See follow up Vol 1 of 2019: Father granted permission to reside in the State as the parent of three Irish citizen children in care, CFA considers reunification
See also Vol 2 of 2018: Care order adjourned to allow father to seek legal representation and move to Ireland permanently, mother homeless
The Child and Family Agency (CFA) sought a care order application in respect of three children following a series of interim care orders. Adjourning the hearing the judge directed the CFA to procure the original birth certificate of one of the children, which was missing from the file, and to ascertain the citizenship status of the mother and children as well as the specific reasons why the mother did not attend the proceedings. The judge also directed the CFA to track down the father to inform him of the care proceedings.
The respondent, the mother of the three children, was believed to be in Africa and therefore she was not present in court.
The subjects of the care order application were three children ranging in age from three to 16. The mother had two more grown up children. The judge said that it was “far from ideal” that the mother was not present in court. The solicitor for the CFA told the court that the mother did not attend the last two hearings and that she was believed to be in Africa.
When the judge asked about the citizenship status of the children the CFA replied that it was unknown. The judge said that it was strange that the matter of citizenship had not been investigated and noted: “Although the purpose of the court is to deal with the care of the children it is an important aspect to know what their citizenship status is.”
The solicitor for the CFA said that the issue of citizenship had never been raised before in care proceedings related to these children. One of the social workers said that the children had Personal Public Service (PPS) numbers. The judge said that citizenship status had great significance such as implications for academic fees if the children wanted to avail of third level education.
The judge looked at the children’s birth certificates that were in the file and noted that the birth certificate for the youngest child was missing although she had an American passport. He noted that two of the children were born in the US.
The judge said that it was important to produce the birth certificate of a child when making a care order application because the care order could only be made until the child was eighteen and therefore it was necessary to establish the exact duration of the care order.
One of the social workers said that the mother refused to produce the documents. The judge said that if one of the children had a passport it would have been easy to track the birth certificate with the US authorities. He observed that the birth certificate should have been included in the file because it was key necessary proof of the age of the child.
The solicitor for the CFA said thatthe mother had provided a copy of the passport for the youngest child. The judge asked the CFA if the original passport had been certified to ensure that it was a legitimate document. The solicitor for the CFA said that the local authority took the photocopy from the original passport and that the mother had confirmed the exact place of birth of the child.
The judge said that there was a problem because the care order application was based on evidence that had not been corroborated and added: “In every child care case it is the starting point that the birth certificate is provided to the court.”
He noted that the father’s name was in the passport and asked whether the CFA had tried to track down and contact the father. The CFA Solicitor answered that the father had left for Africa in 2014 and that he did not know about the care order application.
The judge said that there were two problems: it was uncertain when the child was born – because the CFA was never in possession of the original passport or birth certificate – and that nobody had tried to make contact with the father. She said it would have been possible to try to communicate with the father to inform him that his children had been taken into care because his name was on the two birth certificates included in the CFA file.
The judge asked if the parents were married. The CFA solicitor answered that it was believed that the parents were married but that a copy of the marriage certificate was not available. The judge noted that the whole thing was rather strange as there were a “lot of missing pieces”. He said that it was not unreasonable to expect the CFA to provide resources in child care law cases to track relevant individuals. He added that the care order application related to children and that the parents of those children had to be notified.
One of the social workers told the court that he had a conversation with the father’s two adult children who said that the relationship with the father had broken down. The judge observed that contacting the two adult children was valid from a social work point of view but not from a legal point of view and added: “Lawyers see the world in black and white while social workers see it in grey.”
The judge said that the rule of evidence was one of the most complicated areas in law and that there was a reason for it adding: “The rule against hearsay applies in this court.” He pointed out that the social worker had not contacted the father directly, that it was unknown what exactly was said about the father, that the father did not have an opportunity to respond to something that was said about him and that the father was entitled to come to court to give his own account. He told the parties that there were other legal imperatives in the framework of constitutional law and international law such as the European Convention of Human Rights and the EU Charter of Fundamental Rights.
When the CFA solicitor said that this had not been an issue in prior proceedings related to the children, the judge questioned how the court could get involved in such an important matter for the children when the father had not been updated about the situation.
He noted that the statement of facts related to the mother contained suggestions of mental health issues yet the CFA witness list did not include any psychiatrist or psychologist for the mother. The social worker said that the mother did not engage with the services and although a GP referred her for a psychiatric assessment she did not attend.
The judge asked the GAL whether the eldest child had expressed any wish to attend the court. The GAL told the court that the eldest child made it very clear that she would like to attend the court. The GAL said that this child, who was on her third placement, was having difficulties settling in foster care due to her mother´s influence. The GAL told the court that although the eldest child had not been in school for several years, she got a pass in her English essay. The judge asked the CFA if this child had been formally assessed in school. The social worker said that the assessment showed that the child could manage with extra support.
The GAL told the court that she had suggested to the second child that he write a letter to the court. She said the child did not want to remain in care because his mother would be deprived of his company and the company of his siblings.
The judge said that it was concerning that the parents had not engaged in the process and, although it was in the best interest of the children that the case moved forward, it had to be done in the proper legal framework. He commented: “It seems to me that there are fundamental things that have not been done for a care court order.”
Following a brief adjournment, the barrister for the GAL told the court that the mother had been involved in prior care proceedings for her children. The solicitor for the CFA said that the mother knew about the current proceedings. One of the social workers told the court that the mother had returned to the African country where she was getting support from her church. The social worker told the court that she believed that the mother had Irish citizenship but that if she came back to Ireland she would become homeless and unable to return back to her country where she had support.
The judge said that he needed to know what information the mother has been given and the specific reason why she had not return to Ireland to attend the current proceedings, whether it was because of issues with her citizenship status, economic factors or a strategy to cause difficulties to the court. He observed that the CFA report referred to long term homelessness, lack of support and the mother´s lack of engagement with services but medical evidence regarding her mental health appeared absent.
The judge repeated that it was absolutely essential that the father be located and informed of the situation. He asked for the birth certificate of the youngest child as well as information regarding the citizenship status of the three children and further evidence of the education needs of the eldest child.
The judge said that the findings of fact of the interim care orders were quite serious. When he asked whether findings that the children´s medical and education needs were neglected had been contested, the CFA solicitor replied that they had not.
The judge said that interim care orders were stand-alone hearings that took into account the circumstances at a particular time and that each extension of an interim care order was in fact a new case each time. As this was a care order application, the judge said that at the next court sitting it would be necessary to ascertain whether he was bound by the existing findings of fact or it was necessary to prove those facts.
The CFA solicitor told the court that the current interim care order for the children would expire in three days. The judge said that if the CFA had difficulties in serving the summons to the parents, an ex parteapplication would be necessary. He asked the GAL and the social worker to decide whether the eldest child could come to court. The GAL told the court that the eldest child would appreciate that her parents were respected.
The care order application was adjourned to address the concerns of the court.
