A judge in a rural court considered placing an older primary school aged boy (A), who had very serious special needs, in a residential placement when his supervision order expired. The parents, who also had two other children, (B and C) were finding it impossible to parent A and also meet the needs of their other children.
Due to the seriousness of the difficulties with the family dynamics, the Child and Family Agency (CFA) had obtained a supervision order so that they could have oversight of the problem. All the parties stressed that this was a problem with the parental capacity regarding A’s unique needs and this was not a child protection problem. The Health Service Executive (HSE) was a notice party to the case and was represented.
The judge began by complimenting the social worker for the excellence of her report and explained that the HSE was a notice party in the matter. A’s social worker told the judge that there was a safety issue regarding the locking of A’s bedroom door at night by his parents. The judge asked if this was a misguided attempt at safety and the lawyer for the CFA said A’s parents were fully co-operating with them.
The lawyer for the HSE informed the court that the child did not meet the criteria for a residential placement. However, the parental capacity to manage A was the real issue and the family dynamics in the home were a cause of difficulty.
Judge: “The child with the disability shouldn’t be ‘othered’ from normal childhood life.”
The judge stated that he was concerned that the problem in this case was due to the personalities of the parents and their ability to meet the needs of all three of their children. He suggested they may be better able to parent A’s two siblings if A was not there.
The lawyer for the HSE said that the issue was how A’s welfare would be promoted if he were to leave the family home on the basis it was not in his best interests to remain at home. The difficulty was that the potential residential placement was three hours away from the family home. The judge outlined his concern and the need to be mindful of the UN Convention on the Rights of the Child, the European Convention on Human Rights and the Irish Constitution.
The parents’ solicitor read a letter from the parents to the court. They said that ongoing staffing issues in the disability service for A were causing problems for his home support. There was a shortage of staff and a regular difficulty with staff members ringing in sick. The parents were keen to find out what their next step should be.
The lawyer for the guardian ad litem (GAL) asked the GAL how she got on with A’s parents and she replied that the parents felt threatened by professionals. She said they acknowledged mistakes they had made but were exhausted from lack of sleep and worry about what the future would hold for their son. She stated that she was of the opinion that residential care would offer the best option for A at this time. There had been a hope and expectation that A’s extended family might assist but this had not materialised.
The second child, B, was negatively affected by A as he was being “passively neglected”. C had to hide whenever A came into the house as her speaking voice and her games irritated him.
The lawyer asked the GAL her opinion regarding the judge’s concern for A’s rights as a child. She replied that she was not concerned about the potential long distance between a residential placement and the boy’s home.
GAL: “[A’s parents] won’t just abandon him. They are very committed to him. This is not a child protection issue, it is a disability issue.”
The GAL said that B’s school report was very good and that he enjoyed the weekends when A was in respite care. The GAL’s lawyer asked her if she would welcome the identification of a suitable residential placement prior to the expiration of the supervision order. The lawyer for the HSE asked the GAL if there was a need for a residential placement. The GAL replied that the need for a residential placement was not because of A’s level of disability but rather it was because of the problem with the parents’ capacity to meet the needs of their other two children while parenting A.
Judge: “Could it be argued that the child’s needs are not being met and ergo it is a child protection problem. Is the parents’ best not good enough? Child protection is gone away from vilification of parents?”
HSE lawyer: “The main thing is to protect [A’s] welfare and needs.”
The GAL stated that she was of the opinion that A would thrive in a suitable placement, where he would have regular daily routine. The judge said that the current 1991 Child Care Act was “not fit for purpose”.
The HSE lawyer informed the judge that if A were placed in a residential placement he would only have disability workers involved in his care and would lose the oversight of the court. The judge stated that he needed to be mindful that the 1991 Child Care Act was not the only consideration; there was also the Irish Constitution and this was highlighted in the recent Supreme Court case of In the Matter of J.J. [2021] IESC 1.
The judge said that there was a wealth of experience among the professionals in the court. Everyone present was of the opinion that the current situation was not the best for A or his siblings. The supervision order was due to expire within six weeks and a plan was needed. He directed the lifting of the in-camera rule to allow for the sharing of the reports among the relevant professionals involved in A’s care. The judge listed the matter for further consideration on a date four weeks later.
When the matter returned before the court at a later date, the supervision order for A had expired. A residential placement had not been secured for him and he continued to reside at home with his family.
