Health Service Executive -v- ON & anor (Care Oder - Corporal Punishment0

• Judge: Horgan P.
• Judgment Date: 01 November 2011
• Neutral Citation: [2011] IEDC 8
• Case Outcome: Approved
• Date: 01 November 2011
• Court: District Court (Ireland)

[2011] IEDC 8

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

ON AND OE

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 1 AND CHILD 2

1 November 2011

1. This matter c ame before the Court as t wo separate sets of proceedings heard over t hree days.

2. The f irst set of proceedings related to the Parents and their first-born son, Child 1, and the s econd set of procee dings relate to

their first-born daughter, Child 2. Child 1 is now seventeen y ears old since July and Child 2 is now fourteen ye ars old since April.

3. Both parents are from Country 1 and arrived separately t o Ireland in 2001. In February 2004, Child 2, then a ged 7 years, c ame to

Ireland travelling with a f amily friend and Child 1, then aged 10 years, followed in July 2004 again acc ompanied by a family friend.

They we re met at the airport by their parents. Both Child 1 and Child 2 resided with parents and their two Irish born siblings, Child 3

and Child 4 (who were babies).

4. The f amily came to t he att ention of the HSE as a result of a complaint to t he HSE by the principal of the school where Child 1

(then 12 years old) was attending. Child 1 was presenting with diffic ult behaviour at sc hool which was brought to t he atte ntion of is

parents on the 19 April 2007. Naturally, both of his parents w ere upset and off ended by the reports of his misbehaviour. The sc hool’s

and HSE’s concerns arose bec ause of the way Child 1 was disciplined for that misbehaviour.

5. The HSE Soc ial Work Team Leader 1’s report of September 2008 referred to a home visit c onduct ed by Social Worker 1 and Social

Worker 2. However, neither Social Work Team Leader 1, Social Worker 1, nor Social Worker 2 were called to give evidence in support

of the report.

6. Child 1 was brought to hospital on 23 April 2007 and he was examined by the Consultant in Paediatrics Emergency Me dicine. The

Consultant in Paediatrics ga ve evidence in support o f her Report dated 25 April 2007. It was her evidence that w hen she examined

Child 1, he presented with bruises as set out in the body map which was c onsistent with the explanation given to her both by Child 1

and by his mother. Neither father nor mother conceded t hat the body map reflects injuries which Child 1 suffered and they claim that

the absenc e of photographs (which were t aken but subsequently lost) indicat es a lack a proof and est ablish a conspiracy on t he part

of the hospital and HSE. Furthermore, the mother denies giving a history to the Consultant in Paediat rics as set out in her Report.

Arising from this incident, soc ial workers became involved with the family to help them establish a more effec tive and less physic al

form of discipline for Child 1, although what t hat involved is not clear from the Reports provided to t he Court. In any event , the f ile

was c losed in July 2008.

Reason for Child 1 Coming into Care

7. On Friday 26 September 2008, Child 1, then aged 14 ye ars, presented himself at an Out of Hours Service of a Residential Care Unit.

He indicated that he was afraid to go home as he was in trouble at sc hool and feared punishment at home. He made serious

allegations of being repeatedly physically c hastised and ridiculed by his fat her. Child 1 said that t he last punishment he received was

on Wednesday 24 Septe mber and refused to return home.

8. Child 1 was again examined by the Consultant in Paediatrics and her report of the 7 Oc tober 2008 and body map set out her

findings of injury which, in her professional opinion, were consist ent with t he history given.

9. The rest of the family’s children were examined by the Consultant Paediatrician in Paediatric Care, however nothing medically

untoward was fo und.

10. It is co mmon case that Child 1 was presenting, at home and in school, with difficult behaviour. T he Social Work Report Social

Worker 3 and Social Work Team Leader 1 dated 9 February 2009 notes t hat Child 1 was also presenting with diffic ulties for his fost er

mother, notwithstanding his apparent emotional reliance upon her when hospitalised. It also notes the c o-operation of his parent s in

reinforcing behavioural boundaries for him at t hat t ime. His parents have also engaged in the ‘incredible years’ parenting course and

embarked on the fo rensic assessment with t he Clinical Psychologist.

11. Long Term Social Workers, Social Worker 4 and Social Work Team Leader 2, became involved in the case in April 2009. The power

struggle between f ather and son bec ame a feature at that t ime. Unfortunately, positions became entrenc hed. The dec ision to move

Child 1 to a residential unit rather than enc ouragement towards family reunificat ion appears to have ent renched divisions. Child 1

moved school in October 2009. His parents never visited him in the residential unit, and Child 1’s visits home were problematical at

times. He also had to c ome to terms with the birth of his youngest sibling, Child 5, in 2009. The following year start ed with the state d

desire by the parents for reunification with Child 1. The HSE set out a road map, which would need t o be followed in this regard

(Report of 25-27 January 2010 signed by Social Worker 4 and Social Work Team Leader 2). This was translated t o ensure that there

would be no misunderstanding of what was required by the HSE. Child 1 was also experiencing difficulties in his placement and he

moved to another residential unit in February 2010. Unfortunately, this enta iled another school move for Child 1.

12. Child 1’s behaviour became more unmanageable and defiant to the c onsternation of his parents w ho attributed his defianc e to

being in the care of the HSE where he is given more freedom that he c an handle. A clear c lash of cultures w as apparent bet ween

what t he parents felt was appropriate and what the HSE felt w as acc eptable. The meeting in the family home on 17 of February

proved particularly destruct ive to repairing the relationship between fat her/son and fat her/HSE. Social Worker 4 formed the view t hat

the behaviour of bot h father and son wa s quite similar when roused to anger or frustrat ion.