A judge in a rural district court ordered a report under section 27 of the Child Care Act 1991 to provide an independent view as to whether it was in the best interest of a young girl to move to live with extended family in a foreign undeveloped country or to remain in care in Ireland. Given the evidence presented, the court had serious reservations in relation to the Child and Family Agency’s (CFA) proposed reunification plan in the foreign country, in particular, the standard of care and protection she would receive there.
Background
The young child, who was born in Ireland, had been in a foster placement under an interim care order since her mother returned to her country of origin almost a year and a half earlier. The mother had been living in Ireland for 15 years but did not have Irish citizenship. The purported father had been estranged from the mother for a long time and there were questions as to whether he was in fact the biological father.
The child had an aunt in Ireland, who had become an Irish citizen through naturalisation. She was not in the position to care for the child for professional reasons. There had been an agreement that the child would be cared for by her maternal grandparents in the mother’s country of origin. The child was due to commence primary school in September.
Citizenship
When the matter returned to the court, counsel for the CFA said that the grounds to extend the interim care order continued to exist because the maternal aunt was not in a position to care for her niece. Present in court were the social worker, counsel for the aunt in Ireland and the mother and counsel for the GAL.
Judge: “Could the aunt look after her? This is her chance to stay in Ireland.”
CFA: “She works full-time and she feels she is not in the position because of the grandparents and the mother. This has been discussed with the aunt. It is a very difficult situation.”
The court heard that the aunt was trying to satisfy the wishes of the mother and the grandparents. The Agency was satisfied that reunification with the grandparents in their country of origin was in the best interest of the child.
The social worker told the judge that the mother had come to Ireland 15 years ago with her husband. She had a spouse visa but subsequently her husband left for Australia. She met a different man and had a daughter now of primary school age who lived with her father in Thailand. The mother went on to have the child who was currently in care. She left the country 16 months earlier when her daughter was three years old. The social worker added that the aunt had said she did not have the capacity to care for her niece.
Judge: “Has anyone checked where is this child going to be staying in the [non-European jurisdiction]?”
Social worker: “We had requested information from their social work department.”
Judge: “It is naive to think that the quality of child care is the same across the globe.”
Social worker: “The assessment will show that the extended family will have the capacity to care for the child.”
Judge: “If the child was sent back to [the foreign country] to be reunited with her grandparents, would the role of the Child and Family Agency stop?”
Social worker: “Yes.”
Counsel for the mother and the aunt said that the grandparents, and not the mother, would take over the care of the child. The court heard that the social work department in the foreign country would make an assessment. The mother was known to have been a drug user. The judge asked: “Are there any other suspicious activities? Are there any trafficking issues here?” The social worker said that there were no other concerns, only drug use. When the judge asked how old the grandparents were, the social worker was not sure.
In relation to the possibility of the child obtaining Irish citizenship, counsel for the GAL said that the legal advice indicated the matter was at the discretion of the Minister for Justice and the legal guardian would have to make the request. Noting that the relevant foreign country was underdeveloped with poor standards of living and education, the judge said: “We must ensure all alternatives are considered. The child has constitutional rights, independent of the mother or the aunt.”
Counsel for the mother and aunt: “The grandparents are now in [a different country]. It does raise major concerns.”
Judge: “I have serious reservations.”
CFA Counsel: “But an assessment has been made by independent professionals.”
GAL counsel: “This is in the best interest of the child.”
When the judge asked counsel for the GAL why it was in the best interest of the child, he replied: “Because the social work team in [the non-EU jurisdiction] have said that it will not just be the grandparents caring for the child but also an[other] aunt. If she goes, she should go now. There has been already a delay while we look at the issue of citizenship.”
Extending the interim care order for 28 days, the judge asked the CFA to invite the child’s aunt, who lived in Ireland, to attend the next hearing. The judge said: “It is a very difficult case. [Her aunt] is the blood relative. I want to find out from her why this is in the best interest of the child, given that the child only knows Ireland. If she does not attend then I could make inferences.”
The judge asked counsel for the GAL to put in writing the reasons “in black and white” why it was in the best interest of the child to move to live with the extended family to a foreign country. “If the GAL has reservations, let me know in writing as well,” the judge added.
Judge: “We are all trying to do our best. We have to deepen it a bit. At least we know that the evidence has been explored. When the child turns 18, she will know what efforts were made.”
Letter to the Minister
The matter returned to the District court four weeks later. Present in court were the social worker, the principal social worker, counsel for the mother and the aunt and counsel for the GAL.
Counsel for the CFA told the court that the mother, who was back in her country of origin, was not responding to any correspondence. Following a DNA test, it had been confirmed that the child’s biological father was unknown. The judge asked to formally remove the individual previously named as the father as a party to the proceedings.
The social worker said they continued to collaborate with the relevant social work department abroad. It had come to light that the child had a younger brother living there. In addition, the mother had a fourteen-month old baby. The plan was to reunify the child with her siblings and family.
Counsel for the mother and aunt noted that it was worrying that there had been no information regarding this child. Counsel for the CFA said that the mother was not living in the family home. The judge said: “Whether she was living at home or not, it could have been known even through the grandparents. It is not rocket science. It is common sense.”
The court heard that the social worker found out because the child was talking to her step-brother through Skype. The judge said: “It takes a [very young] girl to carry out the investigation for the Agency?” Counsel for the mother and the aunt said that she had no instructions from her clients, who were not responding to emails and calls, but she would continue to correspond further.
Counsel for the GAL told the judge that legal advice had already been provided in relation to the citizenship status of the child. Admitting that it was “a special case”, he said that the GAL could not make the application on behalf of the child, only a legal guardian could. Counsel for the mother and the aunt said that the GAL could contact the Minister for Justice and explain the circumstances of the case. “It is open-ended. It is possible,” she said.
Judge: “I am concerned whether the best interests of [the child] are been looked after.”
Counsel for the mother and aunt: “It does not have to be a legal application. It could be a letter of concern.”
Accepting that it could be in the best interest of the child to be reunited with family, the judge said he was not trying to hold back the process. Pointing to the disconnected pieces of information, counsel for the mother and the aunt said: “There is something not right.”
The judge said to the GAL counsel that it would be useful if the Department of Justice was contacted to outline the court’s concerns about the citizenship of the child. “Remember, the GAL represents the best interests of the child. I would like to give the child a bit of protection, ‘a way out’ if she needs it. [Citizenship] would be a big plus, not a bad thing.” Counsel for the CFA remarked that everything the Agency did was in the best interest of the child.
The judge was satisfied that the threshold had been met and extended the interim care order for 28 days.
“Bits and bobs” of information
The case returned again to the District court. Asking for an update, the judge said: “I am concerned that if the child is returned, her welfare needs will not be fully met. We expect the same standards of care across the board but that is very naïve. This child does not know anything but Ireland.”
The social worker told the court that the child was doing very well. It had come to light that the mother’s estranged husband was still residing in Ireland. It appeared that the biological mother and her youngest child were now living with the grandparents, the proposed carers, and the other aunt.
GAL counsel: “We have been supporting the reunification plan to live with the grandparents and the maternal aunt. At the last hearing, the position was that if reunification was to happen a plan should be put in place so that the child would go safely. That position needs now to be re-examined.”
Judge: “Did you check with the minister in relation to the citizenship status?”
GAL: “No. If the aunt and legal guardian made the application then we would support it.”
The judge expressed very serious reservations in relation to the reunification plan proposals put forward by the Agency. “As the months progress, the information that comes in bits is making me feel uneasy. I don’t think that the Agency, as things stand, has the best proposal at the moment,” said the judge. Given the evidence presented, the judge said he would like an independent “third party opinion”. “It would make sense, Judge,” said the counsel for the mother and aunt.
The CFA counsel pointed out that the application sought was for an extension of the interim care order. The judge pointed out: “But the entire objective at the moment is reunification in [the non-European jurisdiction]. I am looking down the road.”
The judge noted that the GAL represented the independent voice of the child and the best interests of the child. Nevertheless, it was the first time in months that the GAL, who had been supporting the move, expressed any concern. The CFA counsel told the court that there was “a lot of room under section 47 to make any directions as you see fit.”
Counsel for the mother and aunt said that the GAL was “not coming down on either side”. She pointed out that the child had seen her aunt once a week via Skype and, according to the social worker report, that was considered to be an introduction to their culture. She drew attention to the fact that the child was due to start school in three months.
The judge said: “I wouldn’t be comfortable without an independent assessment. There are so many bits and bobs. “
The GAL said that there was one difficulty if the court commissioned a report. If the child was to be returned, it would have to be before the school term was due to start. Counsel for the mother and aunt said that the independent assessment should be progressed regardless. The judge noted that the child was starting in Junior Infants. “I would appreciate if at the next hearing the three of you advise this court about how to progress the matter in the best interests of the child,” the judge said.
Counsel for the mother and aunt suggested that it would be useful to have the opinion of the foster carer. The court heard that the child had been in foster care for a year and a half.
The judge said:” I want to be one hundred per cent sure that it is the right move for the child. Are we sure that the mother is the biological mother by DNA test?” The social worker answered: “Yes, we are.”
Counsel for the mother and aunt said that her clients were not responding to calls and emails. The aunt was liaising with social services though she was not liaising with her legal team.
Social worker: “What is in the best interest of the child is central. We know. At the same time, we did explore everything.”
Judge: “This is not a fault game. We are all trying to do our best for [the child]. There is no question about that. But there is no room for error.”
Acknowledging that the judge was worried about what would happen to the child, the social worker pointed out that this was a well-known family in [the non-European country] and that the social work department there had confirmed they would be able to look after the child. The judge pointed out the cultural differences in relation to children born out of wedlock and said: “I don’t know what the implications would be over there if she is a child born out of marriage.”
The social worker said that the child had an adult step-brother in his 20’s in her mother’s country of origin and another step-brother in Ireland.
Extending the interim care order, the judge directed all parties to propose at the next hearing a professional consultant, suitably qualified and completely independent, who could undertake responsibility for the report.
CFA counsel: “To review what?”
Judge: “To review everything and come up with independent recommendations.”
CFA Counsel: “The Agency has no ulterior motive in this case. All of our assessments are professional and independent.”
Judge: “I would like an independent person confirming whether reunification is the right thing to do. At the end of the day, we all have the same goal in mind.”
Section 27 Report
When the matter returned four weeks later, counsel for the CFA attempted to address the court’s concerns regarding the reunification plan. Present in court were counsel for the aunt and mother, the social worker and counsel for the GAL.
The Agency proposed that the GAL, as an independent voice, could make an assessment of the situation and advise the court what was in the best interests of the child. The GAL would assess both the impact of the child’s reunification with the extended family in a different jurisdiction as well as the impact of staying in Ireland under a care order. “It would proceed on a parallel basis,” said the CFA counsel.
Counsel for the mother and aunt told the judge that more information had again come to light. The grandparents were not aware that the child was born outside of marriage and that the father was unknown.
The social worker said that they had requested all adults in the family home to be part of the assessment in the context of reunification. They were expecting the extended family to “take the lead” at that point in the proceedings. She said: “We will be planning from this end and try to establish a clear picture of how life would be for [the child] is she went to [the non-EU jurisdiction] in terms of education, etc.”
The court heard that there were one male and four female members in the family. All four female family members had been educated.
The social worker said that there would be “parallel planning” thus consideration would also be given to the possibility of the child staying in Ireland under a care order. Since the new information came to light, the grandfather had not been in touch with the social work department to confirm whether the reunification plan was still an option. “We need to give [the child] some stability and certainty,” she said.
Counsel for the GAL said that the child was starting school in over two months thus she needed to be “settled one way or the other”. Given the patriarchal nature of the family, it was concerning that the grandfather was not aware of the full circumstances and it was uncertain whether he would be able to accept them.
Judge: “It is frightening that until very recently reunification was sought. That’s why I have been reluctant. It is important that the decision reached is the correct one. The last year has been wasted.”
The GAL told the judge that as part of the suggested parallel planning the child would commence Junior Infants year in school. The parallel planning progression would involve assessing the benefits and drawbacks of reunification in the other country compared to the benefits and drawbacks of staying in the State under a care order.
When the judge asked what evidence, independent from the CFA, would be available, counsel for the mother and aunt pointed out that an independent report would be necessary. She recommended a named independent consultant. Counsel for the CFA and for the GAL told the judge that they were not familiar with that person.
While hearing the professional background of the proposed consultant, the judge pointed out that the qualifications were not as important as the experience. The judge admitted it was “tricky” because he was looking for an independent opinion regarding both alternatives.
Considering the time limitations the judge said: “It will be a challenge because [the consultant] may need to meet people face-to-face.” The judge put a cap on the time frame. The social worker agreed with the judge that, in the meantime, the child should start in the local school.
Counsel for the GAL told the court that his client’s view was that all parties needed to be involved. If the grandfather was not fully aware of the situation, then reunification would be unlikely and the report would be unnecessary. The judge said that if the GAL was of the view that any of the recommendations from the commissioned report was not fit, the GAL would have the right to oppose it provided that was justified. The judge said: “[The GAL’s] view will not be compromised. You will have an independent voice one way or the other. It will be an independently informed report.”
Satisfied that the grounds for the interim care order continued to exist, the judge granted a 29 days extension. The judge directed a report under section 27 of the Child Care Act 1991, lifted the in camera rule for the purpose of preparing the report by the appointed independent consultant, and asked all parties to circulate and agree on the terms of reference. The CFA was to take responsibility for the costs. The judge said: “I don’t know how much the fees are but it has to be a reasonable rate. I do not want the charge to be ridiculous.”
Judge: “How is [the child]? I guess she is oblivious to all of this and happy?
Social worker: “Yes judge, she is.”
