Health Service Executive -v- SM (Supervision Order - Access Disagreements)

Case OutcomeApproved
CourtDistrict Court
Docket NumberN/A
JudgeHorgan P.
Judgment Date10 Nov 2011
Neutral Citation[2011] IEDC 9
[2011] IEDC 9
AN CHUIRT DUICHE THE DISTRICT COURT
HEALTH SERVICE EXECUTIVE
APPLICANT
-AND-
SM
RESPONDENT
CHILD CARE ACT, 1991— SECTION 19 AND 37
GUARDIANSHIP OF INFANTS ACT 1964 — SECTION 11, 6A
IN THE MATTER OF CHILD 2 AND CHILD 3
10 November 2011
1. This is an applicat ion for a Supervision Order in respect of t wo children, Child 2 and Child 3. There is a lso a cross a pplication for
Custody and Ac cess Orders in respect of the c hildren and an applicat ion by the f ather for a Guardianship Order. The Guardianship
Order extends to one ot her child (Child 1) who is formally in the c are of the HSE under a Care Order although placed in a kinship care
placement by the HSE with her father and his partner by t he HSE.
2. The c hildren’s mother is the applicant and she is represented by her solicitor and counsel in the proceedings.
3. The c hild’s father is not married to their mother. He is not the c hildren’s legal Guardian although he has a close and c aring
relationship with them. He is residing with another party at t his time. He is represented by his solicitor in the proc eedings and
supports the HSE’s application for a Supervision Order in respect of the two c hildren, Child 1 and Child 2, currently in his care. He
seeks a formal order for custody in respec t of these c hildren and an order regulating acc ess by their mother. His guardianship
application extends t o all three children.
Background
4. The c ouple’s first c hild, Child 1, is in HSE care pursuant to an Care Order under section 18 Child Care, Act 1991. The mother and
father c onsented t o the Care Order. The HSE was obliged to seek t he assistanc e of t he Gardaí to remove Child 1 from her home into
their care in ac cordance with the Care Order. A number of Gardaí assisted at Child 1’s removal from her mother’s home and what
occ urred in this context c an only be described as an unfortunate melee (which mother video recorded on her phone).
5. Child 1 ran away from her father’s care tw ice before t he making of t he Care Order. On the first oc casion, she left her place ment
with her father t o go to the shop and t hen went to her mother. The sec ond occasion when Child 1 ran away was before the Ca re
Order was made. She is now placed in non-relative f oster c are. She is not sett led in this placement.
6. There is an intrac table disagreement on the issue of acc ess between the mother and father and his partner; unfortunately, it has
taken time for the HSE to untangle the c ircumstances due t o the c omplexities of t he ca se and due to conc erns and allegations raised
by the mother.
Evidence
7. A HSE Social Worker gave evidence in support of her report to Court and dealt with the threshold c riteria of sect ion 19(1)(a), (b),
and (c) in respec t of each c hild. In essence, her evidence was that the c hildren had been neglect ed when in the care of and residing
with their mother. The nat ure of this neglect related t o her general care of them. The two younger children have severe speec h and
language development delay. T here was a lso a conc ern regarding their nutritional intake while in her care. T hey had a poor sc hool
attendanc e record.
8. Her professional view was that the mother was mentally unstable and could create chaos a nd use deflect ion to distrac t from her
deficits a nd the c hildren’s welfare suffered as a result.
9. She was c oncerned regarding parental interact ions (in the presence of the c hildren) in the sense that they were negative in t he
extreme and impacted on t he health, development, and w elfare of the children. She was generally satisfied with the c are of the
children by the fat her and his partner.
10. It was also her evidence that Child 1 was the subject of an Interim Care Order and was plac ed by the HSE with the fat her. The
father fac ilitated ac cess by the mother to the c hildren. The mother was unhappy with these arrangements.
11. The mother consent ed to a full care order regarding Child 1 on 3 November 2011 in the c ontext that while in the mother’s care, he
ran away to reside with his father. It was her view t hat t he father loves the c hildren, as does his partner. Unfortunately, t he housing
conditions of t he fat her and his partner are very cramped and the HSE has t ried to help resolve this issue by making representations
to t he Housing Authority to support t he father and his partner in sec uring alternative housing or a private rental subsidy to acquire
private housing. The fat her and his partner are therefore on a list and are also trying to locate a private house near t he children’s
schools.
12. It was her view that t he mother struggles with her mental health difficulties and she apprehended that t here is a possibility that
the mother encouraged Child 1 to be opposit ional when in the care of her father and his partner. Child 1 made a physical abuse
allegation against father and part ner.
13. It was her ev idence and her professional opinion that t he HSE concerns met t he criteria to justify Stat e intervention to satisfy
the threshold c riteria of sect ion 19 of the Act.
14. The mother in evidence c ontended that the acc ommodation in which the c hildren resided with their father is unsatisfac tory and
there are health and sa fety c oncerns in this context. She ac knowledged having a mild intellectual disability and that she mistrusts t he
HSE. Her barrister outlined her principled opposition to the HSE application for a Supervision Order, under sect ion 19 of the Child Care

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