Child and Family Agency -v- HL & Anor

• Judge: Mitchell J.
• Judgment Date: 28 November 2014
• Neutral Citation: [2014] IEDC 20
• Case Outcome: Approved
• Date: 28 November 2014
• Court: District Court (Ireland)

[2014] IEDC 20

THE DISTRICT COURT

Child and Family Agency

Applicant

-AND-

HL

Respondent

and

KL

Respondent

Section 18 of the Child Care Act 1991

In the matter of A and B, Children

28 November 2014.

1. A judgment was delivered by this Court in Oct ober 2014 following a lengthy hearing of these c onteste d proceedings. On that date

the Court dec lined to make a care order but made a supervision order for 1 year from that date. The parties were informed that the

Court intended to de liver a written judgement as to t he reasons for its decision and to refe r to the relevant fac ts, legislation, legal

authorities and cas e law in this regard.

2. These proceedings were institute d by the Applicant seeking orders pursuant to sec tion 18 of t he Child Care Act 1991 (hereinafter

referred to as t he ‘the Ac t of 1991’) committing the two children, the subject of these proceedings, into the c are of the Child and

Family Agency until the c hildren reached t heir 18th birthday. The c hildren will be referred to as A and B and the respondents are t he

mother and father of t he two c hildren. A Guardian ad Litem was appointed in these proceedings. She supported t he application for a

care order. Thes e proceedings were fully c ontest ed by the respondent parents.

Background

3. A was born in 2009. The Garda Síochána invoked sec tion 12 of t he Act of 1991 one day af ter A’s birth and the child was delivered

over to t he Health Service Exec utive (hereinafter referred to as the ‘HSE’ and subsequently the Child and Family Agency). An

emergency care order was granted in respect of this c hild on that date and the c hild has been in the c are of the Child and Family

Agency sinc e that time. The c hild has remained in care pursuant to interim care orders which have been granted from time to time by

the District Court.

4. B was born in 2011. An emergency c are order was granted in respec t of this child within a c ouple of days if t he child’s birth and the

child has been in the c are of the Child and Family Agency since that time. The c hild has remained in care pursuant to inte rim care

orders which have been granted from time to t ime by the District Court. Both c hildren have lived together with the same foster family

since they were placed in care.

5. The respondents, who were living in and habitually resident in the United Kingdom, travelled to Ireland in the summer of 2009 at a

time when the mother was at an advanced stage of pregnancy and was expecting A. T he mother and father at tended at a General

Hospital shortly after t heir arrival in Ireland stating that t he mother was in labour. Documentation had been forwarded to t hat hospital

by social servic es in the United Kingdom which expressed c hild protection conc erns in respect of the unborn child. This information

was forwarded to the loc al social work department and formed the basis of t he decision taken at an Emergency Child Protection Case

Conference whic h was held the f ollowing day that an applicat ion would be made to Court for an emergency c are order. The c hild was

delivered up into the c ustody of the HSE that same day by the Garda Síochána w ho had invoked section 12 of the Ac t of 1991 at the

hospital following consultation with t he soc ial work department and an emergency c are order was granted on t hat dat e. There wa s

regular contact thereafter betwee n the parents and the soc ial work department with regular weekly supervised acc ess. Interim care

orders were granted by t he District Court t hroughout this period. The parents also a greed to and made themselves available for risk

assessments arranged by the HSE. T hese assess ments were completed and reports, findings and recommendations were furnished to

the HSE in late 2010.

6. The loc al social work department was advised by the mother that she was pregnant w ith B in late 2010. A child protect ion

conferenc e was held in spring 2011 to consider what act ion would be taken by the HSE. A decision was made to s eek an emergency

care order. The respondents married in Spring 2011. B was born towards t he end of Spring 2011. The c hild was not placed into care

immediately; t his appears to be due t o High Court proceedings which were instit uted by t he parents. An e mergency c are order was

granted by the District Court shortly aft er B was born 2011 and the c hild was taken into c are on. The respondent parents have had

regular supervised weekly ac cess with the t wo children since birth and from the evidenc e given to t he Court suc h acc ess has been

positive. The Guardian ad Litem was appointed by the District Court on an application from the HSE in Spring 2013 almost 4 ye ars

after A a nd over 2 years aft er B came into care.

7. The Court c ommenced hearing the applicat ion by the Child and Family Agency for a c are order pursuant to sec tion 18 of the Ac t of

1991 on in early summer 2014 and heard oral evidence over 19 days. Evidence was heard from witnesses from the applicant’s social

work team and from a number of professional witnesses who had c arried out assessments and had prepared reports on one or both of

the respondent parent s. Evidence wa s not given by t he respondents on legal advice. Evidence w as also given by t he Guardian ad

Litem. Following the c ompletion of the applicant’s c ase and on the co mmencement of the ev idence being given by the Guardian ad

Litem an applicat ion was made to the Court by the respondent s to exc lude evidence relating to historic documentation rece ived from

the United Kingdom where witnesses were not c alled to prove t his documentation. The Court gave a ruling where it found in the light

of the legal authorities that in all the c ircumstances it could att ach little or no weight t o the expert ev idence in the c ase relating to

historic documentation from the United Kingdome save t he court o rders dated late 2006 in respect of 2 children of the mother. The

first named respondent, in respect of which t he sec ond named respondent was the fa ther of one of those c hildren which had been

acc epted by the respondents. The Court’s at tention was drawn to t he written judgment of a Judge of the District Court in England

dated later 2006 and approved in spring 2007 in relation to t hese 2 c hildren when care and placement orders were made by the Court

in respect of the respondent mother and a parental responsibility order in respect of the respondent father. P ermission had been

granted by the District Court Judge of the Family Division of England and Wales in late 2009 for the loc al authority to disc lose the

case papers in these c are and placement proceedings relating to the 2 c hildren to the Irish Court, all parties and the respondent

father. T he Court ruled that it was dec lining to recognise this writte n judgment as no dec ision had been made in relation to this

judgment in acc ordance wit h the provisions of S.I. No. 112 of 2005 European Communities (Judgments in Matrimonial Matters and

Matters of Parental Responsibility) Regulations 2005, having noted the respondents object ion in this regard. The Court has disregarded

the historic United Kingdom documentation and t he cont ents of the judgment of the District Court in England in making its dec ision in

this cas e. However the Court was in a position t o have regard to a dmissions made or information given by the respondents t o the

social workers or other professional witnesses who carried out ass essments on the respondents.

8. From the evidence given in t his case t he Court finds the following facts relevant to its final decision based on t he evidence given

to t he Court;

The Respondent mother had two children when she lived in the UK, one in respect of which t he sec ond named respondent was the

father. While the mother was pregnant with her sec ond child, following an examination by two c onsultants a fter t he parents had

brought the c hild to the hospital, t he family were informed of findings which indicated t hat t he child had been sexually abused. This

child was subsequently removed into fost er care and t he respondents bec ame the subject matter of an invest igation by the police.

The respondents strenuously denied that t hey had abused t heir child and implicated a t hird party who had been minding the c hild

during the latter sta ges of t he respondent mother’s pregnancy when she had suf fered complications. Following the birth of t he second

child, this c hild was immediately taken into care and place d with a fos ter family with his/her sibling. The respondent mother had

regular supervised ac cess w ith her children after they had been taken into care. T he Court viewed a video recording of the f inal

acc ess of the mother with her two children and it is clear that this acces s was positive and there was a n excellent interac tion

between t he mother and her children. No perpetrator of the s exual abuse of the c hild has ever been identified and no person has ev er

been charged. Ultimately, afte r a hearing, where the mother was legally represented, t he District Court in England made a care order

in respect of both c hildren who were placed in care and a doption. The respondents did not appeal the o rder. Where the respondents

did not give evidence the Court is not in a position to make any finding as to t he reasons. However failure to a ppeal does not

constit ute a det ermining factor in this c ase.

9. Social services in the UK became aware of t he respondent mother’s pregnancy with A in Summer 2009 and convened a meeting

with both respondents. The respondents were told t hat the child would be taken into c are at birth. A Member of Parliament (MP)

advised them to leave t he country in advance of the birth and it appears that as a result of this advice the respondents c ame to

Ireland in mid summer 2009.

10. Having heard detailed legal submissions during the course of this c ase the Court deems that it is appropriate to set out what it

believes are the legal principles which apply in childcare c ases which formed the legal basis for its final determination in this case. T he

Court is grateful to the legal representatives of the parties and the Guardian ad Litem f or their comprehensive legal submissions in this

regard.

The Law

11. The Applicants made their application for a care order under the provisions of sect ion 18(1) (C) of the Ac t of 1991.

Sect ion 18(1) of the Ac t of 1991 provides:

“(1) Where, on the a pplication of the Child and Family Agency with respect to a c hild who resides or is found in its

area, the c ourt is sat isfied that

(a) the c hild has been or is being assaulted , ill-treat ed , or neglected or sexually abused, or

(b) the c hild’s health, development or welfare has been or is being avoidably impaired or neglected, or

(c) t he child’s health, development or welfare is likely to be avoidably impaired or neglecte d,

and that the c hild requires care or protec tion which he is unlikely to rec eive unless the c ourt makes an order under

this sec tion, the c ourt may make an order (in this Ac t referred to as a “c are order”) in respect of the c hild.”

12. In K.A. v Health Service Executive [2012] 1 IR 794 O’Malley J. states:

“The t erms of t he Act require that, in making a full care order, t he District Judge must be sat isfied that a specified

fact ual event or set of events has happened, is happening or is likely to happen and that the child, in brief: needs

the protec tion of the order.”

13. The manner in which the Ac t of 1991 is to be interpreted was explored in the case of Western Health Board v K.M. [2002] 2 IR

493 by McGuinness J. when she st ated as follows:

“I have already very briefly set out the history of t he enact ment of the Child Care Act , 1991. There c an be no

doubt that it is a remedial social stat ute, and was seen to be such by all who were affec ted by its provisions. Its

social and remedial importance was ac cepted by all, including this Court and more particularly the District Court,

which for many years had striven t o operate t he provisions of the Children Act, 1908, in a way which made sense in

the latt er part of t he twe ntieth c entury. This is borne out in the dec isions relied upon by co unsel for the Applicant

in the ca ses of T he Director of Public Prosecut ions (Houlihan) v. P.G. [1996] 1 I.R. 281 and M.F. v . Superintendent,

Ballymun Garda Station [1991] 1 I.R. 189. I would therefore acc ept the submission of the respondent that the

construc tion of t he Act of 1991, as a whole, should be approached in a purposive manner and that the Act , as

state d by Walsh J., should be c onstrued as widely and liberally as fairly can be done.”

14. Therefore the Courts in interpreting the Ac t as a whole must do so in a purposive manner construed as widely and liberally and as

fairly as can be done. However in doing so regard must be had t o the relevant const itutional rights of the child and the parties.

15. Sect ion 24 of the Ac t of 1991 states :

“In any proceedings before a Court under the Act in relation to t he care and prot ect ion of a child, the Court, having

regard to the rights and dut ies of parents, whether under the Const itution or otherwise, shall-

(a) regard the welfare of the c hild as the first a nd paramount co nsideration, and