster mother has told her that “he has one or two things to tell still. It is concerning to see that [the foster mother] has been talking to [B] about disclosures because of the possibility of suggestive influence. The Other Person Told Me ploy does not provide an opportunity to discuss something in response to open prompts.”
This then had an effect on the reliability of the disclosures and evaluating the quality of the forensic interview posed a problem. The information should have been elicited in a very neutral manner.
He pointed out that there was another reference to talking to the foster mother about disclosures when B says during the interview: “I’m getting used to talking to [her] about them.”
The expert found that the interviewer had pushed B for more information when he had already said he did not want to talk. It would form suggestibility as pushing for information was a suggestive technique.
There was also the issue that the interviewer had told B of things that Child A had said: “[A] said that [Y] put his willy in his bum, did [he] do the same to you?”
The expert then discussed Child A’s interviews with the Unit. He pointed out by this stage in the timeline, Child B had already been interviewed at least six times which meant that A may have already been primed to discuss certain topics because the two boys would have been able to talk beforehand.
He said there was a biased beginning to the interview as the interview tells the child that they “talk to boys and girls about touches to their bodies” and they would mainly talk about [Y]. Then the foster mother who was present at that time makes some suggestions and tells the interviewers “[A’s] dreams are about his Mam and Dad fighting and stuff, you would have bad dreams, wouldn’t you?” This was a suggestive influence.
The foster mother then leaves before the interview begins. When A is asked what he wants to talk about he says that he needs her help to talk. The expert points out that this is another example of her influence: “What is the motivation of the foster mother? Should the possibility of motivation be investigated?” he asked.
Suggestion was introduced quite early on in A’s set of 11 interviews, the expert told the Court. During this first interview, half-way through the interviewer tells the child: “I know from talking to [your foster mother], I know lots of different stuff happened.” This seemed to be an absolute affirmation from the interviewer that things had happened. Telling a child you already know what happened was a powerful form of suggestion.
“With a combination of bias and suggestive techniques the reliability of the information is diminished.” Furthermore research showed that biased techniques and suggestive techniques can be carried forward from repeated suggestive interviewing.
The expert found that there were a number of statements by the child in his narrative account of serious allegations of sexual assault by his relative that provided context to the previous interview and gave credibility. The child describes in detail being threatened by Y with a knife, the child said the relative said not to tell and that he could not push him away, that his relative had told him not to tell B and he told him not to tell his Mam and Dad. “[He] said he would kill us. I’m worried [he] will come back and kill us.”
“If a child is threatened we know from scientific literature it makes someone fearful,” remarked the expert.
In an interview on August 19th A also provided some more information that provided a context, saying that “it did not happen every time, he would do if for a few days and then would stop”. He also provided information of grooming by his relative: “[Y] was nice to us for a few days before it started.”
Opinion on the Garda Interviews
In relation to the Garda child specialist interviews, which had commenced in November 2013, the expert said that an element of concern was that these interviews were conducted after a number of interviews had already taken place. The two boys would have had quite a few opportunities by that point to discuss what had happened and other grown-ups around the children could have been discussing the allegations made.
He had the impression that the children seemed much more confident in these interviews and although the interviews themselves did not seem particularly biased the question asked provided clues that the plausible answers could be made up. For example:
Question: “What did he burn your clothes with?”
Answer: “A lighter.”
Question: “Where did the poo come from?”
Answer: “The toilet.”
The expert noted that the children were referring to their foster parents as Mum and Dad which was concerning because they might want to stay with their new Mum and Dad and there were concerns about what the effect of that might have been. The interviews seemed to contain a lot of information not previously provided in the first sequence of interviews.
“Some of the allegations are amongst the most extraordinary things I’ve seen children say and I’ve read hundreds of interviews for court cases and scientific research. These interviews stand out with unusual allegations made and I’m concerned that they [the children] came with a list of topics to discuss. I don’t know the context of these lists,” the expert told the court.
Taken as a whole he had not seen allegations of that type together, “in combination if it all took place it would be very unusual”. He had also seen these types of sexual abuse allegations from children before but not combined with the other allegations.
The notes were prepared by the boys before the interviews, but how were they prepared? he asked. The interviewer had read from the notes, using them to cue the child’s response rather than eliciting information through open prompts. For example:
Interviewer: “So you said ‘[Y] made me touch his willy’.”
The expert pointed out that Child B remarks that he felt annoyed and surprised that his Mam and Dad would let his relative do that to him. This is the first time he says his parents knew about it and fact-finders should have read through the transcripts for this type of information.
He had noted a lack of sensory detail about an experience alleged by Child B in response to an open prompt that his “Dad peed in his ear” which would indicate caution with regard to that allegation. The child then continued to provide new undisclosed information and elaborations on earlier information. He speaks about another person and being in bed with her.
The expert was concerned that child protection information might have been given to B and that possible motivations existed. During the Garda interview he had told the Garda: “I’m just doing the interviews so I can get them [children C and D] out of my Mam and Dad’s house.”
He also noted with the Garda interviews that as they progressed there appeared to be an elaboration of previous allegations.
“There has indeed been a concern of snowballing of information from both boys. Has it produced true allegations or untrue allegations? The manner in which the interviews were conducted may have led to untrue allegations,” said the expert. “Both boys can be seen incorporating information provided to the interview and shaping their interviews over time.
“The scaffolding for untrue allegations is all around us, the boys were shown pornographic films and they were given anatomically correct dolls. What is the reason in the mind which would cause children to produce untrue allegations? If they have seen pornography they’ve had explicit knowledge of what was being asked of them. The mind tries to fill things in a bit. Research shows that untrue allegations can be formed through suggestive interviews and repeated interviews,” the expert told the court.
“Due to the nature of questioning I would urge caution to placing reliance on the interviews,” he added. They were poor quality interviews that did not follow the ABE approach, Achieving Best Evidence. He acknowledged however that their job was difficult due to the fact the interviews at the Unit had already taken place and some of those interviews had contained suggestions.
Nevertheless, he did not regard the police interviews as seriously flawed in relation to the majority of the evidence elicited. His conclusion was to urge caution with the material.
The Retraction
Child A indicated a retraction to his GAL on the second day of the full Care Order hearing when his GAL had gone to find out A’s opinion on giving evidence in court. He had also indicated a retraction in December 2014. Senior counsel for the mother asked how the retraction should be approached.
The expert told the court that a retraction or recantation was not necessarily indicative of false allegations and the goal must be to consider the nature of the allegations and the circumstances in which they were elicited.
He noted that the retraction made to the GAL had not been recorded which was itself a lost opportunity to conduct an interview, exploring what was meant by the recantation using open prompts. “Some children will recant allegations of abuse, some of it is true and some of it isn’t.”
Some consideration to an interview may now be warranted if some of the details were probed in an appropriate way, open prompts could be followed up with questions. A plan would be needed moving into the interview. A DVD recording and transcript would be needed to see the affect, poise and emotion of the child. He added that a person with no bias should carry out a very neutral interview.
He told the court that he was surprised to see that the recantation had taken place and also surprised that it had not been recorded and explored, this was “a lost opportunity to provide additional clarity. There needs to be a very serious discussion about what needs to be clarified in that interview and what needs to be put.”
Recantation could happen for a whole host of reasons including an understanding that there would be consequences for the family and that could lead to recantation. There was no silver bullet to say the child was coached or if it was an accurate recantation, he told the court. “Why is the question. Looking at the recantation, they’re not going to randomly decide to recant an allegation.”
Further on in the hearing, the judge asked the expert how rare it was for children to lie about such allegations. The expert told the court that it was more likely a child would have fallen foul of the pressures exerted on them if they produce extraordinary information, rather than to blame them for lying. In a database of more than 40,000 well-conducted interviews, there was only one case study where the child had deliberately lied and that child had been very young.
As children got older there were many other motivations that might be influencing them, he told the court. For example there was a case involving a boy who had deliberately burnt down his father’s house and garage, but another child, who was in his early teens and trying to be tough, admitted to it admitted to it,.
In conclusion, he told the court that he was concerned that the approach taken by the interviewers in the Unit was out-dated and that they had not kept up with developments in the previous decade. There was an importance of reviewing and reflecting on one’s own interview practice, over time skill fail occurred, resulting in a return to base line. Interviewers who receive opportunities monthly to review their work go on to become very good interviewers. The expert told the court that both he and the forensic expert for the CFA trained such interviewers. Auditing of training for interviews would be the new frontier.
Finally that day, the barrister for the father told the court that Child A wanted to give evidence: “He wants his voice to be heard, he is very anxious about it.”
Forensic clinical psychologist
A UK-based court appointed expert in forensic clinical psychology specialising in conducting assessments on behalf of a court or agency associated with the law told the Court that most of his work involved conducting and analysing forensic interviews of children (Achieving Best Evidence interviews conducted by the police) and he sometimes conducted additional interviews to assist the family court.
The expert gave evidence for two days of the hearing but did not get through his all his evidence. He had been scheduled to return in order to complete it. However the CFA withdrew the Section 18 application before he did so.
In his first letter of instruction in May 2014, he had been asked to assess the potential risk, if any, of [Children C and D] remaining with their parents. He told the court that he had subsequently decided to interview Children A and B in order to get a sense of them as children and that he wanted to get a broader sense of the context in which the allegations arose and whether the children were able to describe positive aspects of family life in the home and the care they had received.
He had expected to do one or two 30-40 minute interviews, however neither of the children were enthusiastic about being interviewed further. As the interviews took place he realised that the parents lived in the same area as where the interviews were being held and both boys were anxious their parents might find out they were being interviewed again. Child B had asked him if there was a strong person in the building because his Dad was big and strong and he was worried about what would happen if he came in. “With hindsight it was not a good idea to hold the interview there, [the child’s] insecurity and fear at that time was genuine in relating to the return to that area.”
Both boys also said they’d had enough interviews and did not like thinking about things, so he had one conversation with both of them.
The expert found that Child A now felt better than when he had taken part in the Garda interviews. “Things are better now,” he told him, “I don’t feel miserable now. Talking about bad stuff that happened to me makes me feel miserable.”
His perception of the child was that he was afraid of his parents, “don’t tell my Mum and Dad about this because they might come down,” he had said.
He was parental in protecting his siblings and talked about protecting his siblings from adversity and actually helping them. He was positive about his siblings, it was heart-warming, A was engaged and interested.
However it was a struggle to get a positive experience of parenting, it was very difficult to elicit anything. He said his Mum sometimes took him to play football and he could not think of any other positive examples, he tended to give negative experiences.
A described his life as being just the same stuff all the time, lack of care, harsh punishment, inconsistency. Although a leading question, the expert asked him about positive acts from his parents. A said that sometimes his Mum tried to stop his father from hitting him with stuff like a plate.
The expert did not ask A to repeat previous statements, “if what went on before was false then me getting him to repeat it wasn’t going to make it credible.”
The child told him: “They had sex with us, that’s the one I don’t like talking about, it makes me sad.”
Nothing new had emerged.
He described an astonishing level of self-reliance and self-sufficiency. If he hurt himself he would go and get something and put it on himself. There was no sense of expectation of care and nurturance. “It has a relevance to the possibility of false allegations, you might make the case that these children had an emotionally and physically impoverished life and suddenly found themselves in a warm and nurturing environment which gave them the motivation to generate allegations of abuse, as best I can establish that was his position at the time.”
The expert looked at what he would like to improve with his relationship to his parents. A had been very resistant to answering that and just said “nothing could improve”. He was pressed on that and became increasingly unhappy, he said his wishes were that “my Mum and Dad wouldn’t hit me so much or so hard, that’s all I’m saying, I’m finished.” He didn’t feel it was possible for things to be different.
A was given the opportunity to correct any key thing that was untrue or wrong in his previous interviews with the police. “All we had with respect of the police interviews was a horrible piece of interviewing,” the court appointed expert told the Court. “The provenance of the lists was unclear and I was worried that these children may have been led to make false allegations, it was a possibility at that stage.”
A had listened to the expert but said, no, it was true. “I think what he said was honest but unlikely to be completely informed by his memory of his family of origin or the interviews but it would be wrong not to give the child the opportunity.”
A told the expert that he had discussed things with his brother [B] but he could not give an example, he said they had not tried to get each other to say things.
One concern for the expert was the origin of the later lists used during the interviews by the police, he wanted to know where the lists had come from and whose idea it was. The child responded that he had been told by police officers that they should write a list of things that happened.
With regard to Child B, he positively engaged and then began to worry about the interview in case he might meet his father. “My Dad used to hit me, I don’t know if he would kidnap me or not, he put me in a black bag before,” he had told the expert.
From then there was a marked switch from being chatty and engaged to being anxious and it was difficult to distract him, his insecurity and fear was genuine in relating to a return to that area.
The responses Child B gave were authentic, not fake, contrived or coached. When asked about a good memory and fun with his Mum and Dad, B said his Dad was never kind and always scary. Although it was unlikely that that anybody is scary or aggressive all the time it was likely to reflect a dominant tone, said the expert.
He talked about his parents hitting him: “My Dad used to punch and hit me with a big stick.”
When asked about his family of origin he said: “They had S E X, the two of them did it. I worry that they might kill my foster Mum and Dad, they say they told me to say what happened, but they didn’t, it’s true.”
B was also given the opportunity to change anything he had said in the police interviews that was wrong or untrue. He said: “Yep, that my Dad shot me with a gun, he had a gun but he didn’t shoot me, everything else is true, the hitting and the S E X.”
He talked about being hit with a spindle from the stairs, the expert could not get anything about nurturing or comfort and the child just talked about his older brother looking after him. He also said that A would help him by getting hit instead of him. A had also volunteered this information in the DVD.
His interviews with Children A and B took 1 hour and 47 minutes and 1 hour and 3 minutes respectively.
Assessment of the interviews at the Unit
The expert told the court that the interviews were “overall good enough as interviews”, however there were a number of ways in which the investigation as a whole and the interviews and records could have been improved. Taking the positives and negatives as a whole, the interviews in the Unit could be relied upon substantially. In essence, he was impressed with the management of the interviews by the interviewers, they clearly had an eye on the evidence but also adopted therapeutic techniques.
In the expert’s final report he had written that the Unit’s interviews were “good enough to generate evidence of forensic value in child care proceedings, albeit they were setting out to do a therapeutic process.” He added in evidence that it was probably not a sensible approach to try and run hybrid investigations (combining a forensic investigation with therapeutic techniques).
He discussed the used of sexually accurate dolls by the Unit and noted that these dolls were subject to criticism, difficult to manage and to be used rarely, if at all. Criticism had arisen for using such dolls in disclosures as they had resulted in a significant rate of false negatives and false positives. “The problem is that dolls don’t normally have those genitalia so inevitably attention will be drawn to them.” The safer and easier route was not to use them.
Their accounts in the Unit did not sound scripted and they did not appear to be coached. His concern would increase with time, “I would have caution with regard to the later allegations regarding the younger children.” He did not regard the interviews in the Unit or with the Gardai as the source of the allegations.
Assessment of Gardaí interviews
With regard to the Gardaí interviews, he did not have a serious concern with relation to the content of the allegations that arose. “The interviews were done well enough so that they didn’t cause the allegations to be made.” There was no evidence of inappropriate prompting.
However he found the tempo to be unremitting in the interviews and they did not display the sensitivity of the Unit. He told the Court that he would have preferred a joint interview approach and it was to be regretted it was managed with separate interviews.
The police had particularly focussed on things that were unlikely to be remembered, asking questions such as “where were your hands, where were his hands, what clothes were you wearing?” It was clearly a forensic process with the Guards and he could see a consistency coming from the boys in terms of presentation but not in terms of content.
The series of notes coming in from the private fostering agency appeared to be critical and triggered a police investigation of a different order to that previously investigated.
He was not necessarily critical of the use of lists because if they were truly generated by troubled children who had thoughts in their heads he would be quite happy for them to be brought into an interview.
In order to get the children to make the allegations made it would require much more than simple suggestive questions in terms of the quality and content of the allegations. It would just be blatant. “There would be absolute suggestions that x, y and z took place followed by acquiescence that x, y and z took place.”
There would also have to be systematic coaching, if you combined one with the other there might be a case that the evidence was false.
When watching the interviews, what had struck the forensic clinical psychologist was the level of neglect reported by the boys which was the bare minimum of love, affection and care and physical attention. The boys had made a distinction and said the younger children were not physically abused as they were. “The physical abuse described would cause a concern as to the parenting.”
The pattern in this case which was of delayed disclosure and subsequent retraction had been found in a significant minority of genuine cases which also followed this pattern. “What we have here is a rather unsatisfactory middle position,” he said.
He told the court that a group of professionals had argued that delayed disclosure and retraction were more likely to be true allegations due to the trauma of family relations and sexual abuse, the other extreme is that they were being retracted because they were false in the first place. “It is quite probable that both true and false allegations happen and both display that pattern.”
A twenty five per cent cohort within a research sample showed delayed disclosures and retractions and these were very likely to have been abused; however there had been some debate on the sample used. He told the court that he had been in numerous cases which the allegations were believed and the retractions that were made were not and that there is a bias to disbelieve the retraction.
It was not so much the mere fact of the retraction but the content and the process that was important, he told the Court.
Escalating disclosures issue
In his experience, sources of motivation for children to elaborate allegations could be caused by children who are placed in care but felt insecure and were therefore driven to get professional support and reassurance through making allegations. That had to be considered with this case, along with the list issue.
He noted that an incident that could have caused fear or insecurity had arisen while the children were in care was when Child B had been told that Y had harmed or drugged his dog. For the child to be told that would be a potentially terribly distressing and worrying event, he said it was “an awful piece of news that may well make a child placed in care very distressed and fearful of harm.”
The forensic clinical psychologist felt that the central point to the case was whether the interviews generated core false allegations of sexual abuse generally and specially related to the two younger children. “In my view they don’t,” he told the Court. “It doesn’t mean ignore the retraction, they are better interviews than would be suggested by the analysis [of the expert witness for the parents].”
Additional information had been sent to him from the Unit concerning Child D, who was reported to have made a comment which on the face of it corroborated comments made by the older children. “Unprompted as it seems, it must be regarded as having significance.”
With regard to his letter of reference which asked him to assess the potential risk presented to the children remaining in the care of their parents, the expert told the court that once sexual abuse had occurred then a risk presented to the other children within that care setting. There was an un-assessed risk regarding Y of future sexually inappropriate behaviour [although the Gardaí were contacted in 2012 by the Unit regarding him]. He would be more circumspect about the allegations of the older children concerning the experience of the young ones.
“Just to be clear, are you saying the boys are credible?” asked the CFA solicitor.
“That’s my view, they are just children as they present they don’t have any particular features that would give me cause for concern, they wear their hearts on their sleeve.” With regard to coaching, he told the court that he had to allow that possibility given that Child B had said he was made to make the lists.
The retraction issue
The expert had considered the two reports from the GAL, the first relating to the December 19th 2014 which recounted that Child A had said: “Why can’t my Mam and Dad be given another chance? The fighting happened one hundred per cent, but the other thing, S E X, I might not be sure about that.”
The child’s starting point was that he thought his parents should be given another chance, therefore one had to factor in whether the retractions were designed to make it more likely that he could return home. However the fact of the retraction was not intrinsically indicative of the falsehood of the allegation, said the court-appointed expert.
The GAL report was dated January 30th 2016 and amended on February 2nd after the GAL had met with Child A.
Child A had made a partial retraction to his GAL, who subsequently made a note of it and submitted a report on February 8th regarding the statement by A that: “the sexual things to [C and D], none of it happened. I just wanted to talk about what happened with [Y] and she [the Garda child specialist interviewer] asked about Mam and Dad.”
The expert said to look beyond the retraction at the motivation and considerations which was in many respects the domain of the GAL, he should be asked what his impressions were in relation to the motivation and veracity of the retraction.
He told the Court to be properly aware that the relationship between the victim and the perpetrator was a close one which was a feature in cases of delayed disclosures. The child is asking, why can’t I go home? “He may be fed up with this care business, particularly if he understands that for whatever reasons his parents have changed.”
Senior counsel for the mother told the expert that the social work department had concerns that the boys’ foster mother was leading them, and that the GAL was also concerned that when the boys were waking up in the morning she would ask them had they had any bad dreams. The expert said this was a legitimate concern but he assumed that guidance and support had been given to the carer.
In conclusion, the expert told the court that he would not offer an opinion on the truth or falsehood of allegations based on the retractions. The allegations were sufficiently odd and unusual not to be from a script, the boys were not enthusiastic collaborators and they reflected real fear and real complaints. He could see no evidence to suggest that the allegations came from the interview process.
The Unit Psychotherapist
The psychotherapist from the assessment and therapy child sexual abuse unit who had interviewed Child A told the court that their assessment had both elements of forensic and therapeutic interviewing. The earlier stages of the interview were forensic and the latter more focussed on therapeutic needs.
In their opinion Child A had provided a credible account of sexual abuse by Y, describing various sexual acts, and also that he was shown pornography, witnessed domestic violence between his parents and it was highly probable that he was exposed to that domestic violence.
The interviewer told the court that there were delays that did not fit in with an average 10 year old in terms of A’s ability to tell a story or give a narrative. Later in evidence the psychotherapist also told the court that children who had experienced neglect may lack the capacity to know what the elements of a narrative are and did not have the experience of talking about themselves and giving accounts of themselves in detail.
Child A tended to give composite accounts she said, which were suggestive of high frequency abuse. They had been unable to get an accurate number from him as to how often those incidents occurred.
She met with the mother and then the father to gather developmental information regarding A from them. A’s mother said that her family had witnessed Y watching pornography at different times and had asked him to keep his door locked. She said that she had only become aware of the sexual abuse allegations after the boys went into foster care, the father was of the same view. He told her that A had told him that Y had done “something vulgar” to him but he was not clear when the comment was made. He presented as very shocked regarding the sexual abuse by Y and did not want to hear all the details.
In her opinion A was nervous about talking about his family of origin, it was source of stress to him that they might get into trouble. Initially he told her that he had watched pornography with his Dad but then went on to say he had only watched it with his relative. He had become quite agitated at that point in relation to his father, it was hard to know whether he did watch the DVDs but withdrew the information to implicate his father less, she told the court.
A had provided sensory details when describing the sexual abuse by his relative. “Sensory detail is something you have to experience yourself, it’s not something that can be gleaned from someone telling you something or watching pornography” said the psychotherapist.
He had also looked at his own role within the abuse, telling her that he felt ashamed that it had happened to him. It added to a child’s credibility that they were looking at their own role. If they were concocting something they would be very focussed on the other person’s role and not looking at their own.
In conclusion, she had found that A had been reluctant to talk about his parents, he had provided core, peripheral and sensory detail, he had been spontaneous and use age-appropriate language, there had been a broad consistency across accounts. He had talked about feeling the abuse was partly his fault and spoke about other symptoms of trauma such as nightmares.
He was referred for individual therapy which would focus on the quasi-parenting role in his family of origin as he would need support to relinquish that role. He also needed to deal with feelings of responsibility for abuse, he needed support to manage nightmares and with help around language to express emotion.
The CFA solicitor asked the psychotherapist if she could offer evidence on the retractions. She told the court that she would consider the context of the retraction and what was happening in the child’s life, sometimes there could be a wide variety of factors including pressure from the alleged abuser.
Cross-examining her, the barrister for the father asked about her use of the anatomically correct dolls. She asked her why the unit used them given that both experts had said they would not use them in any scenario.
The psychotherapist told the Court that there was evidence they were useful. The American Professional Society on the Abuse of Children (APSAC) had produced guidelines in relation to their use and she had introduced the dolls in accordance with those guidelines. Her in-house training on using the dolls had been in 2011 and comprised two sessions, where the management team provided training on how to use the dolls.
The father for the barrister pointed out that by 2011, research had raised serious concerns regarding use of the dolls. The psychotherapist replied that there was also research to say that they were a useful adjunct in abuse assessments.
She believed A had given a partial narrative and the use of the AC dolls would provide him with the best possible opportunity to give details. “There were elements for us to make sense of, his verbal abilities weren’t sufficient, as a result we felt it would provide an opportunity to show and not just tell,” she told the Court.
The barrister for the father then put it to the interviewer that she had used suggestive techniques in her interviews with Child A, including when she said to him that they “talk to boys and girls about touches to their bodies, someone has told them that difficult stuff was happening when he was at home”, that it was a biased interview.
Then the judge pointed out that when she had told him “we talk about stuff that happened at home, it’s then linked to touches with the bodies”. However the interviewer said that she did not feel it was a suggestive technique, but that it was focussed.
The barrister for the mother asked if there was any clinical governance in terms of the quality of interviews. The interviewer replied that there was group supervision and audits, but there was no external clinical governance in place.
The judge was particularly concerned with the way in which at the start of the first interview with A, the interviewer had introduced the issue of Y, and asked her if anything said after that by Child A could be considered to be spontaneous. The witness did not think that merely mentioning Y’s name was suggestive. The judge asked her if she “had any concerns that what happened at the beginning contaminated the rest of the interview” and she replied that she did not. He continued to ask questions about the suggestive nature of the questioning and the particularly repetitive questions, but the interviewer told the Court that that this had been an attempt to clarify as opposed to suggest a particular answer.
Garda Child Specialist Interviewer
Prior to the evidence of the Garda Child Specialist Interviewer, an application was made on behalf of the Gardai by a barrister for An Garda Síochána to observe the proceedings. The judge has discretion under Order 84 Rule 2 of the District Court Rules to allow any person to watch the case. The barrister for the Gardaí was concerned that there might be issues of privilege in the Garda interviewer’s evidence. However, the judge was of the view that an issue in relation to privilege could only arise if the Garda was cross examined in relation to criminal charges and the barristers for the parents confirmed that this would not arise. Accordingly, the judge refused the application.
The Garda Child Specialist Interviewer was then questioned by the barrister for the CFA. The Garda stated that she was a specialist Garda Interviewer with the Child Protection Unit. She confirmed that she had no role in the investigation other than conducting the interviews.
She said that the interviews were carried out in accordance with the practice guidelines. The judge was concerned however that the 2003 Practice Guidelines had not been updated in anyway and did not refer to any other guidelines.
A child protection notification had been made to the Gardaí in May 2012 regarding child abuse allegations against Y. The first forensic child specialist interview took place in November 28th 2013 involving Child A. There had been a logistical delay, the Garda told the court, due to a limited number of specialist interviewers in the Dublin region, the interview suite was very busy. She did not feel that the lack of contact between the child specialist interviewers and the Unit was contrary to best practice because the Unit was a therapeutic facility while the Gardaí were the evidential facility. The judge pointed out that the Unit described themselves as “an independent assessment unit”.
She confirmed to the Court that she was not made aware of the other disclosures made to the Unit prior to her forensic interview. She did not think that their interview process had impacted on the forensic one.
The Garda interviewer told the court that she had found the children to be quite articulate and well able to speak about the topics they had brought up, they had spoken freely when questioned about their allegations.
Good practice guidelines were used as much as possible when questioning children. She had carried out her training in 2008 which comprised a four week module, following which she was appointed as a child specialist interviewer. Since then she had been assessed four times which involved an assessment of their DVDs and whether or not they were adhering to the guidelines.
There had been no updates in her training since 2008 based on the 2003 guidelines.
The barrister for the father put it to the witness that her interviewing had been found by the court appointed forensic clinical expert to contain some leading questions and that her style had been unrelenting and the interview had moved at a “fairly heavy pace”. The garda replied that the interview had been conducted in line with best practice.
Following a protracted line of questioning by the barrister for the father which involved going through the report by the expert for the parents’, paragraph by paragraph, the judge told the barrister that it was a matter for him to make a finding of fact on whether the questions by the Garda child specialist interviewer were open prompts, the Garda was not there to give expert opinion contradicting anything in the expert’s report. “I don’t want you going through this on a paragraph by paragraph basis,” the judge told her.
Following on from this, the Garda interviewer told the Court that she had come across such extreme allegations singularly before such as eating poo, being forced to drink bleach, being forced to drink urine and being smashed through a windscreen, but not all together. She had not sought to corroborate the allegations, she said, as she was not an investigator.
Their interviews were a voice for the children “so they can have their say about what happened to them, they chose notes to help them do that”, she told the Court.
On the topic of notes, she said that it was not uncommon for children to bring notes into the interview suites. The notes (12 in total) had been passed over to her prior to each interview in the waiting room. The foster mother had been present but there had been no discussion of the notes.
With regard to the foster mother’s presence outside the interview room in the waiting room, the Garda told the court that although other people were not allowed in the interview room, if a child took a break they could go out to a parent or a guardian. Children sometimes needed someone in the waiting room to make them more comfortable. The Garda told the Court that she did not know to whom the allegations had been made as that was the investigator’s role.
However the barrister for the GAL pointed out that it stated in the Good Practice Guidelines that the “person to whom the disclosure is made cannot act as a supportive person”. It also stated: “The video recording [specialist interview] should be done as soon as is practicable,” and “Inter-agency cooperation should be done in relation to medical or intellectual disability.” The Garda interviewer told the Court that did not feel that she had been under time pressure during the interviews to complete them.
Issue of retraction and re-interview
The Care Order hearing commenced on February 1st 2016. The partial retraction by A was made on the second day of the hearing and notified to the court on February 8th. On March 31st the two expert witnesses began to look at how the retraction issue would be dealt with after being contacted by counsel regarding the issue at the request of the court. The judge commented that it appeared to be a partial retraction in what was said to the Gardaí but not in relation to the Unit.
The expert for the parents noted during his evidence on February 18th that in the GAL report of February 2nd it appeared that Child A was saying his foster mother had forced him to say things and had told him to write the “Why I’m Angry” letter.
The expert for the parents also told the Court some consideration should be given to another interview with Child A in relation to the retraction. There was no accurate record of what had been said so a DVD recording and transcript would be needed for that interview.
In his opinion, the interview should be carried out in a neutral way by a well-placed person with no bias. He could give guidance and assistance, he told the Court.
He commented that he had been surprised to see the retraction had taken place and also that it was not recorded and explored, it had been a lost opportunity to provide additional clarity. “There needs to be a very serious discussion about what needs to be clarified in that interview and what needs to be put.”
On February 25th, the interview piece regarding the retraction was discussed further. The judge remarked that the court-appointed expert might be suitable to carry out the interview as he knew the allegations, he had already seen all the DVDs, he would have the transcripts and the child did not have to meet another person. The fewer professionals involved overall the better, he suggested.
The judge then said that it would appropriate for the Gardaí to be put on notice of the interview.
On April 26th, the Court heard that the expert for the parents was available to have a conversation with the court-appointed expert, the forensic clinical psychologist. The agenda for their conversation was whether Child A should be interviewed and if so, when and also whether A should give evidence and how either of those things should be carried out. If neither would go ahead, what other proposals were in place?
The judge told the parties that it was he who would make the decision regarding credibility, the matter had to conclude and if a way could not be found for the experts to conclude it, he would have to do it. The interests of Children C and D were paramount and if necessary A would be called to give evidence. The judge wanted the views of the GALs as to how A would give evidence as well as their views on balancing the respective interests of the two sets of children.
Part of the interests of the children was the length of time it was going to take, noted the judge. If it was going to take months for the experts to consider then he would have to deal with it in a matter of days.
Also on April 26th, the CFA had made an application to adjourn the three dates listed for the 27th – 29th of April. When the judge refused to adjourn the application and attempted to hear it, he could not run the case as the witnesses were subsequently not produced by the CFA. He told the solicitor for the CFA that a clear list of witnesses was needed and dates when they were going to be called. He was left with no choice but to formally vacate the next three days of the hearing. It would be hugely detrimental if the case was not finished by June 3rd, he remarked.
Counsel for the parents then pointed out that they could not issue their witness summonses as they did not know when the CFA were calling their witnesses.
The solicitor for the CFA told the Court that when the parties returned to court on May 4th an agenda would be ready and emailed to all the parties by May 2nd. By then the two experts would have consulted with one another and therefore the agenda would include a proposed timeline regarding the re-interview of Child A by the proposed interviewer and the completion date.
The person to carry out the interview should have psychological qualifications, a report would not be required, just a transcript which needed to be done within a reasonable period of time.
He said that by May 4th he would also need a definite position from the foster mother as to whether she would give evidence.
May 4th 2016
A barrister was now acting on behalf of the CFA and she told the Court that an application for an adjournment until May 30th would be sought the following day. May 4th was a specially fixed court date for the Care Order hearing. The judge was not satisfied that once again a whole day had been wasted with no witnesses called.
May 5th
The barrister for the CFA applied for an adjournment to May 30th on the basis that assessments needed to be carried out in order possibly to return the children to their parents. The application was grounded on the evidence of the social work team leader. The barrister for the CFA said that all parties were consenting to the adjournment application.
In her evidence the team leader said that the parents had made progress in relation to their drug use, their mental health difficulties as a result of that drug use and the neglect of the children also as a result of drug use. She said that the parents were in attendance every day, they had consistently attended access and meetings and had demonstrated an insight into their difficulties. Furthermore, she said that the domestic violence is no longer an issue. She added that the social work department could not confirm the sexual abuse allegations made against the parents.
The barrister for the mother asked counsel for the CFA what plans were in place to do reunification work with the parents between now and May 30th. The team leader said that they needed to address the individual needs of each child, the risks to each child and prepare a road map for reunification. The barrister asked if there were issues in relation to the children growing fond of their foster parents and attachment and questioned if the parents would have access between now and the May 30th. The team leader said that there would need to be a child in care review for both of the children before access could be looked at. She outlined that the department had an obligation to ensure that children could transfer a relationship to their parents and an obligation to identify what work can be done with each child and each parent to enable that to happen.
The barrister for the GAL initially stated that the GAL was consenting to the adjournment. He then asked if the team leader was fully aware of the evidence of Children A and B and that there were allegations that they were sexually abused by their parents. The GAL barrister also highlighted that Child D said she played a game called “willie touch” with her parents and that the assessment of A’s retraction had not concluded. The team leader said she was aware of that information and agreed that if those allegations were true, then it would be very difficult to manage the risk to the children.
The judge asked if the CFA still had a case about the risk of child sexual abuse. The team leader said that they did and the judge then queried why they would want to adjourn the case. She highlighted that they had had two retractions. The judge put it to her that a process had been set up in relation to assessing the retractions, but was concerned that nobody had informed him about what was happening in relation to that.
The judge said: “The reality is that there have been retractions that have not been fully investigated and no matter what you tell me that is the real reason you are seeking an adjournment”.
The barrister for the GAL, while earlier consenting to the adjournment now opposed it, stating that the GAL would be reluctant to stop the inquiry at this stage due to the risk of the parents being perpetrators. This was in light of the fact that there was evidence from the foster carer about D having overtly sexualised behaviour. He said that as far as the GAL was concerned, little had changed since the start of the proceedings.
The judge then summarised the key issues as being; drugs, mental health difficulties, violence, neglect, sexual abuse by [Y] and another relative and sexual abuse by the parents. He said all of those issues had to be decided by the court and the elephant in the room was the allegation of sexual abuse against the parents by the older children. He told the parties that that the risk needed to be assessed and if the risk no longer existed then the CFA had a duty to come to court and discharge the case.
The judge highlighted the waste of court time. However, on the basis that the CFA wanted to re-assess and the fact that all parties consented to the adjournment, the case was adjourned to the 30th May.
May 30th 2016
When the case returned on May 30th there had been no progression regarding an assessment of the retractions by Child A.
The barrister for the CFA made an application for an adjournment of the proceedings for six months, [the end of this time period coincided with the end of the three year full Care Order for Children A and B].
In her submissions, the barrister for the CFA told the court that in the interim period since the last day of the hearing substantial work and been done to assess risk [this work was not outlined]. She told the court that “risk management could be done in order to reunify the children with the parents”. There was a plan contained in the risk assessment which was regarded by the CFA as the initial plan in what was intended “to be a process” in which the CFA would “engage with the parents on a collaborative basis outside an adversarial setting which was in the best interests of the children”.
She then said that the respondents continued to deny the allegations, therefore in respect of the management of the risk, the importance of collaboration and engagement with the parents was huge. They had agreed to a voluntary care arrangement and to work alongside the CFA, therefore the CFA were no longer of a view that a Care Order was required for the care and protection of the children.
If the case was adjourned the respondents would have the benefit of legal advice and the GAL would remain appointed.
It was her submission that there did not need to be a determination by the court of sexual abuse in order for the risk assessment/management to take place. The CFA were engaged in an on-going risk assessment and believed that the risks were manageable if the parents continued to cooperate and engage with them.
The barrister for the GAL remarked that “the manner in which this is being done is extraordinary”. There had been no collaboration between the parties, no case notes given from the files for 2015 or 2016, and no minutes of meetings had been furnished.
Allegations had been made of the parents perpetrating sexual abuse against their children, allegations of the utmost seriousness. The GAL barrister pointed out that the retractions had not been mentioned anywhere in the submissions just made by the CFA barrister.
There were no minuted meetings based on the risk assessment available. “We cannot move to that point until a determination is reached if the parents pose a risk to the children, if they do then [the submissions] are an attempt to obviate that issue, an attempt to say it’s a mixed bag, the children saw the wrong thing on TV at some point. There are no case notes, the GAL is being completely ignored and objecting to the adjournment,” said the barrister for the GAL emphatically.
The barrister for the GAL for the older children said that in her view the allegations and retractions had not been dealt with, the professionals in the case had that issue to address and until they had done so there could be no movement away from the proceedings. The Court had to make a determination with regard to that decision.
The judge paused for a while before answering the parties. He then said it was hard to know where to start. He said that risk into the future could not be assessed without making any finding into the past. That was the first elephant in the room.
The second one was that the Care Order for the two older boys was expiring around the end time of the suggested adjournment date.
At this point senior counsel for the mother told the judge that the parents were hoping all of the children would be returned home at that point.
After further discussions, the judge noted that despite the fact he had refused to adjourn the case twice already, it had been de facto adjourned [witnesses had not been produced by the CFA upon refusal to adjourn].
He remarked that the mother was in the category of representing a risk, even though she denied everything.
The GAL’s barrister said he was objecting to the adjournment on the basis that the risk assessment provided was entirely deficient, it did not deal with the risk, an assessment in respect of the allegations of sexual abuse had not been completed.
There had already been 33 days of court time, remarked the judge. Either the threshold was reached or it was not. “The risk assessment document furnished is unimpressive, it does not refer to the allegations or retractions made by A or refer to any issue with regard to B to be dealt with. Issues would be left hanging, either the grounds are there or not to proceed. I’m refusing the application for the adjournment for the third time.”
The barrister for the CFA then made an application to withdraw the proceedings, citing that it was not in the children’s best interests to proceed.
As it was an application and the proceedings were still live, the judge said he had the jurisdiction to adjourn the application to withdraw and extend the ICO because the Section 18 was still before the Court. He said this was simply for the purpose of the parties to make submissions as to whether the Court now had the jurisdiction to refuse the application to withdraw, the parties had to return to court in three days.
If he did not allow the application to be withdrawn or adjourned, the judge wondered when Child A would get the opportunity to say what he was going to say.
June 2nd, 2016
When the case returned three days later, the judge heard submissions on jurisdiction. He found that the District Court Rule did not permit him to refuse the withdrawal of the application. The jurisdiction of the District Court was limited and local, and its function was to hear any application made to it, not to bring an application, he said.
If the court was to refuse the application to withdraw, it would be acting either as a review tribunal in respect of the decision of the CFA not to continue an application to the Court, or as an appeal tribunal in respect of the decision of the CFA not to continue an application to the Court. “I do not believe that this Court has jurisdiction to do either, in the context of an application under s.18(1), the judge said.
He added that it followed that the application for Care Orders, begun in March 2014, was now at an end. The GAL was then automatically discharged.
Senior counsel for the mother then made an application for her costs as did the barrister for the father. The barrister for the CFA opposed costs as the respondents were legally aided.
A costs hearing date was then fixed. The remaining dates for the Care Order hearing were vacated.
The High Court application
The foster parents and the GAL then went to the High Court seeking to have the children made Wards of Court in order to prevent them returning to their parents.
In her ruling on their application, Ms Justice Baker said: “As the parents agreed to a voluntary care order I need to exercise a degree of judicial restraint and ought not to engage the full jurisdiction of the High Court. The parents acknowledged that they would not discontinue or vacate the voluntary care order.
“I consider it at least arguable that the risk assessments carried out have been very detailed but much too general with regard to how the welfare of these children should be dealt with.
The District Court and the CFA must take such steps as are necessary to engage with the particulars of the risk identified, or identifiable, with regards to these children.”
She said she considered the foster parents and GAL were entitled to bring a s.47 application.
She adjourned the proceedings generally with liberty to re-enter. The High Court retains a residual supervisory jurisdiction with regard to these children. She directed that the GAL continue to act as GAL and retained seisin of the matter.
Renewed District Court hearing
When the case returned to the District Court the representatives of the CFA and the parents objected to that the court did not have jurisdiction to hear the applications under S. 47 concerning the risk assessment.
The barrister for the GAL for the two older siblings brought an application under section 47 to seek direction from the court as to what will happen once the care orders for the two children comes to an end on 16 December. That application was adjourned to 10 November. The court agreed to allow this submission to travel and to hear it at the same time as the other application but noted that it was not hearing the applications together.
Counsel for the foster carers set out that the section 47 application was seeking a comprehensive assessment of the children of any risk as may be associated with their return to the parents. It was the position of the foster parents that the risk assessment completed in May 2016 was materially deficient. He said the question before the court was whether or not the court was satisfied with the risk assessment conducted and if it was not satisfied then the court may direct a further risk assessment to be procured by the CFA. He stated that “the deficiencies leap off the page” and that they both substantial and procedural.
Counsel for the GAL who had previously acted as guardian for the children was re-appointed by the judge. He noted that the GAL had indicated her concerns about the deficiencies in the risk assessment at the time of objecting to the withdrawal of the section 18 application by the CFA. He noted that there are very serious allegations in this case, although he noted that retractions have been made by two of the four children. [B’s retraction came later]
The barrister pointed out that the determination of these allegations fell under the statutory duty of the CFA under section 3 of the 1991 Act in line with MQ v Gleeson. He alleged that the CFA conclusions set out in January 2016 had not been revised and that an assessment on the balance of probabilities had not taken place. He also said his client has concerns about the safety plan adopted.
He argued that the children are entitled to an adequate process to determine their welfare and that they have not received this. He argued that the following the High Court proceedings the children are now in care under section 4 of the 1991 Act and so fall within the jurisdiction of a section s.47 application.
He commented that the process that led to the CFA to withdraw the section 18 application was “fundamentally flawed” process. He noted that in this case the allegations were against both parents. He said he was aware of a methodology where children are returned to parents where allegations were against one parent and the other parent was considered to be a protective factor. However, in this case the CFA was returning the children without drawing conclusions.
Counsel for the CFA objected to the applications. She said the CFA had made a decision not to proceed with the section 18 application in June 2016 and had made a further decision not to apply for another section 18. The CFA had a duty under section 16 of the Child Care Act to consider whether or not they should apply for orders. She said they made that decision based on the risk assessment of May 2016 and reports available to them. If there is no application to make a section 17 or section 18 application then the goal must be to work towards reunification. The CFA must continually assess where they are at, it did not stop in January 16, it is not static, the assessment of the best interests of the child continues at all time. She said the CFA must continually manage risk.
She queried what would happen if the court found that the assessment was inadequate. “What then? Will the CFA be directed to bring a section 17 application.” She said the application is “seeking to substitute that decision made by the CFA, a decision they are statutorily obliged to make.”
She argued that the court does not have jurisdiction to review or substitute the decision of the CFA relating to the reunification of the children. The CFA was objecting to what is being sought to be achieved by the section 47 application. She said the section 47 would be “overstepping the jurisdiction of this court, to go back and review the decision made and the ongoing work towards reunification.”
She asserted that the court may review the implementation of a decision but not the decision of the CFA. For the court to review if the assessment is adequate for the CFA to be informed and make a decision is “a step too far” regarding what is envisaged under section 47. The judge queried if she was saying that the court did not jurisdiction to review whether the CFA was correct or not in coming to their conclusion. Counsel replied that the court does not have jurisdiction to review a risk assessment to consider whether it is adequate or not. The judge replied: “Am I to assume the CFA is always adequate?”
Counsel pointed out that another remedy in the form of a judicial review is available, the judge replied that the CFA had made the opposite argument to the High Court. Counsel stated that the section 47 was different from what was discussed in the High Court. She said the very specific matters raised were not appropriate to be requested under a section 47. She said the effect of the application as a whole was to “pause or suspend the CFA role under the Child Care Acts” as it is “asking the court to direct the CFA to refrain from making any decision in respect of family reunification.”
The CFA was looking to return the children to parents and extended family. The CFA had hoped to proceed with assessment work prior to reunification happening. The judge queried this statement given that the reunification date has been set as 23 august. He asked what was the decision of the CFA at the time, was the decision to return the children on 23 August to both parents. “Is the decision different? Have you changed your minds again?”
Counsel for the CFA said they had to react accordingly when the parents sought their children back and made a decision not to apply to the court for an order. She said the reunification plan was now being planned in the context of a longer lead-in time with a fixed date of 1 February agreed to at the High Court proceedings. She said they were not in a position to seek a viability assessment.
Counsel argued that the court would be asked to make a finding based on subjective opinion and that it could lead to micro-managing of CFA decisions. The judge asserted that if the court finds on an objective level that the risk assessment was inadequate it can order that an adequate objectively sound assessment be carried out. He commented that a section 47 application can be taken by anyone at any time and he cannot predict what will happen in the future, however, only the CFA can apply for an order under section 17.
Counsel for the father supported the CFA position and raised a number of points of opposition. She argued that the court did not have the power to review the CFA decision to return the children home. The judge asked her “Who polices the police? If what the CFA had done was inadequate is that it? Does the court have no function whether it is adequate or not adequate? Do we all ignore the fact that it is inadequate?”
In relation to the section 26 application to re-appoint the individual who has previously acted as a GAL for the two children, she objected to the appointment of the GAL given that the individual had lodged a section 47 application. She said the appointment was inappropriate as she doesn’t have the independence to carry out her own role in this case.
She said there is an ongoing process between the CFA and the parents and the applications were very focused on a situation that pertained in May 2016 while matters have moved on.
Counsel for the mother noted that section 47 is a widely drafted provision but the court is “not at large” there are limits on the court’s jurisdiction. She drew attention to the limitation including that the court cannot impose obligations on third parties including parents and the gardai; issue proceedings or direct others to issue proceedings; or act as a review or appeal tribunal. She said the section 47 applications were essentially asking the court to review the decision made by CFA not to proceed with care proceedings, the judge’s own decision not to proceed with those proceedings and the decision-making process and section 47 is not wide enough to embark on that type of an inquiry. She described the applications as a “collateral attack on the CFA decision not to proceed with proceedings”.
She said the risk assessment is inextricably linked to the decision not to proceed with the care application. The judge asked: “What if the assessment is wrong?” She replied that if the risk assessment is wrong, the decision of the CFA is wrong, and decision of statutory body can be the subject of judicial review proceedings. She said the directions are to challenge the decision of the CFA not to continue with the care proceedings. The judge asked: “What if the risk assessment is inadequate but not wrong?” She replied that the decision of the CFA is then challengeable. The judge said if the assessment is inadequate but not wrong then a judicial review won’t deal with that as the decision maker is entitled to make the decision.
Counsel for the foster carers responded to submissions. He noted that the assertion that to review a decision would be ultra vires was not supported by case law from the superior courts. He noted that judicial review is a discretional remedy, he may not have locus standi and may not result in an effective remedy, unlike a section 47 ruling. He commented that the position put forward today by the other parties was that “there is no power under God that can review a CFA risk assessment.”
Counsel for the GAL noted that at the section 18 hearing of 4th and 5th May, the CFA said it had decided to explore the viability of reunification. However, at that point no written risk assessment had been conducted, so the decision was made before the risk assessment was carried out. The judge noted that it is the CFA’s contention that under the resolutions model it is not necessary to determine whether sexual abuse occurred or not. He noted that although the court cannot direct the Garda to attend a strategy meeting it can direct the CFA to convene such a meeting as it goes to the question of the welfare of a child in care.
Counsel noted that there is clear legal authority that the court has an extremely wide jurisdiction under section 47 including being able to hear new evidence and make findings of fact, which a judicial review cannot. He disputed the comment that the parties were not aware of what is going on since August, noting that the GAL had been receiving update. He said he was “surprised by level of opposition from CFA” to the application and noted that the CFA has been “chopping and changing” their position on this case. He said: “Questions need to be asked, what happens when they have been answered is for another day”. In relation to the opposition to the appointment of the GAL on the basis that she has formed a view which in some way undermines her independence, he noted that her opposition to CFA is emblematic of her independence.
The judge ruled to allow the section 23 application and re-appointed the GAL for the two children in respect of both section 47 applications. He noted that it used to be very common to appoint a GAL who also made an application in a case. He said the GAL now appointed could bring the application in her role as a GAL. He noted that if he appointed a different individual to the GAL that person would need weeks to read into the case, would not be familiar with the children and it would mean another person would need to be involved in the lives of the children.
The judge ruled that he would allow the section 47 applications. He grounded his decision in previous case law including WHB v KM and JG and Staunton which characterise section 47 in wide terms to give consideration to any question affecting the welfare of the child. He noted that the court is in “not at large” that there are some limitations on the court’s power but the court’s jurisdiction has not been sufficiently limited in the manner proposed by CFA and the parents. However, he indicated that some of the orders sought are inappropriate. He said he was satisfied that it was within the jurisdiction of the court where a question is raised in a section 47 application that goes to the adequacy of the assessment of risk. The court has a duty to hear it and make an order.
The case continues.
