A judge in a rural town granted an interim care order for a very young infant even though the mother was not in court, had no legal representation and had not been informed of the application because her psychiatrist was concerned about its impact on her mental health. The child was in care under an emergency care order at the time of the interim care order hearing.
A week prior to the granting of the interim care order (ICO), the Child and Family Agency (CFA) had made an application for an ICO before a different judge in the same court. That judge refused to hear the application as the CFA had not informed the mother of the application.
At the second ICO hearing, the mother was not in court and there was no legal representation on her behalf. The father was in court and was represented by a barrister and a solicitor. The solicitor for the CFA said that they had issued the papers to bring the application the day before. They had tried to serve the mother but had been advised by the mother’s treating psychiatrist not to tell her of the application because of her current health status. He said the mother had been admitted to hospital on a voluntary basis as her mental health had significantly deteriorated. She was erratic, had a very low mood, and was reported to be psychotic. The solicitor said the social workers had been advised not to tell the mother about the application as the psychiatrist was worried knowledge of the application would cause an even further significant deterioration in the mother’s already fragile health.
The barrister for the father said it was not possible for the application to go ahead as the application was not properly before the court. She said that the mother had to be put on notice of the application and be informed of it. She said fair procedures had to be applied. The mother was entitled to put her side before the court and be heard. The barrister said: “The best interests of the child [does not give] a carte blanche for the CFA to apply for any application they want.”
The solicitor for the CFA responded that the social worker had wanted to serve the mother with notice of the application but had been told by the consultant psychiatrist not to. He said that the best interests of the child were the paramount consideration of the court and if there was a conflict between the rights of the child and the rights of the parents, the rights of the child took precedent.
The first judge said she would not hear the application. She said the CFA had other avenues and powers open to them to ensure the safety and wellbeing of the infant. The judge said she could not hear an application to remove a child where a mother had not been told of that application. She further stated there was no evidence before the court from the mother’s doctors, it was all hearsay. The CFA had other forms of redress to guarantee the child’s wellbeing and the mother’s constitutional rights.
A week later another judge heard the matter. The court heard that when the infant was born it had been arranged for the mother, father, and the infant to go to a residential mother and baby unit. Unfortunately, the mother had become very mentally unwell and was admitted to hospital as a voluntary patient. Since the mother’s admission to hospital, the child had been cared for by his father who was supported by his father, the infant’s paternal grandfather.
The social worker had been concerned for the health and wellbeing of the infant prior to the mother’s admission to hospital. After the mother’s admission the concerns of the social worker had magnified and increased. The social worker’s concerns were so great that he instructed solicitors for the Child and Family Agency (CFA) to apply for and were granted an emergency care order.
An emergency care order is granted under section 13 of the Child Care Act 1991. It permits the CFA to remove a child from the care of their parents or those acting in the place of parents and take a child into the care of the CFA for up to eight days. According to the 1991 Act and District Court Rules, (Order 84 Rule 5) the parents or persons acting in the place of parents should be told of the application, but in certain circumstances where a judge is satisfied that the urgency of the matter so requires, an application for an emergency care order may be ex parte, that is, without informing the parents.
An emergency care order only lasts for a maximum of eight days. During these eight days, the CFA must make arrangements for the care of the child. Prior to or before the eighth day the child must be either returned to their parents, or the CFA must apply for a supervision order or an interim care order.
The social worker had said it had not been possible to return the infant to care of his father alone and as the emergency care order would expire, he had sought an interim care order. The application for an interim care order must be made on notice to the parents so that they can instruct legal representation or represent themselves.
The solicitor for the CFA told the court that they had been asked by the mother’s treating consultant psychiatrist not to inform the mother of their application because of her mental health and the CFA had complied with this request. The court had received a report from the mother’s consultant psychiatrist.
As the mother had not been informed of the application, she was not in court and there was no representation on her behalf. The father was represented by a solicitor and barrister. The in-camera rule was lifted to permit the infant’s paternal grandfather to be present in court.
Evidence was heard from the social worker and the social care worker and the author of a parenting capacity assessment gave evidence via a Zoom link. The infant had been appointed a guardian ad litem (GAL) at the hearing of an emergency care order application three days before. The GAL was not present in court but was represented by a solicitor who told the court the GAL was supporting the application.
The father’s barrister stated that it was not appropriate for this application to go ahead in the absence of the mother and/or legal representation on her behalf. She said the court had to make a determination under Section 17 of the Child Care Act 1991 which stated: “An application for an interim care order or for an extension of such an order shall be made on notice to a parent having custody of the child or to a person acting in loco parentis except where, having regard to the interests of justice or the welfare of the child, the justice otherwise directs.”
The solicitor for the CFA stated they had been in touch with the mother’s consultant psychiatrist who had stated the mother’s mental health was very fragile. The mother was currently in voluntary care in a psychiatric ward in a local hospital. The psychiatrist asked the CFA that she not be informed of the application as he feared the effect the knowledge of the application would have on her mental wellbeing.
The psychiatrist had furnished a report to the court, but this had not been shared with the CFA or with the father’s legal team. The judge said that she had read the report and given the concerns expressed in it she was happy for the application to go ahead in the mother’s absence.
The judge said that the psychiatrist had known the mother for some time. She had been admitted to an acute psychiatric ward on a voluntary basis. The judge said she was guided by the concerns outlined in the psychiatrist’s report of the damage that would be caused to the mother if she was informed of these proceedings. The judge said she had to balance the best interests of the child against the mother’s entitlement to legal representation and to present her case to the court, all of which was in the context of the mother’s current ill health. In the circumstances she could not contradict the psychiatrist’s report and the damage that might be done, but she also had to vindicate the best interests of the infant, and for those reasons she would hear the application of the CFA for an interim care order.
Evidence of the social worker
The social worker said that he had been informed of the infant prenatally by the child protection notification team in the maternity unit of the local hospital. The parents’ other child was in the care of the CFA and was the subject of an interim care order. This child had been placed in general foster care. A parenting capacity assessment has been completed in relation to this first child of the parents, which had stated the parents did not have capacity to parent the child. As a result of that assessment and the concerns the social worker had in relation to issues of domestic violence, the social worker had organised a six-month placement in a residential mother and baby unit where the father would also be permitted to reside. This was done to enable the parents to have the best possible opportunity to care for the child.
The social worker had worked with the parents to create a safety plan and safety network. A substantial package of care had been organised from the time of birth and discharge from the maternity ward until the parents could be admitted to the mother and baby unit. Following discharge from the maternity unit, the family lived with the infant’s paternal grandfather. The package of care to support the parents had included a social care support worker and a safety network of four to five people who had been identified by the parents as able to support and help them.
Those who had been identified to be part of the safety network had not been able to fulfil this role for various reasons. The social worker stressed that this was not because of the parents. People who had said they could offer support and guidance had moved or family issues had arisen.
It was in this initial neonatal period that the mother became more unwell and paranoid. The mother’s health deteriorated and she was admitted to hospital. The social worker said the package of professional support was significantly increased to support and enable the father to care for the infant while the mother was in hospital, including family support workers who attended at the family home daily and increased visits from the social workers and from the public health nurse (PHN).
The social worker said after a visit he was contacted by the PHN, who expressed her concerns over the father’s paranoia. The nurse had said the father was overly focused on his relationship with the mother and not on the infant. The father was advised to attend the emergency department for an assessment of his own mental health, which he did, but he was not admitted.
The paternal grandfather had offered support, guidance and practical help with the newborn infant. However, after the mother’s admission to hospital, leading to the father’s deterioration, he [the paternal grandfather] had taken on the role of caring for the newborn infant and his son. The social worker said the paternal grandfather was elderly and had become very tired. The relationship between the grandfather and his son had deteriorated. It was as a result of all these factors that he had sought the emergency care order which had been granted.
The social worker said his concerns arose over the father’s ability to care for the infant by himself without the mother. There could not have been more care or professional help given to the father. From the parenting capacity assessment, the father had a low intelligent quotient (IQ), had borderline to mild intellectual difficulties, mental health difficulties, and schizoid features.
On the last visit, which prompted the application for the emergency care order, the father had been holding the infant in his arms and neither he nor the paternal grandfather had noticed that the infant had become distressed and was having difficulty breathing because of the way he was being held. He said that he had had to intervene.
The social worker said after the mother had given birth to her first child she had had mental health difficulties. It had taken the mother three months to return to her baseline. There was a robust safety plan in place for both parents to care for the infant. However, as the mother’s health deteriorated the plan fell apart and the father struggled to care for the infant by himself.
He said the CFA had done their utmost to keep the infant at home with his father but it just not possible to offer the support he required.
The father’s barrister said the father was willing to do whatever was required by the CFA. She said there was no substance abuse and the parents had engaged with all ante-natal care. They had prepared appropriately for the arrival of the infant. The barrister said that this was only a point in time and the father was capable if he had the appropriate supports. The social worker responded that the parents did have many positives, they were both motivated and when they were well it was hoped that they would be able to care for the infant, but that he had to deal with the present moment. The mother was very unwell, and the father was not coping without her.
The father had not coped even with all the supports that the CFA had offered. The father’s barrister asked why the father had not been allowed to go the mother and baby unit. The social worker replied that the placement was for the whole family. He said he had asked if the father could attend alone, and the mother join when she was better but the unit had refused.
The social worker again repeated that the safety network had collapsed through no fault of the parents. A safety network was needed. The family had not coped with the supports from CFA alone. The CFA could not provide the 24 hour care and support the father needed. The father’s barrister said: “All steps have not been taken; further people could be sought to step into the safety network.”
The social worker replied: “No, I believe all steps have been taken, for the first few days professional support given to the family was significantly increased but it is just not possible to keep up that level of support, we do not have the facilities to provide care 24 hours per day, seven days per week.” The social worker said that the paternal grandfather tired easily and his age was against him.
He said that anyone would struggle to care for a newborn infant, but the paternal grandfather also had had to care for his son, the infant’s father. The father’s barrister said the grandfather had particular significant experience caring for children including young children. The social worker acknowledged this but said it had been many years ago when he was much younger.
He said the paternal grandfather had been assessed as a foster carer but there had been issues about honesty, and this had led to that assessment being curtailed. The social worker said that the paternal grandfather was a very good support, but the CFA could not ensure the safety and wellbeing of the infant in the grandfather’s care.
The social worker said that he had also been concerned about the comments that had been made by the father. The social worker said: “On my last visit to the family home the father said: ‘I will not be responsible for what will happen’.” This had caused the social worker grave and serious concerns about the safety and wellbeing of the infant. From that visit he had sought the court’s intervention to remove the infant.
The social worker said that the father had had access with the infant since the emergency care order and the access had gone well.
Evidence of the social care worker
The social care worker said that she had been working with the family since the birth of the infant. She had visited the family two or three times per week. She said initially the parents had managed well but about 10 days after the discharge from hospital there appeared to be stressors in the family and the mother’s health started to deteriorate. The mother had started to become agitated and paranoid. This increased and in association with the PHN the mother was referred to the mental health team. From this referral she was admitted to hospital.
She said she continued her visits, but each time the father’s focus remained on the mother, on his relationship with the mother and not on the infant. She said she had to constantly remind him to care for the infant and attend to the infant’s needs. She said the paternal grandfather was a significant help but over the days she saw that he had become increasingly tired as he had to care for the newborn infant and his son. She said her assessment was the paternal grandfather was undertaking all the care of the infant, although the grandfather had said he was doing the night-time care only.
On some visits the father had not attended to the infant at all, he had just sat there. She said that while the parents had great intentions and would take direction, they had also been reluctant to accept help. The parents had wanted to do everything themselves. She said that she did not believe the parents would intentionally harm the infant, but she thought they would forget or neglect the infant.
Other evidence
The GAL was not in court but the solicitor on her behalf stated the GAL was supportive of the application. The GAL’s solicitor said the infant had some health concerns, was colicky and had some eczema. He said the GAL was supportive of the application because of the needs of the infant and the difficulties of the parents at this time.
The father did not give evidence but was asked by the judge about his own mental health difficulties. The father said that he had an upcoming appointment, and he took regular medication. The father said that he thought the mother had improved and hoped that she would soon be discharged.
The judge also spoke to the paternal grandfather. The grandfather said that his son cared for the infant during the day, and he did the night-time only. He said he had raised all his children by himself and had experience of young children. He was very fit and had no ill health. He said he was at home all day and was always there with his son. He said he had not witnessed the incident which the social worker had referred to when the baby was in his father’s arms and started to struggle as he was in the kitchen.
Evidence of the parenting capacity assessor
The parenting capacity assessor gave evidence via video link. The assessor said that he had completed the parenting capacity assessment in 2023 for the couple’s older child in relation to an application for a section 18 care order, he stressed the assessment was not related to this infant.
He said that the father had compromised parenting skills and a schizoid affective disorder, meaning that in stressful scenarios he resorted to alcohol use and violence. He said the father was dependent on the mother. He said both parents had low IQ’s scores. The father was in the borderline intellectual disability range and the mother was in the mild to moderate learning disability range.
This was challenged by the father’s barrister who said he is in either in the mild learning disability range or he is not. The assessor said it was not quite that simple. Any IQ score can have a 10 percent variance and so his IQ could be 10 percent higher or lower than his actual score. The father’s score was on the borderline. The father’s skills were at the lowest end of the normal scale. The father had significant cognitive difficulties and needed direction for most tasks. He had not been able to complete the adaptive part of the assessment because of his cognitive difficulties. He had little initiative: “The father cannot step up to the plate, so to speak.” He heavily relied on the mother for direction and guidance.
He said that while the father scored higher on the IQ score, he lacked adaptive skills. The mother had scored lower on the IQ score but had adaptive skills and was able to complete tasks. The father was more reliant on the mother because of his lack of adaptive skills. The judge said: “So they support each other, they need each other to function.” The assessor replied yes. He said that in his opinion neither parent would be able to parent alone or together. It was not a criticism of either of them but they each lacked skills and even combined they did not have the requisite skills that would be necessary to parent a child.
Submissions
The barrister for the father said that the CFA had not exhausted all options, as they acknowledged the safety network had dissolved. The CFA had done nothing to secure a new safety network for the family. She said the family were amenable to a supervision order and the social workers could visit daily, there could be checks from An Garda Síochána. She said it was the right of the child to be parented by his parents and taking the application as a whole the threshold had not been met.
The solicitor for the CFA said that an interim care order can be granted where there is reasonable cause to believe that the child will come to harm. He said that it was accepted that the safety network dissolved through no fault of the parents, but they had not been able to set up a new one. He said the safety network was not only the obligation of the CFA but also of the parents.
The mother had significant mental health issues which required her hospitalisation. The social worker and the CFA had provided as much professional support as they could, and it was not enough. He said this situation had arisen because of a crisis and that was the situation they had to deal with. He said an interim care order can only be made for 28 days unless the parents consent to a longer period and as the mother could not give that consent the order would only be for 28 days. He said when this next came before the court it might be a very different scenario.
Decision
The judge said she had heard the evidence. She said the mother needed stability to recover and the father needed assistance with his mental health also. She said there was reasonable cause to believe the infant might come to harm and for those reasons she granted an interim care order for 28 days. She directed the CFA to ensure that the infant had regular access with his father and paternal grandfather.
