Health Service Executive -v- TD & anor (Care Order on Consent - Sexual Abuse)

• Judge: Horgan P.
• Judgment Date: 16 March 2012
• Neutral Citation: [2012] IEDC 7
• Case Outcome: Approved
• Date: 16 March 2012
• Court: District Court (Ireland)

[2012] IEDC 7

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

TD & PM

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF A CHILD

16 March 2012

1. This is an applicat ion for a Care Order under section 18 of t he Child Care Act, 1991 in respect of a Child who is six years old.

2. The Child’s mother is the first named respondent and is 29 years of a ge. The Child’s father is t he seco nd named respondent and is

26 years of age. The parents are not married to one another and do not reside together as a couple. A psychological evaluation of

the mother indicates t hat she is emotionally unstable with a borderline level of intellec tual funct ioning with particular deficits in verbal

comprehension and perceptual reasoning. She also presented with signs of harmful alcohol dependence and related mental health

issues. A psyc hological evaluation of t he father indicat es that he is emotionally stable but presents with personality traits suggestive

of High Functioning Autism (HFA) and he also operates wit hin a borderline level of intellect ual funct ioning.

3. Both parents are separat ely represented by solicit or and counsel within these proceedings. The HSE are also represented by

solicitor and counsel and t he c hild was appointed a Guardian Ad Litem (GAL) to represent her separate interest in the procee dings

who has also instruct ed solicitor and c ounsel.

4. The Child came into c are following an Emergency Care Order on 11 June 2010 and an Interim Care Order was made on 18 June

2010. The Interim Care Order was extended o n 16 occ asions until 24 February 2012.

5. The c atalyst for the Child coming into care w as that a member of the public notified An Garda Síochána that a SIM card on a

discarded mobile phone had been found and c ontained video footage of w hat appeared t o be the Child performing oral sex on her

father; t he video recording was made by her mother. This information prompted An Garda Síochána to invoke sec tion 12 of the 1991

Act on 11 June 2010 and removed the Child from the c are of her maternal grandparents as they had se rious cause for c oncern t hat

there was a n immediate risk to her health, development, and welfare.

6. The mother came to the at tention of A n Garda Síochána previously in 2002, 2004, and 2007 for alcohol-related incidents . However,

there was no child protect ion activat ion arising from the incident on 28 April 2007. The PHN service did not raise any conc erns in

respect of the Child either. No complaints or co ncerns were raised by t he Maternal/Paternal family members prior to t he proceedings.

Equally, neither parent raised conce rns and allegations or sought support from the HSE before the inst itution of thes e proceedings.

7. The HSE allegations include the following:

a) That the Child was neglec ted by her mother in so far as her ove rall care of the child was haphazard in terms of

cleanliness, poor nutrition, poor dental ca re, failure to send her to playschool, failure to set routine and boundaries

for her, and failure to supervise her at all times;

b) That the Child was exposed t o her mother’s alcohol abuse and her father’s alcohol abuse;

c) T hat t he Child was physically abused by being slapped and indirectly abused by being exposed to domestic

violence; and

d) That the Child was sexually abused and charges in respect of sexual assault, sexual exploitation, and child

pornography charges pending against the mother and father; t he Child is displaying sexualised behaviours at sc hool.

8. A full list of Exhibits and Witnesses w as furnished to Courts Se rvice.

9. The Court w as informed on Monday that t he matter would proceed on c onsent however counsel for t he father c onsented on the

basis that while neglect was admitte d, and furthermore it was admitted that her client was responsible for highly inappropriate sexual

behaviour with the c hild, he nevertheless, denied that he perpetrated ‘sexual abuse’ as, under the Children First definition of ‘child

sexual abuse’, personal gratification on the pa rt of a perpet rator was a nec essary element of child sexual abuse.

10. Social Worker 1 gave evidence as per her reports at Tabs. 10 up t o the last report to Court and affirmed that the content s of her

Reports to Court we re true and ac curate and t hat her professional opinion was that the threshold criteria were met and cont inue to

be met pursuant to se ction 18(1)(a), (b), and (c) of the Childcare Ac t 1991.

11. She conc eded that the c urrent fost er carer was not the long term foster carer and that a relative foster c arer placement was

being assessed with t he mother’s half sibling and her partner had expressed a willingness to be relative f oster c arers and that the

assessment process required in that regard would be completed in April. She noted, however, t hat it w as ‘as long as a piec e of st ring’

as to when the Fos tering Committee would meet and consider whet her any of t he proposed Foster Care plac ements ‘matched’ the

child’s level of needs. If, f or whatever reason, the long term foster place ment of the c hild with a relative fost er carer is not approved

the mother was anxious that some other family member would be assessed a s a long term relative foster c arer and that a relative

would also to be as sessed as s uitable for ‘respite placements’.

12. Social Worker 1 also stat ed that play therapy would be organised for the Child in April this year and that the HSE will put such

therapy in place onc e per week for four months. T he HSE acc ept the recommendations of the GAL Report to Court in this c ontext.