Summary
A court has made a full Care Order for a young child whose father had been about to sexually abuse her on an internet webcam. The father had been in contact through an internet chat room with a person whom he believed shared his interest in sexual activity with infants, but the person he was conversing with was an undercover police officer in another jurisdiction.
When he told the undercover police officer that his wife was out shopping and that he would abuse his daughter live on webcam the police contacted the Garda Siochana, who arrested him and took the child into care under Section 12 of the Child Care Act. The child was placed with foster carers under an Interim Care Order. The mother opposed the Care Order application. The father left the jurisdiction following his arrest and played no part in the proceedings.
(A full report of the evidence given in the course of the first 20 days of the hearing was previously published on this website and can be found in Vol 2 of 2014, case number 4 headlined “Care Order sought after father offered on line to abuse his child”).
The court heard evidence over a 15 month period for a total of 23 days and the judge, in his reserved written judgment, said the court was satisfied that the child’s mother continued to have contact with her husband, the child’s father, despite her denials when she was giving evidence. She had told the court that she would consent to a Barring Order being made against him and said she would call the police if he turned up at her home. Both parents are from another jurisdiction and are no longer living in Ireland and, in the final days of the hearing when it was reconvened, evidence was given that the mother had continued contact with her husband in the other jurisdiction.
During the Care Order hearing, the court heard that the father had first met the child’s mother in the other jurisdiction when she was 13 or 14 years old, and had embarked on a sexual relationship with her when she was 16. He was 12 years older than she was and ran a business that brought him into contact with young people. She became pregnant when she was 17 and gave birth to the child when she was 18.
The CFA case centred on the belief that the mother had been groomed by the father as a child, was under his influence and therefore could not guarantee the child’s safety if she was returned to her. The court heard evidence of the mother showing photos of the father to the child at access and asking her to kiss them.
There were also allegations that the child had already been abused by the father, and that the mother was aware of this and may have participated in the abuse. This was strongly denied by the mother, who said during the trial she accepted that the father was responsible for child pornography on his computer and had possibly abused their child.
Both the social worker and the guardian ad litem suggested that the mother was reminding the child of abuse at access.
The judge described it as “a very complex case involving serious matters including allegations of the most serious nature. Some of the evidence heard was most disturbing and upsetting,” he said.
At the end of the evidence and legal submissions in the case, the judge decided he was unable to make a final determination of the case and he made an Order under Section 27 of the Child Care Act to procure an independent report and forensic assessment from a psychologist with expertise and experience of dealing with children having regard to alleged “disclosures” concerning the parents.
These were made by the child to the foster carer relating to the parents and he asked the psychologist to advise as to what significance the court should attach, if any, to these having regard to the age of the child and further to advise, if necessary, as to what therapeutic supports or interventions would need to be put in place for the child.
When the report was received the case was relisted for hearing for a further three days during which the psychologist gave evidence as did two witnesses from the country in which the parents of the child now reside. The court then reserved its judgment.
When the judge delivered it four weeks later he said he was not satisfied to the level of proof necessary that the child had been abused or that the mother was aware of such abuse, if it existed. However, he was satisfied that the child’s welfare was likely to be avoidably impaired in the future, and that the mother would not be a protective factor as she continued to have contact with the father. He granted a full Care Order till 18 on this ground.
The judgement
The Law
The Child and Family Agency (CFA) made their application for a Care Order under the provisions of Section 18 of the Child Care Act 1991.
Section 18 (1) of the Child Care Act 1991 provides
“Where, on the application of the Child and Family Agency with respect to a child who resides or is found in its area, the court is satisfied that-
(a) The child has been or is being assaulted, ill-treated, or neglected or sexually abused or
(b) The child’s health, development or welfare has been or is being avoidably impaired or neglected or
(c) The child’s health, development or welfare is likely to be avoidably impaired or neglected
“And that the child requires care or protection which he is unlikely to receive unless the court makes an order under this section, the court may make an order (in this Act referred to as a ‘care order’) in respect of the child.”
The judge referred to Section 24 which states that the court shall “having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall regard the welfare of the child as the first and paramount consideration, and in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.”
The judge said it was clear from the legal authorities that in order to exercise its jurisdiction to take the child into care, the court must be satisfied on the evidence that there were compelling reasons that the welfare of the child could not be found within the family, or that the Court was satisfied that the evidence established an exceptional case where the parents had failed to provide education for the child or had failed in their duty to cater for the other personal rights of the child for moral or physical reasons.
“The child has certain personal constitutional rights which must be vindicated by the State under the provisions of the Constitution. However the fact that a parent is guilty of a grave moral lack of duty does not mean in every case that the child must be taken into some form of care applying the principle of proportionality,” he said. “Care Order Proceedings are civil in nature. The standard of proof applicable to these proceedings is the civil standard of the balance of probabilities. Findings are on the basis of proved facts.”
The Application
The judge continued: “The Notice of Application for a care order is dated the 12th day of December 2012 and seeks a care order under section 18 on the basis that ‘the Applicant believes that the child’s welfare has been or is being avoidably impaired or neglected and the child’s welfare is likely to be avoidably impaired or neglected and that the child requires care or protection which she is unlikely to receive unless the court makes the order under Section 18 of the aforementioned Act’.
“This Notice of Application was served on both respondents in this case. No application was made during the hearing to amend the Notice of Application. While the Court is to regard the welfare of the child as the first and paramount consideration, the care proceedings are inquisitorial and the Child Care Act 1991 is to be interpreted in a purposive manner. Section 18 provides that it is for the Child and Family Agency to make the application. Order 84 of the District Court Rules provides for the procedures to be applied and the prescribed forms to be used for an application under Section 18.The relevant Form is Form 84.15 which requires the deletion of words that are not applicable. It is a matter for the Child and Family Agency in complying with its statutory duty under Section 16 of the 1991 Act to ensure that the Application which is served on the parties sets out the grounds under Section 18 on which it is seeking a care order. The Child and Family Agency have the sole statutory entitlement to institute Care Order proceedings.
“From a reading of Section 18 of the 1991 Act the application to the court on the basis of this notice application dated 12th December 2012 is under section 18 (b) and (c) on the welfare ground only.
“‘Welfare’ is not defined in the Child Care Act 1991. Section 3 of the Guardianship of Infants Act 1964 is a similar provision and in section 2 of this Act welfare of the child is defined as ‘the religious and moral, intellectual, physical and social welfare of the child.’ Article 42.1 of the Constitution of Ireland refers to ‘the inalienable right and duty of parents to provide for the religious and moral, intellectual, physical and social education of their children.’ Therefore references to welfare in the Child Care Act 1991 are to be construed in these terms.”
The judge said the CFA, in its closing submissions, asserted that there was substantial evidence upon which a finding could be made that the parents had failed in their duty towards their daughter and that the evidence gave very strong support to a finding of 4 distinct failures:
1. Medical neglect.
2. Emotional abuse.
3. Past sexual abuse.
4. The risk of future sexual abuse.
Medical Neglect
The child had been born with a number of serious medical complaints and the judge said this would have presented a serious challenge for any care giver to meet her needs. Of concern to the court however was the number of appointments that were missed during a period of 16 months. Evidence was also given of the strained relationship which the parents had with the consultant paediatrician for the child. Further evidence was given of the failure by the parents to keep food diaries for the child. Evidence was given of the child’s weight when she came into care and the increase in that weight after she came into care. There was evidence of missed physiotherapy appointments and speech and language appointments. Of particular concern, the judge said, was the failure of the parents to meet the appointment for a specific test in July 2012 which was an important prerequisite for the determination of the change in the diet of the child. The child was brought to appointment in October 2012 as a result of which dietary changes were recommended.
“While these are matters of concern the court finds the evidence presented does not meet the threshold standard that the child’s welfare had been avoidably impaired or neglected by her parents, the respondents, as provided for under Section 18(1)(b) of the 1991 Act. The Health Service Executive through its various agencies and services was aware of the number of appointments being missed over the 16 month period but this did not raise child protection concerns at that time. Through the failure of proper coordination, a number of appointments were missed when the child came into care which would be the responsibility of the applicant.”
Emotional Abuse
The judge referred to “considerable evidence” given to the court as to the child’s presentation with strangers including her presentation at the time of the search of the family home and when she attended for Garda interviews. He continued: “Evidence was given in relation to observations of lack of attachment between the mother and the child. Evidence was also given as to the mother and child’s presentation at access. There was conflicting evidence presented the court in relation to the child’s social presentation at medical appointments. The child made statements to the foster carer. While these are matters of concern the court finds the evidence presented does not meet the threshold standard that the child’s welfare had been avoidably impaired or neglected by her parents, the respondents, as provided for under Section 18(1)(b) of the 1991 Act.”
Past Sexual Abuse
The court said it noted the findings of the clinical psychologist that the various observations and comments made by the child did not of themselves point to sexual abuse although they gave rise to other serious concerns. The Court noted the transcript of the chat logs that the father stated that he previously abused a child and that the forensic psychologist, having heard the transcript of the child log, give evidence that the father had almost certainly previously sexually abused the child to whom he was referring on the chat log. The court also noted what was stated by the social work specialist with regard to disclosures and the necessity for a safe, protective and secure environment conducive to facilitating possible further disclosures. The Court noted that a physical examination of the child was normal.
Based on the evidence presented to the court, the judge said he was unable to make a finding, on the balance of probabilities, that the child had been sexually abused. The court was therefore declining to make a finding of fact that the child had been sexually abused in the past by her father or other persons. Further it would not be in the best interests or welfare of the child to make such a finding at this time in the absence of further disclosures by the child, additional evidence or admissions being made.
However it would be prudent to proceed in the future on the basis that the child may have been sexually abused in considering what appropriate therapeutic supports and measures should be made available for the child and to ensure that the child’s emotional and psychological well-being and development were kept under regular review with this in mind.
Findings
The court found that it would not be appropriate on the evidence presented to the court to make a care order under the provisions of section 18(1) (b) of the 1991 Act in accordance with the application made by the Child and Family Agency on the basis of the evidence presented.
Decision on S 18(1)(b)
The Father
The judge said that, having heard the evidence in the case, the court was making the following findings of fact which were set out in narrative form which were relevant in reaching its final decision:-
In December 2012 the father communicated online with an undercover police officer in another country and stated that he was intending to sexually abuse his three-year-old daughter, record this and post the incident online. He stated that his wife was at the shop at the time. The child referred to in the chat log was the subject of these legal proceedings. The IP address used for the online communication was a static address which was traced to the address of the father who was residing at this address with his wife and their child. This static IP had been used by the father on a previous occasion to engage in similar chat with an undercover police officer in the other country where he discussed his fantasy of sexually abusing a very young child.
The paedophile investigation unit of the Garda Siochana, received this report from the other country and this information was immediately forwarded to a local Garda station as a result of which Gardai, attended at the home of the parents, which they were renting, and arrested the father for an offence under Section 5 and 6 of the Child Trafficking and Pornography Act 1998 relating to the distribution, production and possession of Child Pornography and brought him to the local Garda Station where he was detained. At this time the father had been alone in the house with the child, his wife was out shopping at the time. She arrived back at the house around the time that the Gardai arrived at the scene.
The Garda Siochana obtained a search warrant for the dwelling house and Gardai arrived at the address for the purposes of carrying out this search. During the search the mother and daughter were in the house. The mother mainly stayed in the sitting room while the child wandered around the house. The mother handed over an iPad which she had with her and which had been noticed by the Gardai but which she had been sitting on leaving only a small portion visible. The Gardai seized a substantial quantity of computer media from the house including personal computers, tablets, hard drives and phones.
The Gardai contacted the HSE Social Work Department and a senior social worker arrived. A decision was made on the known circumstances to take the child into care and Section 12 of the 1991 Act was invoked. She was taken from the house without any significant disruption or upset and was taken to hospital for preliminary medical examination. She was detained overnight at the hospital, where, prior to being taken into care, she attended regularly due to her particular medical conditions.
An application was made to the District Court by the HSE for an Emergency Care Order which was granted. The child was placed in a foster placement where she has remained to this date. The mother prepared a very helpful document for the benefit of the foster parents detailing her medication, medical needs, dietary requirements and matters that might be talked about with the child including names of pets, friends and family, her toys and favourite television. This document was given to the foster carer.
The Gardai carried out a forensic examination of the equipment seized. Of serious concern was that one laptop revealed a video which constituted child pornography and from the log on the computer it was being used by the father and showed recent activity by him. This video showed a child of 2 to 3 years of age being sexually abused by an adult male. Further forensic examination revealed that one of the computers seized from the house was used for the chat log with the undercover policeman at the exact time of the communication and that there were also traces of the email address having been used previously. The father had also used this same computer that morning for searching websites relating to his work.
Investigations by the Gardai with the overseas authorities revealed that the father had been previously arrested in relation to the grooming of a child under 16 which had turned out to have been the person who is now his wife and the mother of the child. He was subsequently arrested in the other country for possession of child pornography. No further action was taken on foot of these arrests, of which his wife was aware.
Further investigations were carried out by Garda Specialist Interviewers with the child, due to concerns that she may have been sexually abused by her parents. She did not make any disclosures that an offence might have occurred. However it was noted that she was reluctant to talk about her parents or family life and became distressed, angry and aggressive when pressed.
While both parents attended supervised access visits with their daughter at an initial stage, the father ceased attending after a short time and went to live in another jurisdiction. The mother continued to attend access. Following concerns raised to the court at applications for extensions of the Interim Care Order, particularly the concerns of the guardian ad litem that the mother might be communicating in a hidden way with her daughter, access was reduced on conditions including precluding her referring to the child’s father, taking photographs, making enquiries about the child’s medical condition and that access should be solely with the mother.
A risk assessment was completed by a registered forensic psychologist on the father. This assessment required a comprehensive risk assessment of him, an assessment of the risk, if any posed by him to the child and other children, an assessment of whether contact between the child and her father was appropriate/safe and what safeguards needed to be put in place if such contact was to take place and in the event that the assessment found any concerns to indicate whether any treatment/therapy might be appropriate. A comprehensive assessment was completed following a review of the available documentation and interviews with the father.
In the opinion of the forensic psychologist the father was a risk of sexual harm to his daughter and to other children and he concluded that he possessed many of the characteristics of someone who would represent a risk of harm to pre- as well as post-pubescent children. The finding was that those people with the history of sexual thoughts and behaviour demonstrated by the father in the assessment were more likely than others to engage in sexual contact with children. His admissions of intimate contact with the mother prior to her 16th birthday indicated that he was able to ignore the fact that she was a child and engaged in sexually inappropriate behaviour with a minor.
The assessment found that he had demonstrated a desire and capacity to engage sexually with a child and that he possessed the capacity to override social convention and act upon his sexual urges with a child. The assessment found that he should be considered a risk of sexual harm to children in general and his daughter, the child, in particular until such time as he had successfully completed a specialist program of therapeutic intervention to address the issues identified in the report and consequently his contact with children should be restricted and supervised by professionals with insight into people who have sexual interest in children. The judge continued: “It is clear from the report and from the admissions made by [the father] that he engaged in an inappropriate, possibly unlawful, relationship with [the mother] while she was a child and that the manner in which he developed the relationship with her constituted ‘grooming’.”
The child
The child had complicated medical needs from birth. She was fed through a tube which was to continue until a specific test was done in a children’s hospital. The parents did not attend the first appointment for the test but she had improved when the test was eventually carried out some months after the first appointment. Concern was expressed at her weight prior to coming into care and her subsequent weight gain.
There was also concern expressed after the child came into care at the number of medical appointments missed by the parents. Over a period of 16 months 17 medical appointments were cancelled or refused by the parents or there was no attendance at appointments arranged with various health and development specialists and with hospitals. Medical appointments were also missed when the child was in the care of the Health Service Executive.
The judge said that there were a number of statements and observed behaviours made by the child in her foster placement after she came into care which raised concerns as to whether the child had been sexually abused. A Therapeutic Exploratory Work Report was completed on the child approximately 9 months after coming into care. The outcome of this report was inconclusive, noting that not all children disclose during a therapeutic process, with disclosures being dependent on developmental considerations and emotional readiness.
The social worker specialist concluded that based on the information gained from the foster care and social work reports that the disclosure process may have commenced and that it was important that the child be cared for in a safe, protective and secure environment which would be conducive to facilitating possible further disclosures and ensuring her emotional and psychological well-being.
The report prepared by the consultant psychologist at the request of the court pursuant to section 27 of the 1991 Act found the various observations and comments made by the child did not themselves point to sexual abuse, but gave rise to serious concerns, strongly suggesting a milieu of threat and anxiety with little by way of parental reassurance, protection or comfort.
Interpreted within the context of the presentation of the mother, the finding was that the child’s presentation might largely reflect broader deficiencies in parenting. Interpreted within the context of the risk presented by the father those comments which might convey a sexual undertone must give very serious cause for concern although they could not be regarded as “disclosures” as such.
The mother
A comprehensive risk assessment was completed on the mother by a senior child protection consultant with an organisation specialising in the assessment and treatment of individuals accused or suspected of sex crimes, professional misconduct or of representing a risk of sexual abuse towards children. This consultant was required to complete the assessment, including an assessment of the mother’s awareness of any risk posed to the child and other children, her ability to protect the child from any harm identified, her ability to care for the child on a long-term basis, the capacity to supervise contact between the child and her father and what treatment/therapy might be appropriate in the event of any concerns being identified.
The report identified that a crucial aspect of the assessment of the mother’s ability to protect was determining if she had the capacity and willingness to reflect and listen to professional opinion and critically evaluate information, albeit even tentatively. Following completion of interviews and examination of the available documentation, the report found that she was manipulated and groomed by the child’s father and given that the parties went on to marry it was understandable that she would have difficulty with this complex circumstance. This was something she would need to address in order to ensure that she would recognise any manipulative behaviour in the future.
The report found she had displayed ambiguity as to whether she would rekindle her relationship with her husband. The report found that she was still in the early stages of evaluating, coping and detangling child protection issues from personal relationship ones, noting that she had been in a long-term relationship begun when she was a child with a man almost 12 years her senior and that there was an inherent power imbalance in this.
The consultant found that the mother currently did not have the skills and/or understanding to be aware of the risk posed to a child or other children. The consultant found that she did not have sufficient grasp of the issues in order to ensure child protection and that it was concerning that she was not more circumspect in evaluating possible harm to her daughter or alternatively appeared to be countering the child’s allegations both in respect of herself and her husband.
The consultant found that she was deliberately vague during the assessment process which called into question how honest she might be the future in regards to maintaining any agreement social services might put in place relating to the child. The consultant recommended that following the outcome of the current criminal proceedings in respect of the father an extended assessment be undertaken with the mother to establish her thinking and further exploring the relevant issues with her at that time.
With matters being unresolved the consultant considered that she struggled in particular to be clear in her thinking and that if there were inconclusive findings from the criminal proceedings, regardless of what that might be, she would be in a better place to undertake an extended assessment.
The consultant considered that she needed to undertake a programme of work which would look specifically at helping her to develop a better understanding of child sexual offenders, the long and short term effects of harmful sexual behaviour and safeguarding children in the future. Alongside this work she might also need specific work in respect of her parenting skills. The consultant was not convinced that she was fully able to grasp the issues required to ensure adequate child safeguarding in a time frame that would be appropriate for the child or on a long-term basis unless she made significant changes in her thinking and understood the issues.
Decision
“The court finds that [the mother] was sexually abused by [the father] while she was a child based on the admissions made by [the father] himself in his interviews with the forensic psychologist. There was no benefit to be derived by [the father] in making these admissions. [The mother] continues to deny any impropriety by [the father].
“At the outset of the case the Court was informed on behalf of [the mother] that she was disassociating herself from (the father) and that she would consent to a permanent barring order against him. The court is satisfied on hearing the evidence in this case that [the mother] continues to have contact with [the father].
“Therefore in considering the Application by the Child and Family Agency under Section 18(1) (c) of the 1991 Act on the evidence presented, the Court is satisfied that the child’s welfare is likely to be avoidably impaired or neglected and that the child requires care or protection which she is unlikely to receive unless the court makes a care order. The Court is satisfied that a Supervision Order would not sufficiently address the child’s right to care and protection.”
Reasons for the Court’s Decision: application under Section 18 (1) (b)
(a) The Father
“While the court has not found on the evidence presented to it that there has been a physical or moral failure by [the father] the Court is satisfied on the evidence that there are compelling reasons why a Care Order should be made in respect of the child on the basis that her welfare is likely to be avoidably impaired or neglected and that the child is unlikely to receive care or protection if the child was returned to the care of her father. It is noteworthy that [the father] did not defend these proceedings.”
The judge said the evidence against him was compelling and the court accepted the expert findings of the forensic psychologist engaged to carry out the assessment on him. The court also accepted the expert opinion and observations of the child psychologist. This evidence together met the threshold necessary to satisfy the Court to make a Care Order.
The father had stated on the chat log that it was his intention to abuse a child and to film this abuse in order that it could be placed on the Internet. The court was satisfied that the father was responsible for this chat log. He had a video on his computer of a child of similar age to his own daughter being sexually abused. The Court is satisfied that he was responsible for having this video on his computer.
The judge said he was satisfied on the evidence that he was a risk of sexual harm to his daughter and to other children. This proved evidence demonstrated that his arousal incorporated pre- as well as post-pubescent children and as a result his risk of sexual harm to his daughter was confirmed.
He said he had demonstrated a desire and capacity to engage sexually with a child and to override social convention and act upon his sexual urges with the child. On his own admission during the assessment he had engaged in sexual activity with the mother while she was a child. The court was satisfied on the evidence that he had engaged in a process of grooming her while she was a child.
The court found that he was a risk of serious sexual harm to children in general and to his daughter in particular. The Court accepted the expert finding of the child psychologist, based on the finding that the father was the user of the computer equipment, that he had clear paedophile sexual interests, that he had a preoccupation with the practical steps involved in sexually abusing a child and that from the pattern of material the risk of escalation to contact sexual offending against a child was high.
“The Court finds that (the father) is a very dangerous person to have in the presence of a child or children and is a person who is at high risk of perpetrating sexual abuse on children,” the judge said. He was not a proper person to be permitted to care for a child. The court accepted the finding that it would be unwise to permit unsupervised contact between him and any child until he had completed a comprehensive and detailed program of therapeutic intervention. The court believed that the outcomes of such therapeutic interventions would necessarily require to be properly validated by an appropriate expert.
(b) The Mother
The judge said that, to her credit, the mother did engage in the proceedings and the court accepted that she loved the child and had been deeply affected by the child being taken into care. He said it was clear from the evidence that she [the mother] had been the victim of abuse by the father. He had commenced an inappropriate relationship with her while she was a child and the court was satisfied that he had groomed her for purposes which were ultimately his own sexual gratification. He had a controlling and domineering influence over his wife.
“Unfortunately for her the court finds this controlling influence persists to this date. [The mother] knows the truth about her continuing relationship with [her husband],” the judge said. Inexplicably, she continued to protect him when she was asked to give details of the relationship she had with him while she was still a child and when a sexual relationship commenced between them. The court believed that it might be a symptom of her own abuse at his hands and a demonstration of the controlling influence which he developed over her.
“Serious allegations were made against [the mother] during the course of these proceedings including allegations that she wilfully neglected her child by not feeding her properly to ensure that she would not gain weight; her behaviour during access having the effect of sending hidden messages to the child; disclosures made by the child to the foster carers which would implicate her in the abuse of the child; that the child suffered emotional abuse when she was in the care of her mother and medical neglect to the extent that it compromised the health of the child. Some of these allegations resulted in the level of access by [the mother] with the child being reduced by the court,” he said.
The court empathised with the distress which must have been experienced by her in these matters being raised at various stages during the Interim Care Order hearing, the hearings for the extension of the Interim Care Order and during the Care Order hearing. The allegations made were obviously of concern to a court which had to regard the interests and welfare of the child as its first and paramount importance. “However,” he said, “the court is not satisfied that these allegations were proven to the required standard of proof necessary in Care Order proceedings. Further the Court is bound to view evidence in childcare cases in the light of the constitutional presumption in favour of the child being with the birth parents.
“There is a legal maxim which states: ‘He who asserts must prove’. The evidence presented in this case grounding these allegations did not satisfy the standard necessary, which is the balance of probabilities, to enable the adverse findings against [the mother] be made by the court to her detriment; that the child’s welfare had been avoidably impaired or neglected while she was in her care, that she failed in her duty to the child for physical or moral reasons.”
Case law
“The Court notes what was stated by Kearns P. in England V Judge Dunne and Others [2003] 2 JIC 1401 on how a Court should deal with evidence of a serious nature in civil proceedings. This case deals with the forfeiture of assets the proceeds of drug trafficking. In his judgment Kearns P. states:
‘To the extent, therefore, that the very limited reliefs and grounds permitted to be argued at the leave stage in this case require me to consider the nature of the particular proceedings, I am satisfied they are essentially civil in character, although possessing characteristics which undeniably justify the description of same as “hybrid”. In such situations, I think it is fair to say that any judge hearing an application of this sort must be particularly careful to ensure that no unfairness results from rulings made in the case. As was stated by O’Flaherty J., in O’Keeffe v. Ferris [1997] 3 I.R. 463 (in the context of a challenge to the constitutionality of Section 297 of the Companies Act 1963) (p. 472):
‘… the plaintiff’s case was put on the basis that the civil proceedings were really a disguise for what was truly an attempt by the Oireachtas to impose a criminal sanction in a civil context. The Court rejects this construction of the Section. It holds that the Section is clearly within the policy entitlement of the Oireachtas to enact, it is designed to protect creditors and others who may fall victim of people engaged in fraud … it is true that the proof of fraud will be to the civil standard, but it is also so that the more serious an allegation that is made in civil proceedings, then the more astute must the judge be to find that the allegation in question has been proved.’
“Findings of the Court in cases of such serious import as childcare proceedings must be based on facts proved in evidence on the balance of probabilities, and not suspicions or speculation. Unproven allegations remain just that. Where the case being made by the Child and Family Agency is challenged on the facts the responsibility is on the CFA to adduce proper evidence to establish the case it seeks to prove. It remains at all times for the Child and Family Agency to prove the case by calling such evidence as it deems appropriate and if necessary to call expert witnesses with the required expertise.
“It is worth noting what was said by Kingsmill Moore J. in AG (Ruddy) V Kenny (1969) 94 ILTR 185 in relation to matters requiring the calling of expert evidence:
‘The nature of the issue may be such that even if the tribunal of fact had been able to make the observations in person he or they would not have been possessed of the experience or the specialised knowledge necessary to observe the significant facts, or to evaluate the matters observed and to draw the correct inferences of fact.’
“Lord Cooper in Davie V Edinburgh Magistrates (1953) SC 34 stated the function of expert witnesses as follows:
‘… is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgement by the application of these criteria to the facts proved in evidence.’
“This passage has been approved by the Irish Court including recently by Charlton J. in Condron V ACC Bank plc (2013) ILRM 113 when he said:
‘The purpose of an expert witness is to enable the court to be instructed on arcane disciplines which are outside the experience of a judge or jury.’
“The evidence presented in this case did not satisfy the Court to make an order under Section 18 (1) (b).”
Reasons for decision under Section 18 (1) (c)
“The Applicant also applied for a care order under Section 18 (1) (c) of the 1991 Act. In order to satisfy the threshold in this case that the child’s welfare is likely to be avoidably impaired or neglected then facts must be proved to enable the Court on an objective basis to determine the likelihood of future harm on the balance of probabilities.
“Paul Ward in his book Child Care Acts Annotated and Consolidated (3rd edition) at Page 65 states:
‘The third ground upon which a care order may be granted is on the basis that the child’s health, development or welfare is likely to be avoidably impaired or neglected. While the previous ground requires that there is or has been neglect or impairment to the child’s health, development or welfare, and that there is evidence to this extent, this ground operates on the premise that there has not yet been, or there is insufficient proof that there has been, neglect or impairment but that it is likely in the future. Of the three grounds this is the most difficult to satisfy in terms of proof.’”
The judge said the court was satisfied that the mother continued to have contact with the father. In light of the previous grooming of her by him and having heard her evidence the court was satisfied that she continued to be influenced by him and would not be a protective factor for the child in the context of the involvement of the father in any aspect of the child’s life.
While the court had not found on the evidence presented to it that there had been a physical or moral failure by the mother the Court was satisfied that there were compelling reasons why a Care Order should be made on the basis that the child’s welfare is likely to be avoidably impaired or neglected and that the child is unlikely to receive care or protection if the child was returned to the care of her mother.
The court had provided its findings in relation to the father and the substantial threat which he posed to his child and to other children. It would be worthwhile for the mother to have serious regard to these findings as it was noteworthy that the risk assessment report prepared on her recommended delaying an extended assessment of her pending the outcome of criminal proceedings. While these were not criminal proceedings she would do well to consider the findings which had been made by this court following a lengthy hearing and in particular the adverse findings which had been made against her husband.
“To put it bluntly [the father] is a sexual predator of children. [The mother] is a victim of his actions as [the father] carefully planned and selfishly perpetrated abuse on her while she was a child,” the judge said. He had stolen her childhood and the court was not prepared to allow an opportunity to arise where the child would become another victim and suffer sexual abuse at his hands.
The court accepted the findings of the senior child protection consultant who carried out an assessment and prepared a report on the mother and must therefore conclude she would not represent a protective factor to the child in circumstances where she continued to remain under the influence of her husband. Unfortunately she was unable to prioritise the needs of her child over her own. She did not possess at this time the skills and understanding to be aware of the risk posed to her daughter by her husband.
The court did not blame her for these deficiencies as it was clear that they were as a result of the abuse perpetrated on her by her husband. However the court was obliged to protect and safeguard the child’s interests and welfare and this was why the court had to make such a difficult decision.
The judge then referred to continuing contact between the mother and her husband. “The court finds that [the mother] misled the court by either denying or minimising the level of contact which she had with her husband. At the outset of this case through her legal representatives, the court was informed that she would consent to a permanent barring order against him. No barring order has been sought or obtained. No proceedings have been instituted by [the mother] seeking to legally separate or divorce her husband. The evidence, which is accepted by the court, proves that she continues to have contact with [the husband].
“This is the person who in graphic detail stated that he was going to abuse her child, film that abuse and place it on the internet for other sexual predators to view. By any standard the Court finds it inexplicable that [the mother] would continue to have any contact or involvement with a man whose expressed intention was to abuse her child. [The mother] was present when the transcript of the chat log was read to Court and when descriptions were given of the video of a child of similar age to her own was being sexually abused which was found on her husband’s computer. [The mother’s] behaviour runs counter to reasonable maternal instincts. One would have thought at this stage she would be ashamed to continue to use her husband’s surname.”
Speaking directly to [the mother], he said: “l wish to state that [the husband] is the man who has caused your child to be taken into care. Except for the timely intervention by police authorities in [another jurisdiction] and Ireland your child would certainly have been sexually abused by your husband. Indeed he may have already sexually abused your child, although on the evidence presented the Court is not satisfied to make such a finding at this time.
“One can only hope for the sake of your child that this did not take place but [the child] may have something further to disclose in the future. It is also worth contemplating the fact that he left you alone to defend these proceedings and to have to listen on your own to the serious allegations being made in this case. This man has caused psychological damage to you, which continues to have a detrimental effect on you and your ability to protect your child.”
He said that prior to the recent evidence of her continued involvement with her husband, if the expert evidence on the child’s statements to the foster carer did not point to sexual abuse and her involvement in that abuse, having regard to the evidence already presented to the court, it was likely the court would have found that it would not have been proportionate to make an order until the child was 18. It would have made an order for a shorter period in order to give the mother an opportunity, through her engagement in the appropriate assessments, interventions and therapy to satisfy the court that she was now a protective factor for the child and that it might be appropriate to make an order returning the child to her care in the future.
It was for that reason that the court made the direction for a programme of work as recommended to help her to have a better understanding of the complex issues in this case in the hope that the process would have commenced if adverse findings were not made. While the child psychologist did not interview her his findings, having listened to the digital recording of her sworn evidence to the court, were instructive in considering a roadmap for future therapy for her should she wish to avail of it. This work had now commenced and one could only hope it would in time have a positive effect for her. However any contact or involvement with her husband would mitigate against the effectiveness of any interventions.
“Ironically,” the judge said, “[the mother] became the best witness for the Child and Family Agency in this case by continuing to be involved with [the father] and thereby ensuring that the Court had no option but to make the Care Order for the full duration. One can only hope that the findings in this case and the orders made will finally enable [the mother] to see where the truth lies. [The mother] has continued to hold onto a dream that her family of her husband, her daughter and herself might get back together as before. The court is not prepared for this dream to become a reality as this would represent a nightmare for her child.” he said.
The court had great sympathy for her situation as it accepted that she was herself abused by the father. However in this case the welfare of the child was the court’s first and paramount consideration. The court had been purposely direct in setting out its reasons in the hope that she would finally see the truth and reach out for the help she so desperately needed. Irish law did not rule out future reunification of a child in care. However for this to take place the onus would now be placed on her to engage in appropriate therapy and to prove verifiable change had taken place and that she was a protective factor for her child.
“The court is satisfied the child’s welfare is likely to be avoidably impaired or neglected and that she requires care or protection which she is unlikely to receive unless a Care Order is made. The court orders that she be committed to the care of the Child and Family Agency until her 18th birthday. A Supervision Order would not be appropriate in this case,” he said.
Directions
The judge also made a number of directions which included directions relating to a child-in-care review, a care plan and access by the mother which was to be “within the parameters of Section 37 of the 1991 Act having due regard to the best interests of the child, the wishes of the child and the needs of the child and the mother or other person provided for under Section 37(1) of the 1991 Act.”
The judge directed that the father should not have access to the child until further court order. He also directed that the CFA make available and fund appropriate therapeutic interventions and supports and services for the mother, if requested by her, to meet her specific needs.
He also directed the CFA to notify the appropriate Child Protection Services in the other jurisdiction of the finding of the court that the father represented a Child Protection Risk and recommended that appropriate safeguards be put in place in the interests of the safety and welfare of children under the age of 18 years.
The judge directed the CFA to contact the Department of Children to request it to seek bilateral arrangements with the government of the country in which the parents reside and at European Union level “for documentation relating to child protection concerns to be retained by authorities for a lengthy period in the interests of promoting the optimal levels of child protection in the European Community within the framework of the fundamental right of free movement of citizens and that appropriate frameworks, protocols and mechanisms are put in place for the sharing of information between the appropriate child protection authorities in Member States or other states. This direction is due to documents relating to historic child protection concerns against (the father) not having been available for inspection as documents had not been retained in (the other jurisdiction) after a period of time had elapsed.”
The judge also directed the CFA to carry out an independent internal review to find out why a letter from the mother’s solicitor, which stated her willingness to carry out recommended assessments, was not responded to for more than four months.
He also directed “a satisfactory explanation from the social work team as to why medical appointments for the child were missed after she came into care. A report shall be prepared and made available to the Court by the Access Review Date at which stage the Court will consider what further action if any needs to be taken,” he said.
The judge granted the Legal Aid Board, which represented the mother of the child, costs measured at €15,000. He said he would retain seisin of the case until further order.
