An interim care order was granted in Dublin District Court for a young baby (F) following a lengthy and highly contested trial that continued over a number of months and was heard by different judges during that time. The mother was from a non-EU country, two of her three other children (A, B and C) were in care and the oldest was now over 18. Their father (Y) was an Irish national. The father of the baby (X), from the same country as the mother, had two teenage children (D and E) from another relationship who had also been of concern to the Child and Family Agency (CFA) when they were found abandoned in a playground. Interpreters were engaged.
Synopsis
The main basis for the CFA’s concern about the baby was the history of its previous engagement with the family, in particular relating to the mother’s older children, all girls. The children’s grandfather had a conviction for the sex abuse of a young girl, the friend of one of his grandchildren, but the CFA alleged that the mother had not engaged with an agreed safety plan, leading to her older children being taken into care.
The CFA also had concerns about the baby’s father ability to care for him, as he had not cared for his two older children following their arrival in Ireland from their home country. They ended up living with another family.
At the beginning of the case, when the baby was still in the maternity hospital, the solicitor for the CFA said there was a history of non-engagement by the family and a blatant refusal to engage with social workers over significant serious concerns regarding the children’s safety. The information regarding the mother’s address and living arrangements that was provided to the CFA was not the same as the information that the CFA already had, so it was not possible to check on the family.
The barrister for the mother said that the CFA’s concerns were not sufficient to take a new-born infant into care. This should be a measure of last resort, after all other avenues had been explored. Any non-engagement by the family was due to their fear and vulnerability. Their lack of a support network was linked to the reluctance of friends to engage with the CFA and Garda vetting due to their undocumented status.
She said that the mother had engaged in negotiations with the CFA to undertake an assessment for a placement for her and baby in a child and family unit. Alternative arrangements might be a foster placement that could take both mother and infant or a hotel facility staffed with social care professionals. Discussion on a possible placement continued in parallel with the case being heard.
Extensive evidence was heard of allegations made by the older children, including of physical and sexual abuse by their father, physical abuse by their mother and grandmother, and exposure to sexualised behaviour, including witnessing their mother and her partner having sex, and neglect.
The mother contested that evidence, claiming that when the children first went into care they had wanted to come home, and the allegations had only emerged after they had spent some time in care. She rejected the allegations.
Granting the interim care order and setting a date for the hearing of a care order application, the judge said that no alternative arrangements had been put to the court that would work. He said that some of the circumstances identified existed that made the order necessary for the child’s safety and welfare, pending the outcome of the care order application. He said access should be generous, the mother should receive support and reunification should be addressed.
Garda evidence
A garda sergeant liaison officer for child protection gave evidence that the oldest child (A) had made ten notifications about her life while in her mother’s care. The child detailed physical abuse, sexual abuse, being dressed inappropriately and being left home alone for long periods of time. The younger child made six notifications to the CFA.
The children’s maternal grandfather had been convicted of sexual assault of the seven-year-old friend of one of his grandchildren and was now on the sex offenders’ register, therefore a safety plan had been put in place regarding the children. The mother was living with her parents at the time her father was put on the sex offenders’ list. The Gardaí removed the children due to the mother’s non-compliance with the safety plan, which involved living with their father (Y). The two older children refused to stay with their father, but the youngest child did return to live with her father.
An allegation had been made against the grandfather, all three children had been interviewed, and a file was submitted to the Director of Public Prosecutions. The mother had been interviewed as part of the investigation, but she had denied all of the allegations. A child protection conference was held, and it was explained to the mother the importance of providing her address, however, the family continued to move regularly, and the mother failed to provide her address, which she had still not done.
Sergeant: “I had very high concerns. Three children are in care due to the family not complying with a Tusla safety plan. Because of the breach the children ended up in care.”
The garda sergeant said that there had been numerous disclosures by the children regarding their care while with their mother. Also, two children of the mother’s current partner (X), and father of the baby who was the subject of the application, came to Garda attention in 2022 when they were abandoned at a playground. They had only recently arrived in Ireland and had been left at the playground all day. She said that a number of these children’s allegations were similar to the allegations of the other three children in care, such as being left alone for long periods of time, being dropped off at school before it opened, not being fed, and allegations of sexualised talking.
She said that the mother’s address changed so often there was often difficulty in determining where the mother was residing. “After four years we still don’t have her address.”
The mother’s barrister asked the court for an adjournment. She said that the hospital said that they would accommodate the mother and baby over the weekend while a place in a mother and baby home was being sought.
The judge said that the court was told that the mother would fully engage, however if on the next date the mother was found to not be fully engaged then that would be taken into consideration by the court. He said that he would seek an update on the mother’s level of engagement on the next date.
When the case resumed some weeks later the mother’s barrister said it was not proportionate for an interim care order to be made. The parties were not that far apart. The only substantive difference between what the mother and the CFA were seeking was that on an interim basis, prior to obtaining a placement in a mother and baby unit, a foster placement would be sourced near the mother’s home so that she could have meaningful access with her new baby. If a placement was available within 40 minutes of the addresses provided, then the mother would be open to a voluntary care arrangement. Any voluntary arrangement should be based on daily access occurring.
The father’s solicitor said that a placement near where the parents resided was preferable as it would allow the father to continue working to support his family.
Social worker for father’s older children
A social worker gave evidence of a meeting with the father’s two older children, who were teenagers. They had come to Ireland unaccompanied to be with their father while their mother remained in their home country. They were found alone in a playground by a family, a few days afterwards a referral was made to the CFA and the social worker was assigned to the case. After briefly living with their father and the mother in this case the children went to live with the family of the woman who had found them, who had become known to them through her own children.
Asked how the mother had explained this, the social worker replied that she had said that there was a leak in the house, and they had no electricity. “The mother advised me that the woman was her friend.”
Social worker: “I had a conversation with the father regarding the children’s care. Clear and straight, he said that he couldn’t take care of the children. He didn’t give a reason, he said that he did not want to elaborate. His English was not great, he was offered a translator, but he refused.”
The CFA barrister asked the social worker how she had satisfied herself that the woman was an appropriate person to look after the children. The social worker said that she had made preliminary inquiries and that the children’s father and his partner, the mother in the case, were satisfied with the private arrangement. The social worker also spoke with the children’s mother in her home country. She was highly stressed and very worried.
The mother’s barrister asked this social worker if she had ever met with the mother of the new-born baby. She said that she did not meet her until she supervised access with the baby. The barrister said that the mother would say that when the father’s children first moved in with the mother and their father their relationship was fine, but when the mother became pregnant the girl got very jealous.
The mother’s barrister also said that the mother would say that the children’s mother had arranged with the woman who found the children in the playground for her to care for the children.
Judge: “How could the mother arrange for that when she was in her home country?”
Social worker: “The information that I have is that the daughter contacted her mother after they were at the playground for a long period of time, and they were quite upset and didn’t know what to do. The mother spoke with the woman who found the children and asked if the children could stay with her for a bit. The mother told me that she arranged it. We know that the children’s clothes were dropped in that evening, but to clarify, I don’t know who arranged it.”
The father’s barrister asked the social worker if she was involved in the father’s teenage daughter (D) going to live with her boyfriend and his family. The social worker said that she tried to contact the father several times, but he was unavailable. When she did speak to him, he was straight to the point that he did not want to care for his children.
Social worker for mother’s older children
The social worker who had been assigned to the mother’s case in 2019 in respect of her other three children with a different father (Y) then gave evidence.
The social worker said that the children had been placed in voluntary care in 2019. They had lived with their father (Y) after a custody application. She said that the CFA had adjourned an interim care order after it had been agreed that the maternal grandparents would not have access with the children as the grandfather had been convicted of child sexual abuse.
A safety plan had been put in place, but it was not successful. The three girls and their mother were living with the maternal grandparents. There had also been concerns regarding the care they received at their father’s, where they lived for a time. The children had made allegations that they had no privacy, there were a lot of arguments, they were hit and the Gardaí were called on numerous occasions. The CFA tried various supports but decided that the father and children needed a break from each other. She said that the break then turned into a full-time care arrangement. She said that the father was hesitant about the children going into care, but it was her opinion that the children should have been in care all along. She said that she was not happy when child C went back to live with her father.
Child B had given her a letter to read to the judge, which she read out. In it the child said she was looking forward to her birthday this year and she wanted to stay where she was (in care). She said that she loved her mother and child A but she did not see child C and she was very worried about her because of that. She said that when she was with her mother she worried about her mother instead of herself. She said that she did not have a relationship with her father and did not want one right now.
The social worker said that she had been involved with child C for approximately two years. Prior to the interim care order child C had lived with her father and before that she had lived with her two siblings, mother and maternal grandparents. She said that C had made allegations of physical and sexual abuse against both her mother and her father. The father was struggling with the care of the children.
Referring to the safety plan, the social worker said: “During our conversation I identified that [the mother’s] children should not be around her father, and that her being there was not enough to keep her children safe. The mother was not accepting of that.” She said that the mother was very hesitant to accept her father’s conviction.
The social worker said efforts were made to get the mother to identify a support network, but little progress was made. She found it difficult to trust and counselling was recommended, but not proceeded with. At a meeting the mother was upset and told the social worker that there were secrets in her family. The social worker had asked her what she meant but said that when she tried to explore the statement the mother would change the subject.
The three children had had an examination conducted by a paediatrician. Child A and B’s examinations were incomplete as they refused to complete the more intimate part of the examination.
The children had said they wanted access with their grandfather and access with him was supervised. The family then lost their housing and the grandparents had become homeless, the mother moved elsewhere but it was not clear where she lived. Access was suspended. In the subsequent years access was sporadic, relations between the siblings were fraught and the children had an ambiguous attitude towards their mother.
In Nov 2021 the CFA had become aware of further child protection disclosures and access was suspended with all family members. However, the children were always saying they wanted to have a relationship with their grandparents. The grandparents had been heavily involved in their upbringing. There was a court order that the grandfather could not be alone with the children, but the mother was not complying with that, which was why they were removed, as two of the girls were thought to be at risk of being sexually abused by the grandfather. The mother refused to believe that her father was guilty of the abuse of the six-year-old child which had led to his conviction. The grandparents were not acceptable to the CFA as the mother’s support network because of the grandfather’s conviction.
There was a dispute between the mother and the first foster carers, where she alleged that the children had made a number of complaints about how they were treated. The CFA found the complaints to be unfounded. During that time the children said they wanted to return to their mother. The initial foster placement had been a respite arrangement, but the children had said they did not want to return to their father’s case, so it turned into a longer arrangement.
Up until March 2020 the girls were attending and enjoying access and saying they wanted to return home. However, face-to-face contact was stopped when one of the girls complained that her mother was pressurising her to return home. She also made allegations of physical and sexual abuse, leading to the children being examined by the paediatrician.
The mother’s lawyer asked the social worker if the medical examination had revealed any scarring or bruises and the social worker acknowledged it did not. One of the children refused to be examined. “You couldn’t or wouldn’t support reunification because my client couldn’t provide a safety network,” the lawyer said.
The barrister for the CFA said that in March 2019 the mother was directed that no access should take place with the grandfather until a safety plan was put in place. “Did she give any explanation why she was allowing the children to see the grandfather?”
Social worker: “She thought it was an unreasonable request, she thought her being there was enough to keep the children safe.”
The barrister also pointed out that a Garda notification had been received about the children’s father, and information had come to light about the first foster parents, leading to the CFA speaking to other children in that placement, who had raised similar concerns.
The barrister for the mother asked the social worker why the children’s grandmother was not considered a suitable person to be part of the safety network. The social worker replied that the grandmother also did not believe in the basis for her husband’s conviction.
Social worker for baby
A second social worker, who was involved with the family but independent of the previous child protection team, spoke of the family welfare conference arranged with the family to discuss the expected baby. This was a voluntary process which provided the family with an opportunity to work in partnership with the CFA and come up with solutions. Its purpose was to help the parents identify a group of people to provide help and work with Tusla. This could be a family and friends’ network of people with a bit of time who were willing to support the family. They must be Garda vetted, but it was up to the family to identify them.
The parents were not happy with the content set out in the list of worries Tusla had, which related to the past harm to the other children, they only wanted to discuss the baby. They did not see the relevance of the past concerns.
The parents could not identify anyone to be in the safety network. The social worker had engaged with them for about two months, but they failed to identify anyone. Asked what Tusla did in such circumstances, the social worker said the agency did whatever was necessary to safeguard the children, including taking care proceedings. She added it had not been easy to engage with the family, they had not been proactive.
Senior social worker
A senior social worker who was involved with the older children following the granting of interim care orders said that the three girls were now in the same foster placement. They had access with their mother. A parenting capacity assessment was still ongoing. However, there were concerns as the mother was contacting the oldest child outside of access and this led to fear and worry on the part of the girl, who was anxious about being approached and wouldn’t go to school. A court order was obtained preventing direct and indirect access.
The social worker said that B had told her that when she lived with her mother her mother had hit her with a hair brush, a hanger and a belt with studs in it. She had also described a number of fights between her parents. She used to have headaches so severe she had to go to hospital. Her mother did not stay with her in the hospital, but her grandmother did. However, her grandmother had also beaten her, though less than the mother. She heard her younger sister screaming when the mother was hitting her.
The social worker said the girl had claimed that her mother had killed someone in her home country. “When they said, ‘you will kill her’, I never doubted it,” the girl had said. She said she had kept diaries but they were burned. She had told her teacher but said she thought the teacher had made it up.
The social worker was very concerned that there was no safety network for these children. No matter what Tusla did there was always a risk of physical abuse.
Asked about the credibility of the girl’s allegation, the social worker said she had been interviewed by an interviewer with 20 years’ experience. The girl gave a lot of free narrative. A lot of her upset was not being able to protect her younger sister, and this sister being left at home as long as she was.
Following a further adjournment the case resumed with evidence on access between the mother and the baby. While there was good interaction between them, the mother spent a lot of the time during access, which was semi-supervised, on her phone. The father was present for some of the accesses, but on one occasion when he should have been at an access he was found lying on a pavement very drunk.
The mother had come to Ireland in 2002 and the father in 2009. They did not have a support network and viewed the social worker in a negative light. The social worker said she would have liked the see the mother engage with services but had not done so.
The mother’s barrister said that the father had been open about his drinking, his mental health issue and his problems in his home country. The baby had been doing well in utero and the pregnancy had progressed well. The social worker said they viewed the risk at level three (zero being the highest level of risk) because of the parents not acknowledging the concerns of the social work team.
Barrister: “Why is the recognition of the concerns you have important?”
Social worker: “To see if the parents can view the situation from the perspective of the children. The mother said the allegations are not true.”
Barrister: “Was the father given an opportunity to respond to the allegations?”
Social worker: “Yes, he was. He didn’t give a reason for not engaging in the child welfare conference. I think he found it very challenging, it was new information to him. He told the social worker he was not aware of all of the allegations against the mother, he found the meeting very difficult and at one point he got very upset and had to adjourn the meeting for the next week.”
The family was living in a provincial city at this time, but moved to another town shortly before the birth and the mother arrived at a Dublin maternity hospital for the birth, without having had any previous contact with this hospital. It obtained her notes from the hospital in the provincial city. The baby was born in February 2023 and, on his release from hospital, was placed in the care of the CFA under a voluntary arrangement. The parents had 48 hours of access a week, supervised and semi-supervised. The social workers were not concerned about the parents’ ability to provide the baby with basic care.
The family was referred to two units, but these units were concerned that they were not suitable for admission because of their lack of insight into the CFA concerns, and the need for extensive translation services.
The barrister referred to the danger statement, which outlined the areas of risk as neglect, as a new baby can cause stress and he might then not receive proper care, like the father’s older children, who had not been fed while in the parents’ care. There were seven allegations relating to sexual abuse, including that the children had witnessed sex between the parents, the sex abuse conviction of the grandfather and the physical abuse allegations.
Barrister: “The allegations are from children that are older. Does that have any impact on your view?
Social worker: “A newborn baby can’t tell me if something is wrong. A significant indicator of future harm is past harm. Research tells us that the best predictor of future harm is past harm.”
In order to be satisfied that the baby would be safe he would need 24/7 support and safeguards, given the risks that arose in this case. The father was working full-time and would not be able to care for the baby or ensure that he was not with the grandfather.
Following a further adjournment the resumed hearing heard of the care plan for the baby, who was in foster care with extensive access. The mother’s lawyer said that if the interim care order was made the mother would be looking for access five days a week. The lawyer stressed the importance of maintaining the maternal bond and the social worker agreed that if the baby was to return to his mother in five or 56 months it was in his best interests that access was kept as frequent as possible.
The social worker accepted that there was a power imbalance between her and the mother, an immigrant who did not speak English well. The barrister said that the CFA had unilaterally changed the access terms in the voluntary care agreement. The changes were not brought to the attention of the mother’s legal team.
The lawyer said that the allegations made by the daughter (B) had not been independently corroborated, and the mother denied them. The mother said her daughter had fabricated the stories because she wanted to stay with the foster carers. The children had a regular GP and he had not noted any issue, there had been regular school attendance. Fair procedures had not been applied to these allegations. There had been a change in the girls’ attitude when they went into foster care.
The social worker said that to her knowledge the mother’s children and the father’s children did not know each other, but had made similar allegations. She also said the daughter had said the mother had complained to her about the size of the father’s penis, which was inappropriate.
Lawyer: “Have you considered that she is fabricating because she wants to have a better life? The mother will give evidence that she didn’t fail to disclose that the CFA was involved when she went to GP with her pregnancy. She wanted to work with the CFA but felt after the child in care review in July the writing was on the wall that [the baby] was going to be taken into care and she panicked.” This meant she did not inform the CFA when she moved. This was evidence of a mother wanting to parent her own child.
Referring to the difficulties the mother had in finding a support network, the lawyer said that there were people she knew [who might support her but] who did not want to be involved with the state. Some of them were undocumented. If they were to be involved with the children their names would have to be given to An Garda Síochána. “I can see why it would be difficult for her to identify a support network. These are undocumented people.”
The lawyer asked why it was not possible to find a solution that would keep the baby with his parents, and asked whether the damage done to the baby by being separated from his parents had been considered. The mother had looked for support from the CFA, she could not access support within her own community. The social worker said the CFA could not provide the type of 24-hour wrap-around service that was being sought. Residential services that had been contacted were not willing to take the mother and baby because she was not accepting of the risk. The decision to seek an interim care order was not taken lightly.
The lawyer pointed out that under Article 8 of the European Convention on Human Rights it was only when no other option was available that a child should be removed from his parents. “There is another option available, it is only the CFA’s policy that they don’t have services available,” the lawyer said.
In relation to a safety network, the social worker said that for the past four or five years the mother said she did not have a safety network. “Her family keeps everything secret so she can’t find a support network.”
The father’s lawyer said that the past harm referred to related to the mother’s other children, they did not relate in any way to the baby’s father. There were no allegations relating to him. The social worker said that the allegations included those by the father’s older daughter from the time she lived with the couple, that there were issues of physical abuse in the house. The lawyer said that the father did not accept these allegations, they were exaggerated by his daughter who had not wanted to come to Ireland. The social worker said that the daughter’s allegations were very similar to those of the other children. She confirmed that the file on the father’s children had been closed, and the lawyer said that the father had had no opportunity to rebut the allegations.
The lawyer read from the access report, which stated that the father had been calm and responsive when playing with his son. The lawyer pressed the social worker again on the possibility of supporting the family under a supervision order, and the social worker said that a lot of the time they would be alone with the baby, professionals worked 9 to 5.
The case was further adjourned, with the barrister for the CFA saying it was expected to take another two days.
Mother’s evidence
When the case resumed the mother gave evidence and was asked about her father’s sex abuse conviction in 2018 and the safety plan that had subsequently been put in place. This involved the girls sleeping in their father’s house with their grandmother, the mother’s mother. The mother said it was not possible for her father to move out of their home.
She agreed that she had said she preferred the girls to be in care rather than staying with their father. Asked why, she said she and the girls’ father (Y) were having a lot of arguments at the time, and he often called the guards. She agreed she had said Y was not feeding the children properly, was addicted to gambling, was controlling, aggressive and financially abusive.
The CFA barrister put it to her that her father had been alone minding the youngest girl on at least two occasions, contrary to the safety plan. The mother denied this. The two older girls went into foster care in July 2019, the youngest remaining with her father, and the mother had extensive access. The mother said that at this time the girls said they wanted to live with her and their grandmother.
The lawyer went through the allegations that the girls had made against the mother. The older girl said she had been beaten all her life. The mother denied this. She also denied watching pornography in front of the children, and that the girl had had a sexual incident with a young boy when she was aged about seven. This involved the young boy putting his penis into her vagina. The mother said she never heard that before.
The lawyer said that when the child was eight the mother had encouraged her to have relationships with boys, and that the girl had witnessed the mother having sex, including oral sex, with her partner, and that the mother had told her to stay and watch as she would need this when she was older. The mother said none of this was true.
Asked why she thought her daughter made these allegations, she said she did not know.
The lawyer then asked the mother about her relationship with her partner’s children when they came to Ireland in 2022. She said she had not met the children before. She said initially she had a good relationship with these children. She denied leaving them in a playground alone. She said they wanted to stay with their friend’s mother, and the woman came to the house to collect their clothes.
The mother was then asked about her pregnancy and her reluctance to accept help from a medical social worker. She agreed that when she moved from the provincial city to another town while pregnant she had not told the social worker as she was afraid the baby would be taken away.
The barrister explored with her options other than an interim care order. She had been asked to identify a safety network, but had been unable to do so. The mother said that people did not accept to be involved because they had to be Garda vetted. People were scared. She agreed she had been unable to get a safety network when the girls were being taken into care.
Asked if she was willing to have strangers help her with the baby, she said she was. She would accept the social worker, the guardian ad litem (GAL) and the Gardaí coming in to her home to check on the baby. She also said she would agree to being assessed by a psychologist as to whether she was a risk for physically or sexually abusing a child.
Asked what she wanted to say to the judge, she said: “I would like the judge to give me the opportunity to care for this child. I love him, I always wanted to have a boy, I beg you to give me one chance. Please don’t take my child from me.”
She told the CFA lawyer she had been a successful business woman until she stopped working and had supported her parents, to whom she was very close. She agreed that her working meant that the girls were often cared for by their grandparents. For periods the children lived with the grandparents, not with their mother. Asked why, she said: “Because my marriage was not working.” Eventually she left her marriage and went to live with her parents and the children.
Asked about her father’s conviction, she said she did accept he was guilty. Barrister: “Do you believe that he did it?” Mother: “Yes.”
She accepted that despite this, she still had a positive relationship with him. “He is old now and he is my father.” Asked if she believed he posed any risk to children, she said nothing ever happened to her children. The lawyer pointed out that on the previous day she had said she did not believe her father had kissed the young child, which led to his convicted. She accepted he had been convicted, but not that he was guilty. She had a different answer now.
The judge asked the barrister to repeat the entire line of questioning from when he asked about the conviction, and the barrister said that the inconsistency in the answers was itself part of the issue in the case.
Asked by the judge if she understood the contradiction that had arisen the mother said she did. She said that when asked if she believed that her father had kissed the young girl, she had said No. She did not believe he was a risk to children. Now she found out this was why she had lost her girls.
The lawyer told the court that he thought there was an issue with the translation. The translator came from a different country and spoke a different dialect of the language to that spoken by the parents.
Turning to the issue of the children living with their father, the mother agreed she was unhappy about it. Asked why she did not go to court to have custody of her daughters, she said she did not have a solicitor at this time.
The lawyer said that the concerns about Y turned out to be well-founded. There were multiple allegations from the girls against him of physical and sexual abuse. The barrister read from a statement the youngest girl had made to Gardaí, where she described being in bed with her father who was touching her all over her body. The middle girl had also described being sexually abused by him.
Barrister: “You were worried about the allegations against [Y]. Looking back you were correct. Your concerns about the girls and [Y] were well founded. You heard allegations about very serious physical beatings by [Y], you accept your daughters made those allegations, you also heard a number of allegations made by [B] and [C], in relation to sexual abuse by [Y].”
Mother: “It is very sad for me as a mom… I always find it hard in this court…. Everything I heard is very sad, what she said about me is not true, what she said about him is up to her.”
Lawyer: “Allegations of sexual abuse have been made against you by [B], allegations of physical abuse have been made, allegations of neglect by [B] and [X’s] children. You accept that those allegations have been made against you?”
Mother: “Yes.”
Lawyer: “Are those children lying?”
Mother: “Yes.”
Lawyer: “They are lying when they make allegations against you. What makes the allegations against [Y] true and the allegations against you not true?”
Mother: “I can’t confirm the allegations against [Y] are true. I wasn’t there.”
Following a further adjournment the mother continued giving evidence.
Asked if she had any concerns about the father’s parenting, she said she did not, he was a very good father.
The lawyer pointed out that on one occasion when he was supposed to be at access he had been found by Gardaí severely intoxicated. The mother said this had only happened once in the four years they had been together. He had been very stressed about the situation.
Asked if she had any criminal convictions in Ireland she said she had one for not allowing the girls’ father [Y] have access with them when she thought they were meant to be at access with her. The lawyer said she also had a number of convictions for driving without insurance.
The mother replied that she had a problem with her driving licence and the police were chasing her about it. Asked if she had lied to the GAL about her criminal conviction, she said she did know that driving without insurance was a criminal conviction.
Asked about her move from the provincial city to the rural town on the other side of the country, she agreed she had not told the social worker. She said she had been going to tell her. Asked if she had been dishonest with the social worker, she said: “I was afraid of her. She wanted my baby. As soon as my baby was born she was going to take him. I didn’t want to move to [the town], I wanted to move to Dublin. I wanted a fresh start, a new life and clarify everything in Dublin.”
Lawyer: “I understand your motivation, but it makes it impossible for the social work team to work with you if you cannot provide something as simple as where you live. It makes it impossible for them to work with you and to trust you.”
Mother: “I will tell you the truth now. Since the beginning I was always honest with Tusla, I love my kids, from the previous experience I had with them. I was always honest with them and they wanted to take my kids away from me.”
She said she had tried to work with Tusla, and had gone to see the mother and baby unit that had been under consideration.
Lawyer: “What do you say about the concern of the mother and baby unit, who think that you lack insight? The CFA had concerns about you as a parent.”
Mother: “I wasn’t aware of the worries that they had about me. I tried my best.”
She said she had visited two mother and baby units, but they had not accepted her.
Lawyer: “Do you understand that the CFA have concerns about neglect, you previously failed to meet the needs of children in your care, you will fail to meet the needs of [the baby] if he stays in your care. Do you understand those concerns?”
Mother: “I understand their concerns but I am blamed for something that is not proven. There are allegations against me but what is the proof of those allegations? There was never a problem while I was married, the allegations were made from 2021, now if it is proven that I did what they say I did, then I accept that you take [the baby] from me, but there is no proof so how can I defend myself? I am losing my children with no proof but only allegations.”
The lawyer put the CFA concerns to her one by one, and she insisted that there was no proof for any of them. When the lawyer referred to evidence given by the social workers, she said they were lying, and one of them had forced her to sign an access agreement.
Lawyer: “You say an awful lot of people involved in this case are lying. It is your position that they are lying? Your position is that you have told the truth?”
Mother: “Yes.”
The barrister for the GAL then questioned the mother, first asking her if she understood the role of the GAL. She said she did.
The barrister asked her about the girls living with their grandparents for two years. The mother said at this time she was having marital problems with Y and was trying to make her marriage work. She did not want them to see the arguments. She said the girls were coming to her house to eat, but not staying. She agreed that Y verbally abused the children.
Asked about evidence that she had told the children not to talk about family issues outside the home, the mother said: “It was always said that what happens at home stays at home.”
She was questioned about what she had told the GAL about the reasons for the CFA’s concerns about the baby. She had told the GAL that the allegations against her were physical abuse, she did not mention the allegations of physical abuse, that she had demonstrated fellatio to B when she was eight. “The kind of allegations put by B, they are not straightforward, she describes a whole environment, where [Y] sexually abuses her and [C], where she was taught to rub herself, made to wear sexy outfits, where you spoke about having sex from a young age, she has given a detailed picture. How did she know how to say such things? How is a child able to come up with so much detail about her experiences unless they are true?”
Mother: “Under my care this never happened. [B] never told me that this happened.”
Lawyer: “Why would [C] make up that she had sex with men? What is described by [B] is a world where she is prepared for sex at a young age with men, exposure to pornography, she engages in sex with other children, this is the kind of world where children who are sexually abused live. How would she know if it didn’t happen to her?”
Mother: “I don’t believe she has done it. I never showed her any pornographic videos, and never spoke to her about sex.”
The barrister then asked her why she had asked her solicitor about preparing bottles for the baby. The mother said that the social workers had not asked her previously about feeding the baby, they had not allowed her change his clothes, out of nowhere they started asking her to do things with him and she was afraid she would be accused of something.
The barrister said there could be another explanation, that she had allowed her parents to do most of the child-rearing, even though she knew of the risk posed by her father. She had not spoken up about the risk posed by her former husband, Y. “When it comes to caring for children you are not that motivated, and that is why you didn’t want to make the bottles.”
The mother’s lawyer intervened to say that the medical social worker in the maternity hospital had reported she had excellent parenting skills, the mother told her she was providing the baby with bottles there.
Her solicitor asked her if she had told the mother of her partner’s daughter (D) she had been accused of sexual abuse, and she said she had, including that B had walked in on her and her partner having sex. She said she told the girl about it because D already had a boyfriend in her own country when she was 14, and at 17 was living with her boyfriend.
Her barrister then asked her about her understanding of having a criminal conviction, and whether she understood this included a road traffic conviction. The mother said she knew that now, but this was not the case in her own country. When the GAL asked her about criminal convictions, she did not understand this included road traffic convictions.
The barrister for the GAL asked the mother again why she had not told the GAL that there were allegations of sexual abuse against her, and she said: “I told her only about physical, I was too embarrassed to say what [B] had said.”
Guardian ad litem
The guardian ad litem (GAL) told the court she had seen the baby and observed access between him and his mother. She had some concerns about clothes issues and the making of bottles for the baby, but he was very settled on his mother’s knee. The father came to access after work.
In relation to the mother moving while pregnant, she had told the GAL that Tusla was always looking for her and she just wanted to leave the area. She had told the GAL she never had support, the only people she had in Ireland were her parents, they had raised her daughters. They had all gone to live with the parents when the youngest, C, was two months old.
The GAL was concerned that that the mother said what she thought the GAL wanted to hear and not what she really thought about the matter.
Given the seriousness of the concerns, the GAL recommended that there by a credibility assessment as soon as possible.
The GAL said that when assessing risk she did not believe the current access plan was proportionate, access was unsupervised and she had concern about the management of access going forward. It was important to have sibling access, with pictures taken. An attachment expert should be considered whatever order was made, already the four-month-old baby was going between two carers.
The mother’s barrister asked the GAL is she was aware that a person could go to jail for a civil conviction, and she said she was not. The barrister said that her client was not either. Asked if she thought the mother was not motivated was not motivated to care for her children, she said she was concerned she did not offer to make bottles. “It’s a worry that I have. Not a firm belief, but a worry.”
Barrister: “Do you accept that the [maternity hospital] said she had excellent parenting skills. The midwife was overwhelmingly positive, commenting on her emotional warmth and her practical everyday skills.”
The barrister said that the reports on the access were also overwhelmingly positive. “Do you really question her motivation to care for [the baby].”
The GAL said that the mother had made a comment around the parents raising the girls. The judge asked what working mother had not had help raising their children.
The GAL said there was a lack of clarity, she was unclear. “I do not have the information, I am somewhat confused.”
The mother’s barrister said: “The mother is possibly confused. She had given her answers through an interpreter.” The GAL acknowledged that this was a possibility.
The barrister said that one of the reasons a residential unit was unable to take the mother was her level of English. In another unit there was no accommodation. While the mother had not given the third reason, her understanding of risk, she had given the reasons as she understood them, and the GAL acknowledged this may have been the case.
The father’s barrister said that this had been a planned pregnancy, the couple had gone through a lot to get pregnant. The allegations were not against the father. The GAL said that his daughter had made allegations of neglect. She said she was concerned about the sheer level of allegations overall. She was somewhat confused about the level of risk.
Referring to her recommendation that an attachment expert be engaged because the baby was with the parents during the day and the foster carers at night, the lawyer said that it many children found themselves in a similar situation, being minded by a child-minder or creche during the day and their parents at night. The GAL agreed, but added that there was a huge level of access at the moment.
Asked by her barrister if she had reasonable grounds for concern, the GAL said she did, due to the number of allegations, the number of children making allegations, the markers. The mother minimised the concerns.
Legal submissions
The barrister for the CFA said that the wording of Section 17 of the Child Care Act, providing for an interim care order, was important. The court did not have to be certain or satisfied on the balance of probabilities that a child would be subject to neglect, but that there was reasonable cause to believe that this could occur.
The mother had exhibited a failure to protect her children in allowing her father to care for her children and in refusing to believe he posed a risk despite his conviction for child sex abuse. No explanation had been provided as to why multiple children have made similar allegations about physical and sexual abuse.
“The fundamental difference between being satisfied risk exists and having reasonable cause to believe is that harm is likely. The child’s best interest is presumptive to be with the parents. Child protection is about risk management. It is always a question of balance and proportionality. The CFA been conscious that the action taken in respect of [F] has been proportionate, conscious that he is a newborn. The CFA has been facilitating first six days of access, then five days of access.”
The CFA had not been able to engage with the mother in a meaningful manner. An interim care order was necessary and proportionate in order to protect F.
The mother’s barrister said that there had been some translation difficulties. She was not the clearest in any language, but this was not the only witness this had happened to. When asked whether sexual abuse had taken place she did not grasp the nuance of the question. Her answer was that she could not fathom how there was a basis for concern.
It was not uncommon for grandparents to step in to help care for children. The allegations of the father’s children had been untested. The maternity hospital and the access reports had all reported that the mother was doting on the baby. There were untested allegations, and the risk could be managed. The CFA had to prove they had considered everything else before removing a four-month-old baby.
Referring to the GAL’s recommendation that access be reduced, she asked what was the reality of this child being returned to his parents if the allegations were found to be unfounded. The damage could not be undone. She was asking the court to direct the CFA to carry out a residential assessment, it might have to be creative with 24-hour care staff. The concerns of the CFA could be managed.
The father’s barrister said that her client was open to supervision. The court could make an interim care order with a residential placement. “Just because they are not available should not mean that this family should be disadvantaged because the CFA rely upon the private sector to comply with their statutory duties.”
The court was being asked to make an interim care order in circumstances where the CFA had emphasised that the child protection arose on foot of past harm. That past harm arose in large part because of allegations made by other children who were not a party to these proceedings. The allegations were before the court as hearsay, not tested before the court, not questioned, their veracity was not challenged.
She stressed that under Article 8 of the European Convention on Human Rights, protecting private and family life, intervention must be necessary and proportionate. This was a particular requirement when dealing with a newborn baby.
The barrister for the GAL said the test for an interim care order was likelihood. Here the possible harm was so catastrophic that even a likelihood of it is enough. “The more serious the harm the less likely it has to be. The less serious the harm the more likely it has to be.”
He quoted the account given by B of an assault by her mother. “That is a risk no residential unit should be asked to manage. No residential unit in this country has agreed to manage [such a risk]. It’s not as if she hasn’t had a chance to parent. She had a chance to parent her three children. Two of them refuse to speak to her. When asked what they are maintaining against her she can’t say, but she can say ‘they are not my daughters’.”
What B had said had not been assessed but we knew a lot of what she said was true, she said she contacted the guards and that was true. B gave detailed description of being groomed, to rub themselves off teddy bears, to watch pornography, she didn’t walk in on her mother having sex but her mother called out to her to come in. This was a symptom of no boundaries. There had been much ado about the CFA not doing a credibility assessment, but there had been a Garda investigation, and this was now with the DPP
The barrister conceded that the court could direct a residential assessment, but he was concerned about a residential assessment that can handle this risk. The threshold for this baby was that there was reasonable cause to believe he was risk.
The mother had continuously not told the truth outside of the court setting. She had evaded the CFA and refused to engage with the CFA, giving rise to the risk of current harm. The lack of insight was a very important factor when assessing the level of risk.
At a further hearing the court heard that the mother was no longer being represented by her team from a law centre and was now instructing new lawyers. The court also heard she had been arrested and held overnight on two counts of ill treatment and two counts of neglect and was before another court that day in respect of those charges.
Giving his decision, the judge said the CFA had not acted rashly. No alternative arrangements had been put to the court that would work. The court was satisfied on the totality of the evidence that some of the circumstances identified exist and/or existed and it was necessary for the child’s safety and welfare to be put in the care of the CFA pending the outcome of the care order application.
The court had regard to the ECHR and the European Court of Justice. The court granted the interim care order for a period of 29 days, and the care order application was adjourned to that date. “The CFA shall facilitate access, I would ask as part of the order that the CFA be generous with the mother.” The judge made directions relating to medical and psychiatric assessments. It was still everyone’s obligation to ensure that reunification could be addressed and the mother should receive every support.
The practitioners thanked the court for their time and patience and the judge
thanked the legal representatives for their dedication to representing the parents.
