Interim Care Orders were granted for four African children, all of primary school age, who alleged they were beaten by their parents, including with implements. Following a number of extensions of the Interim Care Orders, the two younger children were returned home. A guardian ad litem was appointed for the two older children, with a view to them returning home when certain issues had been resolved with the parents, who were cooperating with the HSE on a parenting programme.
In the course of the hearing there was an application for the children to give evidence and be cross-examined. There was extensive exploration of the issue of hearsay evidence from children, the appropriateness of them giving evidence and alternative ways of obtaining their views, and the compatibility of this with fair procedures. A psychologist gave evidence that it would not be in the interests of the children to give evidence in the case.
The Hearing
A judge said he did not accept that striking a child with an iphone cable was within the grounds of reasonable chastisement. He was commenting on evidence heard in the course of a HSE application for Interim Care Orders for four African children who were taken into care after the court heard evidence that they had been beaten by their parents with a variety of implements.
The court had previously made an Interim Care Order on an ex-parte basis, that is without the parents being present or represented, after a social worker with the HSE told the court of his concerns for the safety and welfare of the children if the parents were told of the intended proceedings. Three members of An Garda Siochana accompanied the social worker to the family home to take the children into care and one of them said he heard the father say to one of the children: “You are to blame, this is your fault, you’re the one that’s talking”.
The court heard evidence in the case for several days over a number of months from witnesses including the HSE social worker, teachers, medical experts, members of An Garda Siochana as well as the parents of the children. The alleged physical and emotional abuse came to light when one of the children, C, told a teacher that her parents were physically violent towards her and her siblings.
The school principal contacted the HSE and the social worker made an unannounced visit to the family home. He said the father was surprised when told he wished to speak with C about concerns which were raised in school. The social worker said he met with C alone and she described her parents having a fight, a frying pan being swung and a light bulb being broken. C said she had been hit by her mother. “Mammy used to hit me with a wooden spoon when we were bold. She doesn’t do this anymore”. She said her father was still beating them using belt, hand and cane and that they would be slapped on the legs, hands and bum. The social worker said it was noticeable that she made the disclosure in an extremely matter of fact way and she was not in any way distressed. She also described being beaten by her father for making spelling mistakes.
The other children were in bed and, after speaking with C, the social worker spoke with the parents who acknowledged that they had physically punished the children. The father admitted using a belt, his hand and a cane and the mother admitted to slapping and hitting the children. He said the parents were very co-operative and they talked about the issue of cultural norms in relation to physical chastisement. It was clear, he said, they understood that this was not appropriate. “It was crystal clear”, the social worker said, “that the parents were acknowledging physical chastisement”.
The father acknowledged that it was something they had to address and they were going to meet with their pastor, who was also a neighbour, to discuss alternative means of disciplining their children. “I felt towards the end of the conversation that we had a good understanding.” He said the parents were reasonable, open and honest. They gave an undertaking that the physical discipline would cease and that the pastor would help them with alternative means of discipline such as grounding. The father said he was in the process of separating from his wife and was looking for alternative accommodation.
The next significant development occurred a few weeks later when the social worker was called to the school by the principal in relation to a disclosure made by A, another child in the family. The child’s teacher gave evidence that A had left a note on her desk asking to speak to her on a school trip which was to take place the following week. On that trip, the teacher said that A began telling her about physical abuse taking place at his home. A’s disclosure described implements being used by the parents to beat the children and how his father beat his head against a wall.
By agreement between the teacher and the school principal, it was suggested that A keep a diary and write in it things that happened at home. The teacher told the court that the diary entries, in her view, described physical abuse perpetrated by both parents using various implements, threats of being sent to a foster home as well as being made watch YouTube videos of children abused in foster care. The disclosures made in subsequent diary entries included threats of being taken to Africa to be beaten up or killed. He also expressed a desire to kill himself.
The social worker met A at the school and separately with B, another sibling. After speaking with A, he said he had serious cause for concern. The child had described being forced to stand on one leg and touch his right foot with his right hand for approximately half an hour. He also described having to kneel down with his hands in the air for a similar length of time. He said he was beaten with a wooden spoon, a belt, a tree branch, an iphone wire and a metal kitchen implement “a sharp one that looks like a pancake spoon with a few bits missing.”
Asked was it just him or all the children who were beaten, A said it was all the children. The social worker asked him if there were any particular times when he was beaten and he said he was beaten by his mother in the mornings. He said he was a slow eater and his mother got annoyed because he was delaying everybody. He said his mother had said the beatings would stop but that they had not stopped.
Asked about the child’s diary reference to wanting kill himself, the social worker said he had explored this issue with him and that he very clearly understood what it was; what it meant to kill oneself. He said he was worried about his parents finding out about his disclosures and he was insistent that he (the social worker) would not tell his parents. The social worker said he went to significant lengths to explain to him that his job was to make him safe and that was why he had to tell them. He said that when the social worker had previously called to the house and spoke to his sister C, his parents had been very angry with her and he was worried that he would now get into trouble and be sent to a foster home.
The social worker’s impression was that A was genuinely worried about the consequences of talking to him. He found the child’s account was consistent with his diary entries. “I believed it was credible and I still believe it was credible,” he said. He had asked him numerous questions over an hour and a half and if he was making it up it was highly likely that he would not have been able to give the information back as it was in the diary.
The social worker then met with B, who told him that all four children got slapped. She said it happened approximately every second day. Her young brother, D, was hit with what she described as “a long petrol thing”. The social worker understood this to mean a petrol funnel. When asked to describe how they were hit, she said a belt, an iphone wire and wooden spoon. She said it was mainly the iphone wire and this left lots of marks. She said that hurt the most. She said she had asked her parents to stop beating them and the response was that they would stop if they stopped being bold. The social worker said she had corroborated that there was physical abuse in the family home. The use of a belt and iphone wire was not defensible. What they were describing would amount to physical abuse by any standard.
On the same day, the social worker telephoned the mother and asked to see her and her husband that evening. He met them in the family home and he was accompanied by a member of An Garda Siochana. When he outlined what A and B had said to him earlier that day, their immediate response was that A was telling lies. They had a lengthy discussion about the use of physical discipline and alternatives.
The father referred to the Bible as justification for physical discipline. When he voiced his concerns about A’s mental health, the parents responded by laughing and ridiculing the suggestion that he might be having suicidal thoughts. The social worker said he felt it was necessary to ask the four children to join him in the room with the parents. He told them he had informed the parents that there was to be no further physical discipline and the parents agreed.
On the following day, he asked the school for copies of what A had written in his diary and there were concerns that emotional abuse was now becoming a serious issue. The diary entry stated that the social worker came and said his parents “can’t be hitting us”. The entry goes on to state that his parents were insulting him and calling him a devil and a traitor and that he would have no more computer games and Taekwando. They said they would send him to Africa for discipline.
During the course of the next week, A made further entries in the diary which the social worker said corroborated what had been said previously. It amounted to further concerns in relation to emotional abuse which was now becoming possibly the most serious part of the case. He said the impact of emotional abuse was often far more serious than physical abuse in its long term impact on children.
A physical and psychiatric assessment was carried out at a hospital and, while there was no evidence of physical abuse, it was felt that the situation was clearly deteriorating with the children, A in particular, being subjected to ongoing physical and emotional abuse. Because of this, the HSE had decided to make an ex-parte application for an Interim Care Order, which the court granted after hearing witnesses for over three hours.
Inquiry into evidence from children
When the case was before the court a few days later, the parents were legally represented and the barristers for the parents sought to have the children brought to court to give evidence and possibly to be cross-examined. The court undertook an inquiry to consider whether the children should give evidence. The HSE’s solicitor said it would not be in the best interests of the welfare of the children to come to court. The mother’s barrister said she would like to hear the children but that cross-examination might be difficult. What was before the court was hearsay evidence and it could not be relied upon.
The judge said he had to deal with it first under Section 23 of the Children Act 1997 which dealt with the admissibility of hearsay evidence and, if they were to be called, they would only be called under Section 21 which is the section of the act providing for evidence by way of video link. The HSE solicitor said: “I think there’s no need for the children to be called”.
The judge said that if the parents were not admitting the evidence he would have to decide if they (the children) were able give evidence by reason of age and “if I decide yes, then I have to decide if it is in the interest of the welfare of the children.”
HSE solicitor: “This is completely new. I’ve never seen where the children in care have to give evidence.”
Judge: “It’s there” (Section 23). The solicitor said it was new and complex. The judge said the first step would be to obtain an expert opinion on whether the children would be able to give evidence.
When the hearing resumed five days later, the court was told that an expert opinion could not be obtained in less than 6 weeks. The mother’s barrister asked if the court could informally bring the children in to make an assessment as to their capacity. The judge said he was very conscious he had to carry out an inquiry but the question was how? “If I’m carrying out an inquiry it has to be within parameters you all know about…..We have to be conscious of fair procedures.”
The judge decided to meet with the three older children, who were all of primary school age, saying that he had to make a decision balancing it against the necessity of getting the case completed in the interests of the children and to a lesser extent the interests of the parents. “It would be inappropriate to leave the children in care for six weeks. If I don’t have an expert, I don’t have one. I will have to make an assessment myself.” He said that in some jurisdictions it was not in any way unusual for children to be giving evidence, particularly in abuse cases.
The social worker was then asked by the HSE solicitor for his view of the children coming to give evidence and he said it would be preferable if it were not to happen. “My professional opinion is that it would not be in their best interests to be cross-examined,” he said. He did think the children were old enough but “my concern is that if evidence they give results in them not returning home they might perhaps have feelings of blame and responsibility, the long term impact of appearing to testify against their parents…..it has potential for long term impact particularly if it results in their being kept in care.”
He agreed, when asked by the father’s barrister, it was possible that the damage from the risk of a care order would be greater than the damage from cross-examination. The judge said that in circumstances where the children had made disclosures and the court had made orders “the genie doesn’t go back into the bottle. Their disclosures have had an effect which won’t go away. There’s no reversing that. Is there a difference from their welfare point of view from where they are now and giving evidence?”
The social worker told the judge: “Leaving all the legal difficulties aside, this has already had an impact which is not going to go away. Whether it is going to do any more damage, I don’t think that would be quantifiable. I think even a psychologist would find it impossible to make a call on that one way or another”. He said you would be trying to get through to the children that this was not their fault. You would sit down with them afterwards and explain it’s not their fault but “there’s no guarantee they will believe that”.
The judge said the Children Act gave the appearance of a step by step process. If he were to decide the children were not competent to give evidence by virtue of their age or the giving of evidence would not be in the interest of their welfare, the next part he would have to consider would be whether an injustice would be done by the admission of the hearsay evidence. Would it be more in the interest and welfare of the children to admit their evidence? Or for a successful application to be made that evidence be not admitted and such an injustice would be done that it is not in the interests of the children?
“If that evidence is not before the court then that’s the end of the matter. That’s the way the Statute requires the inquiry to go,” he said. The judge asked the social worker: “Balancing the welfare of the children, if the only way from your point of view of your application succeeding is if the children give evidence, is it better for them to give evidence?”
“Either way there’s going to be a concern”, he replied. “Exactly,” the judge said. “It’s a balancing act. There’s no easy way out”. “It would be difficult to argue against having the children interviewed,” the social worker said.
The judge said he should hear the parents before deciding whether the children should be heard. The evidence had not been rebutted yet and the parents had not been cross-examined.
The hearing resumed the following day, after the judge had met the three older children. He said it would not be in any of their interests to give evidence unless it was absolutely necessary to do so. The allegations of physical abuse were classic hearsay and it was always admissible at the discretion of the court after an inquiry. That was, he said, the effect of section 23 of the Children Act 1997 which deals with the admissibility of hearsay evidence.
The judge said that having met the children his impression was that the two older children would be capable of giving evidence with protective measures, including a video link, in place. He said the HSE case was bound to fail if the hearsay evidence was not admitted. “At this stage, I am satisfied I find as a fact that disclosures have been made and it is appropriate in my view that the disclosures are put to the parents in evidence.”
He said if it then remained, having heard the parents, that it was necessary to hear the children he would then decide if the children were to be heard. He would proceed to hear the parents and allow the substance of the allegations to be put to them. It would also be necessary for the HSE to know what the parents have to say.
Father’s evidence
The father gave evidence of physically punishing the children. “Some mornings when they wake up, C and B engage in fighting. I’m in the other room. I hear them shouting to each other. Sometimes it gets out of hand. Not often maybe two or three times. One particular day B scratched C with her nails. It was as far back as a year and a half ago. On that particular day out of annoyance I took the belt and smacked her B on the backside two or three times.”
He said that since that time he had not used the belt on B but maybe once on A. He confirmed that there had been a row in the house with his wife over money and he had grabbed a frying pan she had been using to cook eggs. The food fell on the floor and C had told the teacher what had happened.
He was asked by his barrister if, as C had told the social worker, he had slapped her on the legs, hand and bum with a belt, hand and cane. He said that most of the time when they were unruly he would call them and sit them down. Sometimes, after pleading with them many times he would take the spatula and slap them on the arm and hand. “The reason I do this is where I am from we use physical chastisement, not to hurt you.”
He denied every using a cane but said he had taken a branch from a tree once to threaten A who was cycling too fast and not obeying the rules of the road. “I took down the switch to frighten him. I never used it,” he said. He denied smacking C for being bold or for getting something wrong at school. He said: “I never heard the word bold before until I heard it in this court.” He admitted telling the social worker he physically chastised the children if they got out of hand. “Most of the time I talk to them. I spent so much time talking to my son. I do chastise them but I never abuse them.” He said the social worker had called a few times and he thanked him for everything. “My attitude has changed. I see things from a different perspective now.”
He admitted chastising A but “in an average month not up to twice”. Asked about D’s claim of being hit with “the black thing that petrol goes into,” he said: “I don’t know what he is talking about.” The judge said that a funnel and a hose were mentioned and the father said they had a petrol can but denied he every hit them with a funnel, hose or anything to do with a petrol can.
When asked if he had beaten A with a spatula, he admitted using B’s belt on him. He denied that he had punched A in the face which was contained in one of his diary entries. “Never, had I hit him with my closed hand, the teacher would have seen it if I hit him in the face.”
He was asked about other allegations in A’s diary and denied whipping child D. “The way I would discipline him, I would send him to bed.” He admitted hitting A on the arm with a spatula after he told a lie. This was after he had given assurances to the social worker that the physical punishments would stop which he said he forgot about at the time. He was asked about a diary entry which said he beat the children regularly and said this was totally untrue.
“Every now and then they fight over TV programming. When that happens I intervene and have to resort to physical chastising.” He said he didn’t hit B any more and said he had never hit A with an iphone wire. Asked about A’s diary entry that said his parents beat them regularly, he said “in the course of a month maybe once, twice or three times at most” and he denied B had asked him to stop beating them.
He denied that he had ridiculed A when he was told that he was suicidal but found it strange he was writing about it in his diary because he didn’t believe that he knew what suicide was. He said he never laughed at the suggestion. A cried a lot to the point that he asked the school to have him psychologically assessed and it “came back fine”. His sister, B, was much stronger.
He had used physical chastisement as a last resort. “It’s from where I come but never in my mind have I gone to the point of trying to hurt.” He said he had not “put my hand to correct the children” since the social worker visited the house and he told them the physical chastisement would stop.
The father was asked if he had any discussion with A concerning his diary entries and if he had called him a traitor and “an ungrateful human being.” He replied that he had asked his son what was going on and why had he not discussed any of the issues with him. He said if he had any problems he should bring them to him. He admitted saying that he could be taken to a foster home but denied calling him a traitor, a devil or Judas.
He was asked if he had threatened to send him Africa to get beaten and replied that he had said that that he might have to leave Ireland and go home with his children. “I know of some African children who have been taken by the HSE and I might have to leave with them,” he said. The child’s diary had said his father had called him a bastard and that he would kill him. He denied this and added: “I never used the word bastard. These words by son is using are foreign and strange to me”.
He was asked about the allegation that he had told A: “It’s all your fault” when the social worker arrived with the Gardai at the family home to take the children. He said that he could not believe what was happening and B asked him what was happening, “I was angry and annoyed and I told her to ask her brother.”
He said he did not call A a liar or shout or abuse him. He said he had physically chastised his children but that he never wanted to harm them. He did not physically chastise the youngest boy, child D. “I take him to his room”, he said.
The father was then cross-examined by the HSE solicitor and he admitted hitting A on the arm with a spatula about two months earlier. The last time he had physically chastised B was about a year ago and he had used her belt and had also used it on A. The last time he had punished A arose because he was playing with a phone and game in bed and had denied doing so. He had hit him with two or three strokes on his hand with B’s belt.
The father was asked about showing him a YouTube video of children in care. He said A had told him that people had said he had a right to decide where he could live and wanted to make his decision. He asked his son if he had any idea that a foster parent could raise him any better. “I said: ‘right now they are alleging I abused you. Do you think I have abused you?’ He said: ‘I don’t know,’ and I asked do you think there is any abuse in foster homes?”
He said he showed him a video of a boy who had been beaten in a foster home “and I asked him did I ever abuse you like this? He said ‘no’.” His son had said “’but this is not Ireland’ and I said ‘type in Ireland’.” There were reports of abuse but no video. He admitted that when the social worker called to the house with a Garda to speak to him about the entries in his son’s diary he had said he would take the children back to Africa but did not say it was for them to be beaten.
He said his relationship with his wife was now excellent and they were attending two counselling sessions a week. The judge asked him about allegations that he had thrown a frying pan. “Is that correct?” “That’s not true. When I took it from her the frying pan fell over.” When it was put to him that he had told the school principal he had used a switch on A, he denied that he had made that admission. He also denied punching him in the face and said that the social worker had written things about him that were totally untrue.
The judge asked him if he had made references to biblical authority for chastising children at a meeting with the social worker and he agreed that he had done so. “Yes I did. The reason I sometimes chastise them is the Bible says while there is hope for them correct them. That is why I sometimes physically chastise them.”
Hearing the children
At the conclusion of the father’s evidence, the Judge said he believed he had no choice but to hear from the children. The HSE solicitor expressed concerns about the possible risk to the children by giving evidence and that sufficient evidence of chastisement of the children had been given. He asked for a deferral as it would need to be considered by the HSE but the judge said time was running out. “In an ideal world we would have time to carry out a full assessment by a psychologist. We have to deal with the situation as it is,” he said.
The children were, he said, the subject of an Interim Care Order which was granted ex parte. It was a compromise of fair procedures which he was satisfied to do on the basis of evidence put before him. He could not hold at that stage that the allegations were entirely reliable to the extent that he did not need to hear any more evidence and the children were available to give evidence. There was, he said, an admission of a level of chastisement which, subject to submissions, might or might not be sufficient to establish abuse or neglect. There was a considerable conflict of evidence about the frequency and degree and it was a matter of degree as to whether if amounted to assault, ill treatment or abuse which would constitute grounds for an ICO.
There might well be an injustice if he didn’t hear the children. Having met them and with no psychological training, his impression was that the two older children would be capable of giving evidence with some protective measures such as a video link in place and with some assistance as to how the children should be prepared for it but not at the price of delaying it for some period of time. He was of the impression C was not of an age to give evidence. He had no doubt that giving evidence would be traumatic but he had to consider whether that trauma might inform the court in making the right decision given the conflict of evidence.
The HSE solicitor reiterated that he had made an application in accordance with section 23 1(a) of the Children Act 1997 to admit the evidence of the children as evidence of the facts and he asked for time in which he could take instructions from the HSE.
The judge rose for a short time and when he returned the solicitor for the HSE said his instructions still remained. He was not in agreement with the children being called to give evidence, at least until the potential trauma to them was considered. The solicitor asked for the appointment of a guardian ad litem to consider their interests before they came to give evidence. He asked if the barristers for the parents would be cross examining the children or if they would be simply allowing them to give their narrative.
“How can they know?” the judge asked. The solicitor asked for a child psychologist’s view on the impact on the children into the future. “Of course it is going to impact on the children,” the Judge said. “The children being taken into care is impacting on them. Leaving them in care will impact on them. I don’t need a psychologist to tell me that coming into court will impact on them and if you want a psychologist it’s your section 23 application and you could have had a psychologist here.”
Mother’s evidence
The court then heard evidence from the mother of the children who said that when C had said she had beaten her what she really meant was that she had smacked her and she said she had only done that once. She said she hit B once or twice on the hand with a spatula but that she sent her to bed if she misbehaved now. She said she had also smacked A with a cloth belt which belonged to his sister. “But I don’t smack him any more,” she said.
When she was asked if she had hit A with an iphone cable, she said she had done so on one occasion about two years ago. She said she did this after he had been repeatedly causing problems at school. She had smacked him and had made him kneel on the floor. His behaviour did not improve and she said she had hit him on the feet with the iphone cable. This had happened about two years ago and it was the only time she had done so. She denied that she had hurt the children when she had smacked them.
Because of difficulties with their skin and other problems the children attended their GP sometimes as often as once a week. They went swimming frequently and they engaged in other sporting activities and there had been no reports of injuries or abuse. The HSE solicitor asked her if she had beaten B with the iphone cable and she said she had never done so and she denied that B had asked her to stop beating them.
The judge said the children were making similar statements and some of their allegations had been accepted. A’s allegations had continued until the diaries were completed. There were a number of corroborating facts which suggested there were matters within the house which were more credible than not and there were reasonable grounds for believing they had been physically assaulted. He was particularly concerned with the use of implements. The parents had effectively conceded that all forms of chastisement which had been alleged had been used with the exception of the use of a petrol hose or funnel. They had also denied punching the children.
The mother’s barrister submitted that the children had not been hurt but the judge interjected that there was not evidence as to whether they had been marked. The barrister said the belt which had been used was a child’s canvass belt. The children went to swimming and other sporting activities and there was no evidence that they had been hurt. It was moderate and reasonable and she did not believe that any threshold had been met.
The father’s barrister referred to the length of time since the children had been previously punished. There had never been any evidence of physical markings or actual harm. What had occurred, she said, was very much on the mild scale of chastisement and it was certainly within what could be regarded as reasonable.
The judge said he didn’t accept that striking a child with an iphone cable was within the grounds of reasonable chastisement of a child. He referred to the definition of mild and severe corporal punishment in a report published by the Minister for Children and Youth Affairs in 2010 which stated that mild corporal punishment was “smacking, pinching or hitting, slapping on arm, leg, hand or buttocks: did not involve the use of implements; no physical injury sustained.”
Severe corporal punishment was defined as “repeated, prolonged, or involving the use of implements; causing likely or actual harm, punching, kicking, shaking, knocking down, burning, scalding, threatening with a knife or gun”.
Decision
The judge said he had to be cognisant of the fact that while the parents had previously admitted using belts and other implements, there had been no admission of using an iphone cable until the evidence given today by the mother and it coincided with the allegations made in the written diary by A. He had not admitted the evidence of the children as yet but he did not believe that he could ignore the existence of the diaries. He had to attempt to reach an order which was proportionate. This was a case which was about corporal punishment and emotional abuse and he was satisfied, on the basis of the evidence which he had, that there had been ill-treatment. He said it was proportionate to make an Interim Care Order and adjourn the section 23 application by the HSE to admit the hearsay evidence.
He said the issue of corporal punishment was something that could be appropriately dealt with by discussion and education. It was not a cultural or religious issue. “I am satisfied there is a universal standard in relation to what is acceptable regardless of where they were brought up,” he said. Corporal punishment in this country had been “regular and savage and 20 years ago it could be said it was part of the culture of this society. Even if it was, it doesn’t make it right. Even though there may be different views, it cannot exceed the threshold of ill treatment.”
The judge extended the Interim Care Order and when case was before the court a few weeks later the HSE social worker said the children were now residing in two different placements. They had been medically examined and A had told the doctor of incidents of bed wetting. They were generally in good health. The social worker had met with them and A told him he was worried about being blamed for what had happened. His sister C had told him it was his fault. He was less anxious to speak with the social worker and kept asking when he could go. B asked when could they go home but said she hoped her mother would stop the long talks and saying what a disappointment she was. She also said she hoped the hitting would stop. She seemed genuinely upset and wanted to go home.
Further Developments
The social worker said that, since the last court hearing, he had a further meeting with the parents which he described as open and honest. The parents acknowledged that their marital difficulties had been significant and that the children had been affected. The father accepted that physical punishment was a central issue in the case and that it was not the most appropriate way of disciplining the children. He agreed that some form of mediation between himself and A be explored and he had suggested that the social worker should act as mediator.
The father felt that A was the only one who had been affected and suggested that he had been trying to set traps for him and had been testing him. The social worker said he had discussed reunification with the father who had agreed that certain changes would be needed in relation to physical chastisement and emotional abuse.
He had discussed similar issues with the mother who had referred to the financial strain they had been experiencing. She had admitted slapping and hitting the children. She had tried talking to them first but that A had been defiant and had been disobedient. For instance, he had put wires into electric sockets despite being warned not to do so.
The mother had been quite positive about family parenting. She did not have any personal bitterness towards A but she clearly believed that he was responsible for the present difficulty. Domestic violence was openly discussed and the social worker said they had appeared to have addressed this. It had been mainly verbal rather than physical.
A case conference had been arranged to formulate child care protection plans for the four children, which the parents would be attending. The purpose would be to put together a comprehensive plan with the ultimate goal of reuniting the children with their parents. This would include family therapy and mediation. The social worker said the Interim Care Order should be extended. Only one meeting had taken place with the parents. Commitments had been made by them in the past that had not been adhered to. A case conference would bring all the professionals together. The assessment period had been very limited and the grounds for seeking the ICO had not changed.
The father’s barrister said that the parents were extremely concerned about the impact which the separation was having on the children particularly on A who was now wetting the bed. The social worker said he did not know what was causing it but that A was adamant that he did not want to go home. He could not say how long it would be before a reunification plan would be put in place and the barrister said that nine of the previous 28 days had now been spent in court. The social worker said the case conference would put a specific plan in place which would include the provision of information about appropriate means of discipline.
An access worker told the court of an incident during an access meeting where A, who was sitting apart from his brother and sisters, refused an offer of food which his mother had brought to the access session. The worker said the father became angry and had called him an ungrateful child. He said to him: “This is all your fault.” D started to cry and the access worker said she felt physically threatened when she told the father to calm down. She told him to step outside the room and the access continued without him.
The father said in evidence that his children were going through emotional trauma. D had bruising on his back and C was particularly traumatised. He denied he had called A an ungrateful child or that he had physically threatened the access worker. “I just said put yourself in my shoes and how would you feel.” He said he went downstairs and got into his car.
The judge noted the positive meeting which had taken place between the social worker and parents. Sufficient progress might be made which would make reunification a possibility. Each of the children would have to be treated individually and separate plans would need to be put in place.
He accepted that A was experiencing stress but the fundamental cause of this was the situation at home. “The fact that he is suffering stress in care does not mean he should be sent home.” That was, he said, too simplistic and the child needed to be helped on a more comprehensive basis. The case conference should identify what is required and what time scale is involved. It should be shorter rather than longer. He noted that the application by the HSE to admit the hearsay evidence was still before the court and if that issue was not resolved between the HSE and the parents, “I will have to hear the children.”
The judge extended the ICO for a further 28 days and in the meantime a child psychologist would assess the capacity of the children to give evidence if required. He also directed that the HSE produce a time line for reunification following on the forthcoming case conference. It was not in the interest of the children that they remain in care longer than was necessary. “We are at the least worst situation and it might no longer be proportional to continue the Interim Care Order”, he said.
An assessment of the children was subsequently carried out by a clinical psychologist who was asked for her opinion as to the capacity of the children to give evidence in court and whether it would be in their best interests and the likely impact which giving evidence would have on them.
She told a subsequent court hearing that, while she believed A and B had the intellectual capacity to give evidence, she had concerns about their emotional capacity to do so. Giving evidence would not be in the best interests or welfare of the children. She said she would be very concerned about the psychological impact on them of having to give evidence. Asked if giving evidence by video link would alter her opinion, she said she believed the effect would be the same as the children would be aware that their parents were hearing them in the court.
The court heard at a later hearing that, under a reunification plan put in place by the HSE, the two youngest children C and D returned to the care of their parents. A and B were still in foster care and did not want to return to their parents who, the court was told, were working hard on a parenting programme and were fully engaging with the HSE. A HSE social worker told the court that B had moved from wanting to go home, to not being sure, and now to not wanting to go home at all.
The mother’s barrister said B was getting €10 a week from her foster mother and B’s mother would say that the child had said she will not go home until the mother agrees to give her €10 a week pocket money. The judge asked the social worker if there were any HSE guidelines to foster parents with regard to pocket money or gifts and he was told that the decision to give a child pocket money was not a decision by the HSE but was within the foster parents’ prerogative.
The judge said the social work report indicated that their reunification plan was being undermined as A and B were expressing an unwillingness to return home. Given that the plan was not proceeding smoothly and the possibility that A and B were manipulating the parents he said he was going to appoint a guardian ad litem.
“There is no action in any child care case that can be certain to achieve the result that’s wanted, but in these circumstances I think it is appropriate,” he said.
