An interim care order application in respect of a toddler and a baby (child A and child B), who resided with the mother in homeless accommodation, was adjourned to allow child A’s father seek a different legal team and to facilitate a family welfare conference.
At the outset of the estimated five-day hearing the court heard that, before the CFA could proceed with the application, a family welfare conference with the involvement of a wide range of family members should take place to explore solutions that would avoid the young children going into care.
The mother had two other children in care: one in the UK, who was subsequently adopted, and one in Ireland. She was legally represented but was not present because there was a lack of assistance to enable her to attend court with two children. The two different fathers were in attendance. One was legally represented and the other had requested a change of legal team. Present in court were the GAL, his legal representative and a legal interpreter for child A’s father.
The CFA solicitor said the interim care order application had been filed almost three months earlier. It was “a very serious matter” involving two young children who resided with the mother in homeless accommodation. The mother was no longer engaging with the Agency.
The family welfare conference
Counsel for the mother said the GAL’s report and two parental assessments had just been received that morning. At the first hearing two months earlier the judge had directed all parties to detail the issues in writing. Despite various requests, the CFA had not provided a formal written response outlining the reasons why a family welfare conference did not take place. When the matter returned to the court a month later, it was agreed the family welfare conference would be held the following week or at least steps would be taken to facilitate it.
“The family conference has not taken place yet. My client was contacted last week for the first time, and again this morning, with the request to meet today or tomorrow,” counsel for the mother said. The mother and other siblings who had offered their support had also been contacted to meet that morning or the next day. Unfortunately, it was very short notice as they lived in different parts of the country.
The court heard that there were three or four family members interested in supporting the mother and children. “This conference should happen before the CFA embarks on this application. It is our application that the CFA must rule out all options before taking the children in care in circumstances where there are family members willing to assist,” counsel said.
Counsel for the CFA said that an application had been brought to have both cases heard together because the required threshold for an interim care order had been met. She clarified that there was an agreement to take steps in order to facilitate the family welfare conference. It was due to be held that afternoon and more meetings were scheduled for the following day. The social worker already had discussions with all family members and there was no reason why the CFA should not proceed with the application while the family conference would take place in parallel. “We believe that the CFA application should proceed,” she added.
Counsel for the mother said: “It is a question of identifying family supports so that those children do not have to come into care.” The court heard the GAL had recommended in his report that a family welfare conference would take place in order to examine the support that could be used to neutralise the situation.
Judge: “Are you looking for an adjournment?”
Counsel for the mother: “It should not proceed until this avenue is exhausted. Last minute phone calls this morning to family members is not appropriate. I don’t think an interim care order application should go ahead without exploring what support would be available between the two families. Two families are willing to work together.”
Change of legal representative
The court heard that child A’s father had requested a different legal representative from the Legal Aid Board for various reasons including that he did not get timely updates about the case. In the meantime, he was not in the position to represent himself. The judge said: “I would not grant the application until I am satisfied that there is a new legal team appointed.”
Counsel for the CFA said that the father was seeking files related to the mother’s other two children who were put into care in Ireland and in England. He wanted files to be brought from England. The judge pointed out that the court would only deal with matters and documents relevant to the case. “He has to understand that,” said the judge.
GAL’s views on proportionality
Counsel for the GAL said that he was not supporting the granting of the interim care order at that point in time. He believed that, while the legal threshold had been met for the granting of an interim care order, it was a disproportionate intervention at that stage in circumstances where placements had not been identified to meet the long-term requirements of the children. The placement for child B was intended to be in a rural town and the GAL was concerned about the availability of the support services needed having regard to B’s presentation.
Judge: “Does the GAL have a view on the family welfare conference?”
GAL Solicitor: “He supports the family conference to be convened and all avenues to be exhausted.”
Counsel for the CFA said that section 17 of the Child Care Act 1991 did not require that a family conference would take place before an interim care order application. “We have taken steps for a family welfare conference to take place this afternoon. We consider it a parallel process. There is no injunction that you have to have a family conference,” she said.
In relation to the concerns expressed by the GAL, the CFA counsel pointed out that the required supports for child B had been identified in the rural town. If necessary, they would be outsourced privately. She said: “We do not see this as a problem. We continue to discuss this matter with the GAL.” Counsel for the CFA pointed out that, in any event, the court had to be satisfied that the threshold was met and the family conference took place. “It may be resolved before this matter is over; it does not prevent the court going ahead,” she said.
Adjournment
The judge agreed with the CFA counsel that the law did not make it mandatory to hold a family conference for an interim care order to be heard. The judge acknowledged that the court was exceptionally busy that day because, due to unforeseen events, one of the judges could not attend and they had no extra judicial resources to cover those eventualities.
Given that child A’s father had requested a change of legal representation, which the Legal Aid Board was considering, the judge said it was important that the father was provided with an opportunity to be legally represented. The court heard that the timeframe for the Legal Aid Board to find a new legal representative would depend on resources available even on an urgency basis. The judge said: “If I adjourn [the hearing], he must appear here ready to proceed. It is up to him to advance the matter with the Legal Aid Board. I am being very clear about that.” The judge noted that there was a family welfare conference scheduled two days later.
Taking into account the GAL’s view that it would be an important step to organise a family welfare conference, and to ensure fair procedures, the interim care order hearing was adjourned for two days. “There are two young children at stake and there is a responsibility of the adults to ensure that there is not delay in the best interests of the children,” concluded the judge.
Two days later
When the matter returned to the District court two days later, counsel for the CFA reminded the court that the matter had been adjourned a number of times over three months “for various reasons” and said that the hearing should commence immediately to deal with the matter efficiently.
Counsel for child A’s father said that he had just been instructed and he had not had a chance to read the papers. A parental assessment made available that morning had to be read in conjunction with extensive observations that ran over 700-pages.
Noting that child A’s father was not in a primary parenting role, the judge emphasized that the matter had been drifting for three months. Counsel for the CFA pointed out that child A’s father was not the subject of the parental assessment. “I fully appreciate that [counsel] has to read it, but it is not a fundamental document,” she said.
Counsel for Child A’s father said that he would need to take instructions in relation to the documents. Counsel for child B’s father told the court that other relevant reports were received relatively late and there had been not sufficient time to go through all the documentation.
Acknowledging that it was a difficult case involving a biological father who was not parenting but had rights and a non-biological father who was parenting, the judge said: “This case is going to get more reports and additional documentation because it is the function of the social workers and the GAL. I am not particularly concerned that this case is going to generate further documentation. This is the reality in these cases.”
Counsel for the mother said her client had repeatedly asked for the family welfare conference to take place given that the two families on both sides were willing to work together. “We think it should be given an opportunity to explore all supports available, it is unspeakable that it has not been done,” said counsel.
Counsel for the CFA told the judge that the family welfare conference continued to be a parallel process to the interim care order application. Meetings had taken place in the previous two days but nothing substantial indicated that there were alternative carers. Short reports were being produced.
Asking about available supports to the family, the judge said: “Even if you meet thresholds, there is an issue whether any order is necessary or whether supports would be deemed sufficient. It is important that the court is given the full picture.”
Counsel for the mother said she would like a copy of the minutes of the meetings held in relation to the family welfare conference because there was a concern that the social worker was told to focus on alternative care as opposed to supporting the families as a first option.
Counsel for the GAL said that some of the GAL’s concerns had been met since the last hearing. Discussions with the social work team leader and the regional disability services manager took place to ensure that the required supports for child B would be available in the proposed placement in the rural town.
However, a fundamental difficulty was that the proposed placements were short-term. The GAL’s assessment had concluded that while the threshold had been reached, the risk attached to not identifying placements that would meet the long-term needs of the children could render the intervention disproportionate. The judge said that it was important that the GAL would provide feedback regarding the impact of both siblings being raised separately because the court had to address the issue of proportionality.
Acknowledging the Agency’s efforts, the judge said that under the Child Care Act 1991 the CFA had a dual function, and a very difficult task, to protect children but also to address the constitutional rights of the parents and the children. The judge said: “I am not being critical of the Child and Family Agency. We are here now and the Agency has a right to commence these proceedings.”
The judge looked at the court diary and noticed a potential overlap of court hearings involving the same legal teams if the case was adjourned. The judge said: “Let’s balance what needs to be addressed. Go out and organise your diaries. These are complex matters and it is important that all legal representatives have the opportunity to prepare for the cases adequately.” Following a brief adjournment, the court heard that all parties were agreeable to a three-week adjournment.
Considerations
Considering the welfare of the children, the judge cited Re. J.H. (An infant) [1985] IR 390 where the Supreme Court set out the test to satisfy the court that there were compelling reasons why the welfare of the children could not be found within their family. The judge then referred to G v An Bord Uchtala [1980] 1 IR 32 where Walsh J held that “the welfare of the child is to be the superior or the most important consideration, in so far as it can be, having regard to the law or the provisions of the constitutions applicable to any given case.”
In relation to the rights of the parents, the judge said that in SMcG v Child and Family Agency [2017] 1 IR 1 the Supreme Court had placed significant importance on the requirement to respect fair procedures in childcare proceedings and for the court to grant adjournments where necessary to ensure parties were properly represented. The judge also referred to the High Court judgment in KA v Health Service Executive [2012] IEHC 288, [2012] 1 I.R. 794 where O’Malley J. pointed out that a fundamental flaw at an early stage in child care proceedings could have a detrimental effect on the process as a whole.
Based on these authorities, the judge held: “It is proportionate and relevant that I agree to the adjournment. However, if there was to be a further change of legal team, I have no doubt that perhaps a different decision would be made because then the balance would switch to the Child and Family Agency.”
The judge found that the constitutional rights of the children were “fully respected” as a GAL had been appointed and the CFA had the benefit of other remedies under the Child Care Act 1991 such as section 13 (emergency care order) or section 19 (supervision order) in the event that it was needed. The judge said: “I am going to adjourn it to the suggested date. It is unfortunate but it is all for the right reasons.”
The CFA subsequently withdrew the interim care order application and the dates were vacated.
