A judge in a rural town granted a full care order for a teenage boy (A). An interim care order had been granted eight months previously in respect of the child. The child’s mother had strongly objected to the interim order.
The judge said he was satisfied that there was clear evidence of neglect while A was in the care of his mother. He was satisfied the mother’s failure to engage with appropriate agencies amounted to abandonment of the child. The judge decided that the threshold for the granting of a full care order was met as he had to be concerned about the health, development and welfare of A. The hearing took place over three days.
Day one
The mother’s counsel told the court that A had been in care for eight months. She reported that allegations had been made regarding the mother’s misuse of alcohol. The mother strongly objected to these allegations, which she said were “completely unfounded”.
Mother’s counsel: “There is no evidence in respect of any of the allegations…unless the mother can contest this matter, there is no way she can be heard.”
The mother’s counsel reported that the mother was very concerned for her child’s emotional welfare, due to the fact that he was now away from her for such a lengthy period and that she wished this matter to proceed as soon as possible. She said that this case had been fixed for hearing on an earlier date but that unfortunately it had not been heard.
The judge asked how long the case was likely to take to which the mother’s counsel replied that it would take a full day as five witnesses were due to be called into evidence.
Judge: “I will not get to hear the matter today due to time constraints and this being a very busy mixed court day. I will ask a visiting judge to hear it.”
The judge explained that he would not be in a position to dictate the day or date for the hearing as he would not be able to control another judge’s calendar and timetables were generally made two months ahead of schedule.
Mother’s counsel: “The family will be ready.”
The judge requested the registrar to phone to make the necessary arrangements. The mother’s counsel requested that the earliest possible date be sought due to the circumstances of the case. The lawyer for the Child and Family Agency (CFA) pointed out to the judge that this matter had already been fixed on a previous two occasions but had to be adjourned due to the unavailability of the mother’s witnesses.
The judge reminded both parties that this was a very serious issue as it dealt with the welfare of both Child A and the child’s mother.
Judge: “We owe a duty of care to this child… mistakes cannot be afforded. There will be a full day hearing if we can get a date.”
The registrar succeeded in getting a date for the full day hearing to take place four weeks later in a neighbouring town. On being told the date, the mother’s counsel said there may be a difficulty with one witness on that date. The judge stated emphatically that the given date was the date the matter would be definitely going ahead for a full day hearing and that there was no other date. The matter had already been adjourned on previous dates and the judge said the reason was due to “system failure”.
Judge: “I cannot fix it. I have frequently asked for a second judge to be appointed to this circuit.”
The child’s social worker said that it would be in the child’s best interest for the case to be heard on the given date and that she would do her best to have all relevant witnesses present.
The judge told the parties that the EU had criticised Ireland for having the lowest judge per population in the EU. He said that in the UK there were “three judges for a similar size of population”.
The judge extended the interim care order and advised all parties and their witnesses to be available for the full day hearing on the given date.
Day two: Full day hearing
When the case came on for hearing a month later, Child A’s father told the judge he had only found out about the proceedings and had been unable to engage legal aid in time. The judge asked him why he had just found out so late to which the father replied that he had been told during the previous week that his child had been kidnapped. He told the court that he had no objection to the granting of a full care order in respect of A, as having spoken with the child, the guardian ad litem (GAL) and the Gardaí, he was convinced that his child was in a very secure and happy home environment.
The father told the judge he had not had any involvement in A’s life for at least nine years. The judge decided to go ahead with the hearing and advised the father that he could always come back to court at a later date and seek to vary the order. The father was advised that he could stay for the hearing and he said he was very nervous but wanted to be present.
The CFA lawyer asked A’s social worker about the background to the current interim care order. The social worker said that the child came to the attention of the CFA following a referral from the child’s school. A had made allegations that his mother was abusing alcohol and drugs; that the house was not in a good state and that there was no food in the house. The child had left his home and gone to live with a relative and did not wish to return home to his mother.
CFA lawyer: “So the child voted with his feet?”
The social worker reported that the mother had denied the allegations and had said she was suffering the effects of carbon monoxide inhalation, which caused her to appear very sleepy. The social worker said the mother had wanted the child back and had been advised to contact the child. The mother told the social worker that she had tried this but that A did not answer.
The CFA lawyer said the care arrangements for A with his relative were of a private nature and she had attended a meeting with the CFA to outline the difficulties she was experiencing. The relative was upset that the child’s mother was not taking any responsibility for the child.
A’s mother had promised to pay €50 a week for his care but had only paid this prior to the interim care order being granted and had never contributed anything since then. The contact from the mother had been sporadic and the child never received a letter from her.
The social worker told the court that the granting of a full care order for A was now appropriate as there had been “no progress from when the case was first allocated”. The social worker said it was the CFA’s opinion that A had been abandoned by his mother because she had not sought legal advice about the situation and had not made contact with the child, although she was blaming this on her difficulties with the electric gates at the relative’s home.
At this point the social worker consulted her notes and reported that her team leader had advised that abandonment of A had taken place as the mother had made no effort at all to make any contact with her child. She said that A was adamant that he was not returning to his mother.
The mother’s counsel asked the social worker if a child protection conference (CPC) had been held and the social worker replied that it had not. She said the reason the CPC had not been held was that an interim care order was being sought by the CFA. When asked by the mother’s counsel if it was CFA policy not to proceed with a CPC if an interim order was being sought, the social worker said: “Yes, that was the only reason the CPC didn’t go ahead”.
Asked by the mother’s counsel about the relationship between the mother and Child A’s relative, the social worker said she had not seen any negativity towards the mother from the relative. The mother’s counsel asked if there was ever any consideration by the CFA of finding an alternative placement for Child A and the social worker told her there was not.
She also said that the child’s mother had told her that she had contacted the Gardaí to seek the return of her child but that they had not listened to her. The lawyer for the CFA enquired if any additional supports had been suggested to the mother. The social worker said the mother had been advised to go to her GP but that she had not consented to going.
The principal of the primary school attended by A told the court that the child had been referred to the CFA due to having an unkempt, pallid appearance and being lethargic, sad and unmotivated in school. While correspondence was sent to his mother regarding school programmes in which his peers were participating, A did not attend these. The child had a very poor school attendance record while living with his mother and this record deteriorated as he got older.
The principal said that the low attendance had probably negatively affected Child A’s academic and social progress as he had missed one in every five days. He said making contact with the mother proved difficult and she did not attend school meetings. A school liaison teacher was concerned for A’s welfare and in line with Children First procedures, a joint referral report was sent to CFA.
Sometimes A, who suffered from asthma, came to school without his inhaler and it was difficult to contact the mother. When asked by the mother’s counsel if there had been a meeting with the mother to discuss the above concerns, the principal replied that three meetings had been held.
Principal: “The objective is to work with families rather than immediately refer to CFA.”
The deputy principal of A’s current post-primary school said that A’s attendance was good at present and his overall presentation was good. She said his attendance in the previous school year was poor with very high absenteeism. At that time he was referred to the school completion programme and also to the education welfare service.
The deputy principal told the court that poor attendance early in the post-primary school would have led to problems with socialisation along with academic difficulties, especially in the area of mathematics and language learning. These subjects were difficult to grasp for a pupil who had missed the foundation lessons through poor attendance.
Following diagnostic testing at school, it was found that A’s poor academic progress was not due to cognitive deficits but were more likely to be the result of very poor school attendance. The deputy reported that A’s current attendance was at 84 per cent. His present attitude was more positive and he was engaging well with school programmes. Recent academic results showed marked improvements in both mathematics and science.
The child’s current social worker said that she was concerned that his mother engaged on a superficial level with services but was uncontactable afterwards. The mother failed to engage with a mediation service organised for her and the mediation service subsequently closed the case.
Social worker: “[Mother] has failed to acknowledge there is a parenting problem… reunification or access is out of the question for [A] due to issues of care regarding her addiction before he left home”.
When asked about the referral to the Gardaí, the social worker replied that such a referral by the CFA to the Gardaí is an obligation in cases like this. The social worker reported that the mother was “uncontactable” in between court appearance dates and was refusing to consent to a passport application for A.
The CFA lawyer asked about the involvement of A’s father and the social worker said the mother had contacted the father through an intermediary. A meeting with the father had taken place but the father had told her he was receiving conflicting versions of events from the child’s mother and from the foster parents. He had requested a meeting with A and this had taken place and was a positive meeting.
The social worker reported that A was currently progressing well in school and was in receipt of grinds for the subjects with which he had trouble. The child had also been offered some counselling at school as he had suffered trauma throughout the process. The CFA lawyer asked the social worker to explain why she believed A’s care deficits met the threshold for the granting of a Section 18 full care order until the age of 18.
Social worker: “[A] was abandoned for a period of time…he suffered both emotional abuse and neglect. All the services outline Mam’s parenting issues. Mam is not acknowledging any difficulties.”
The CFA lawyer enquired whether a supervision order had been considered but the social worker replied that a supervision order was “not appropriate at this time… I have met [A] during the last week and he is adamant that he wants to stay where he is now.” She added that the child was open to access with his Dad but that such visits would need to be introduced gradually and carefully monitored.
The mother’s counsel asked the social worker if she was aware that the mother had suffered a loss and was grieving over a period of two months. The social worker replied that she had been made aware of this and had left the mother alone for a couple of months during that difficult period. However, the social worker added that “at no period was [mother] fully contactable… the Meitheal group tried to make contact with the mother to no avail as she would not answer or return calls”.
The social worker denied that the extra money provided by the foster parents to A was influencing the child’s decisions. She said the mother sometimes used this theory to deflect from the real issues but denied that the foster parents were influencing the child, saying: “[A] left the care of his mother.”
The mother’s counsel pointed out that the foster parents were in a financial position to be able to bring the child on a foreign holiday, thus requiring a passport for him and asked if this aspect was difficult for the child’s mother. The social worker agreed that the child’s mother was uncomfortable with the situation.
Social worker: “No amount of money can replace love of children for parents. A monetary reason has never been part of the reason.”
The GAL asked the social worker about the proposal for the funding of A’s dental work. The social worker told the GAL that this issue would be explored to ascertain the necessity for the dental work from a medical point of view rather than an aesthetic improvement. The GAL also recommended counselling for A, but “only if he was willing to engage”.
The judge noted that there were only 15 minutes of court time remaining. He said that the testimony of the GAL would be of significance and he decided to adjourn the remainder of the proceedings to a date one month later. The GAL’s lawyer said that a letter, hand-written by A, would be put on the court record. The judge extended the interim care order until the subsequent court date.
Day three
The court resumed the section 18 full care order hearing one month later to hear the final two witnesses in the case, the GAL and the boy’s mother. A letter from the boy was handed up to the judge by the solicitor for the GAL.
The teenage boy’s wishes and the GAL’s evidence
The GAL described A as “a lovely teenager” with an interest in science and films. He said: “he is a typical teenager, a pleasure to get to know.” The GAL told the court the boy was clear in his view that he had been neglected. He referred to serious allegations made by the boy in previous correspondence to his social worker where he alleged the mother had an issue with alcohol during the day and at night.
The boy had alleged his mother was “passed out on the sofa when going to school and the only food in the house was frozen”. The boy told social workers he limited clothing. The GAL told the court he spent an evening speaking to the GAL about the allegations and he was very open and descriptive.
Counsel for the GAL referred him to a section of his report.
GAL: “[Child A] is in relative foster placement… It is a lovely home and very family-oriented. An older sister who has turned 18 also lives there. He is very clearly saying he loves living there. He can play computer games, he is getting help with grinds and loves the nature of the home and the support he gets. He is happy to live there. He doesn’t understand why his mother won’t acknowledge she has a drink problem.”
The GAL went on to say A had very little optimism that his mother would complete his passport application and although she had the horrific experience of a bereavement at that time, feeling let down by his mother was a consistent issue for A.
Counsel for the mother stated A’s mother refuted the allegations and an application to have the hearsay evidence of A admitted by the court had not been made. She said the mother was prejudiced by the GAL giving views on the allegations without evidence.
Counsel for the GAL said that the GAL was not relying on veracity but must be in a position to canvas the child’s views.
Counsel for the GAL: “The best interests of the child were paramount and what he [the GAL) has been saying has been communicated to him and I appreciate my friend’s objection.”
When asked how the child was supported to write his letter to the judge, the GAL said he gave general guidance on headings, but the content was left to the boy and he took three days to write the letter. The mother in her evidence stated the boy was under the influence of the relative foster carers in writing his letter to the judge. The judge said the boy’s views were not proof and if so, that would be a different matter.
The GAL said he spoke to the mother on the phone on several occasions. “If she feels sober, there are ways to prove sobriety. She needs to engage with services and provide clean urines,” he said.
In terms of A’s security in secondary school and sitting his Junior Certificate, the GAL told the court that the boy was very worried about the outcome of what was happening. In his professional opinion, he needed security as he moves into adulthood.
GAL: “[A] feels absolutely at home, loves living there. His [craftwork] are proudly displayed. He is calm, happy and settled there.”
Counsel for the GAL: “Would you have concerns if the order is not made?”
GAL: “He has made significant allegations of neglect and emotional abuse. If these are true, then the threshold for a care order exists. A letter was handed to you (the judge) by [A]. It took him three days to write the letter. His viewpoint is very strong.”
The GAL told the court he supported the CFA application for the child to remain with his relative foster carers until he was 18 years old. The GAL told the court he was worried that in the event of a care order not being granted, the boy’s mother would neglect him again.
The boy was very fearful of returning home and fearful he would be neglected.
The GAL told the court A loved his mother and there was an ongoing issue of access. He had not seen his mother for five months and he had asked for time to think. He had mixed emotions about access. He was open to doing an activity and wanted his older sister there.
The GAL told the court he was supportive of access and this was very important. The mother’s counsel asked the GAL if mediation would help to facilitate access and whether mediation and counselling would assist with reunification. The GAL said mediation would help. A’s older sister was very important as a security figure and sobriety was an issue which needed to be proven.
Mother rejects allegations
The mother rejected allegations by the CFA that she had abandoned her son when he went to live with her relatives. She said she called to her relative who refused to open her electric gates and Christmas presents she left for her children were not given to them by her relative until March.
The mother explained to the court she had tried to get legal representation to have her son returned and had difficulty as her relative was well known to the local solicitors.
Mother’s counsel: “Were you advised [by CFA] on what would happen next?”
Mother: “The way it sounded to me was that they would just come home.”
Counsel for the mother said the court heard evidence previously from the CFA of having difficulty in contacting the mother and she asked the mother about her understanding of this. The mother said she had five different social workers since earlier in the year and she was not told about the changes when they happened. She said she would often get a voicemail. The mother told the court she had a health incident earlier in the year and was not able to contact her son and older daughter when she thought she was dying as she wanted to tell them she loved them.
When asked by her counsel about alcohol use, the mother said she drank socially like anyone else and denied alcohol misuse. She said she suffered with anxiety and had been on medication but was now afraid to take any. The mother alleged her relative had her child benefit and work pension cut off and claimed that the relative was now in receipt of both. This was challenged by the CFA solicitor.
The mother described her relationship with her relative, with whom her son was in relative foster care, as “not a good one”. She said the woman was very overbearing, controlling and judgemental. She said she would like to have a close relationship with her.
Mother’s counsel: “Is there any reason he [Child A] does not want to come home?”
Mother: “[They] have a negative view of [what] is appropriate and not appropriate around children. I’m upset and miss him and love him.”
The mother described her relationship with the son as very loving and caring. She said A was very loving and caring. He went on holidays, to the cinema and went to his friends’ homes after school. He was quite independent. He was organised the night before school. When he came home from school, she said she had asked him about school and there were never any issues. She described the condition of her house as fine.
Mother: “They had everything they needed, a clean cupboard full of food, gas heating, clean bedrooms, heat, food, love.”
The mother told the court she had only one meeting with the primary school principal before A’s confirmation. She said he told her someone from the public had commented on the boy’s appearance. The mother said she asked the principal what was wrong and he could not answer her.
She said from the time her son started school, he was prone to infections and had numerous GP appointments and surgery recommended by a consultant. The mother told the court that she always notified the school regarding absences. She said at a parent teacher meeting she was told her son had a high IQ and that the only issue raised was his speech. The CFA solicitor put it to the mother that the school principal’s evidence contradicted the mother and no medical certificates were handed in for absences.
The mother refuted this and said two letters were handed in when the boy had surgery.
CFA solicitor: “You never called into the school over attendance. [The court] heard Child A made significant progress since he moved to live with your [relative].”
Mother: “I heard that he was feeling sad.”
CFA solicitor: “[The court heard] the evidence of two witnesses. Due to missed schooling, this is why [A] requires grinds.”
Mother: “At one stage I had grinds. I accept he missed days when ill and in hospital.”
When asked by her counsel to explain the circumstances surrounding A leaving home 14 months previously, the mother said it was hard to explain. She told the court she had an argument with her older daughter about a bag of marijuana found in her room. She went out of the house and when she returned A was not in his bedroom and there was a note saying he had gone to friends and would be back at 9.30 p.m. She found this unusual and texted her older daughter who said A was with her.
After the social workers became involved, the mother said she went to a solicitor for advice and had a couple of meetings with a social worker and a team leader. She said she showed the social workers around her home and showed them A’s clothes, books and uniforms. She told the court it was impossible to contact the children and it was “like walking into a brick wall”.
The CFA solicitor put it to the mother that there was evidence of a lack of motivation on the mother’s part and at a number of meetings the steps she needed to take were outlined to her such as engaging regarding alcohol, mental health services or counselling.
Mother: “I have done counselling in the past. All of these allegations are upsetting.”
The court heard A and his older sister left their mother’s home in September 2018 and the CFA became involved in February 2019. The CFA solicitor put it to the mother that the court heard evidence given by a member of An Garda Síochána that no efforts had been made by the mother to recover her children.
The mother told the court she tried to enforce her guardianship rights by attending Garda stations and contacting her relative numerous times. When asked, the mother could not give any of the names of the Gardaí to whom she spoke. She told the court two Gardaí looked around her house and checked her presses for food and asked if she was on medication.
She said she told the Gardaí she wanted to make a statement but they refused to take a statement and put some information on a sticky note. They advised her to talk to her relative. The mother told the court she thought there were social workers involved and her relative was not allowing her to get her son and older daughter.
Judge: “Are you denying [the allegations]? If I’m to believe you, did nothing ever go wrong? It seems extraordinary [that] I’m hearing the case at all. You know you are under oath and you swore to tell the truth?”
Child A’s father
A had no contact with his father for nine years. The father was present in court but was not legally represented. The judge asked the father if he had any questions.
The father explained that he had mutually agreed access with his son after nine years and exchanged his contact details with the mother. He alleged that A’s mother had his own mother’s contact details but that she told the CFA he was uncontactable. He also alleged that the mother told his own mother that the boy was kidnapped.
Father: “I’m upset. [A] said everything he said to the social care team is true. He didn’t need to confide in me. He didn’t have the emotional bond.”
Judge: “It is a sad and unfortunate case from a lot of views. Fortuitously it is very late, [but], glad you have re-established contact with [A]. [That is] a very good thing.”
Submission to the court by mother’s counsel
In a submission to the court the mother’s counsel said A and his older sister went to their relative in 2018. On numerous occasions the mother was informed that there were no child protection concerns and that the children would be returned to her. In the interim, the social work department decided to institute proceedings.
The social work department changed their views over Christmas 2018 and gave no reasons for why they changed their initial assessment. They advised that the mother was not contacting her children. The mother gave evidence that there were no long periods where there was lack of contact. In the social work department’s initial assessment the house was clean. There was no application for hearsay evidence to be admitted. There was evidence of the mother attending every meeting. She always shown an interest and was open to mediation.
The mother’s counsel’s position was that evidence was not adduced to meet the threshold for a full care order. The only evidence had been the views of the child, which must be taken into account. There was no evidence that the conditions alleged by A had occurred. If the court considered making an order to 18 years, the mother’s counsel said: “Would it not be appropriate to make an order for as short a duration as possible for the work to happen, for the mother to stay contactable and to rebuild the relationship?”
The CFA solicitor’s submission:
The CFA solicitor said there were three strands of evidence:
- The court heard significant evidence of reaching the threshold of neglect.
- The court heard from a number of professionals of the impact on Child A’s health and welfare.
- The court heard from a number of witnesses of various supports offered to the mother and her lack of engagement in terms of improving her own circumstances.
The court heard evidence from the allocated social worker as to why an interim care order was sought. The social worker acknowledged there were no child protection concerns but said the accumulation of non-engagement by the mother amounted to abandonment of the child. The court heard from the GAL that A expressed his own views and also heard evidence about the importance of stability and security for the child. A care order until A is 18 years old was appropriate, according to the social worker.
Judge’s decision
Explaining his decision to grant a full care order until A is 18 years old the judge said he had to have regard for A’s views. He was satisfied there was clear evidence of neglect while the boy was in the care of his mother. He was satisfied the mother’s failure to engage with appropriate agencies amounted to abandonment and he was satisfied on that basis to make the order.
The thresholds were met in this regard, as he had to be concerned about the health, development and welfare of A. The concern continued largely because of an almost complete failure by the mother to realistically engage with appropriate agencies. There was also evidence that since A had come into care he had improved significantly. He was extremely happy with his own development, his present life and his hopes for his future.
Judge: “I cannot ignore these factors. I am satisfied his stability and security are major factors to which I must pay attention. I am satisfied on these factors [that] I must and should make a care order until he is 18 years old… provide for his aftercare review a year in advance of that and re-appoint his GAL seven months in advance.”
The judge also gave directions regarding counselling and orthodontic treatment as recommended by the GAL. The judge gave liberty to re-enter the matter in court after two months in the event of no orthodontic treatment being sourced by the CFA.
Judge: “Counselling should be provided. No doubt, [A] will appreciate its benefit and its necessity. All kinds of people need counselling and don’t appreciate why they need it.”
The judge allowed the GAL to remain appointed for three months to assist with the carrying out of his recommendations.
The judge addressed both parents. “The book is never closed, and it is hoped access would resume and I do appreciate it would be helpful if the older sister is involved. It is good and encouraging that she would like to be involved.”
The mother’s counsel asked the judge for a direction regarding family mediation because it might help to re-establish access. The judge said counselling was the first step and there was liberty to re-enter the matter. He said access would initially be supervised with the involvement of the GAL and it was premature to say anything about family mediation.
He said it was far too early for family mediation and it would “fly in the face of the order”.
The judge made a direction that in the event of Child A having no social worker allocated for six weeks, the matter of the appointment of a social worker could be entered and brought back to court.
