TUSLA Child and Family Agency -v- ML & IPO

• Judge: Horgan P.
• Judgment Date: 05 February 2018
• Neutral Citation: [2018] IEDC 1
• Case Outcome: Approved
• Court: District Court (Ireland)

IEDC [2018] 01

THE DISTRICT COURT

DUBLIN METROPOLITAN DISTRICT

TUSLA CHILD AND FAMILY AGENCY

APPLICANT

AND

ML

FIRST NAMED RESPONDENT MOTHER

AND

IPO (FATHER OF child 1)

SECOND NAMED RESPONDENT FATHER

IN THE MATTER OF, CHILD 1

CHILD CARE ACT 1991 – SECTION 18 (1)

CARE ORDER

INTRODUCTION

1. This is an applicat ion for cost s by brought by Counsel instruct ed by solicitors of the se cond named Respondent father against t he

Applicants T usla, the Child and Family Agency (the Agenc y) who are represented by their solicitors.

2. Nothing is to be reported regarding this ca se which would serve to identify t he child or the parent s or the exte nded family in the

proceedings. These proceedings were heard in cam era and remain subject to Sect ion 29 and 31 of the Child Care Act , 1991.

HISTORY OF PROCEEDINGS

3. The mother had execut ed a voluntary Recept ion into Care Form the period of 4 weeks in respec t of her c hildren (Child 1 and Child

2). The respondent fathers of each c hild were in agreement wit h this course of act ion at t he time. However the mother then

withdrew her consent to t he Child 1 and Child 2 remaining in care.

4. The Applicant applied Ex Parte for short service of Emergency Care Order in respect of the c hildren the subject matte r of these

proceedings.

5. When the proc eedings came before the c ourt the Agency reached an agreement with t he Respondent mother and the fat her of

Child 1 and counsel for the fa ther sought and was granted cos ts of the day in t he circumstances prevailing in that regard. However

no agreement was reached regarding Child 2 and the Agency sought to proceed to hearing regarding the Emergency Care Order and

further sought an abridgment of time to fac ilitate the service of proceedings for an Interim Care Order (ICO) pursuant to Sec tion 17 of

the Child Care Act 1991 on the Respondent parents of Child 2, and this Order was granted. T he Court’s permission was sought under

s. 47 of t he Child Care Act 1991 to lift the “in c amera rule” to the extent neces sary to allow t he parents in these proceedings to be

assisted by a n Advocat e from an appropriate adv ocac y service and this was also granted. Both parents and legal representat ives

were present in Court for t he hearing of this matter. Both applicat ions under Sect ion 13 (1) and Section 17 (1) we re adjourned to

facilitate service by the Agenc y of t he ICO application and to enable t he Respondent parents t o instruct their legal representatives so

that t heir constit utional and procedural rights were protect ed. Both respondent parent s agreed, without prejudice t hat this child

would remain in care pending the det ermination of the proc eedings before the Court.

6. On the dat e of hearing of t he ECO & ICO application the Solicitor for t he Respondent mother sought to adjourn proceedings for an

Interim Care Order pursuant to Sec tion 17 (1) of t he Act and relied upon the ca se of CFA v McG and JC [2017 IESC] and KA -v-

Health Service Executive Ors (2012) in this context. He out lined that he did not have the o pportunity to t ake full instructions and

his client would be prejudiced if she w as not af forded this opportunity. He had been provided with a detailed Soc ial Work Report in the

course of the morning of t he hearing and he needed to t ake further instructions on t he issues arising. He submitted t hat were his

client forc ed to proc eed to defend the ICO applicat ion and an ECO application on the dat e of hearing in circumstances where she was

not able to instruct her solicit or fully, and bring evidence to support her c ase, it would be fundamentally unfair. The Solicitor for the

Agency indicat ed that there was very little material difference betw een the Soc ial Work Report served already, with that served on

the day of hearing, and while first Report dealt with t wo children the Sec ond Report dealt exc lusively with the c hild the subject

matter of thes e proceedings. T he case for an ICO and ECO was left stand t o enable the solicit or for the mother to obt ain more

complete instructions.

7. The Court w as advised that the Respondent father primary conc ern was t o maintain his relationship with the c hild to whom he was

securely at tached. The respondent parents were eac h parties t o proceedings under the Domestic Violence Ac t 1996 in a private law

matters in the family court and t hese issues overlapped to some extent with t he applications sought by the Agenc y.

8. The Court hea rd evidence from three social workers; OT, Social Worker, who was allocat ed in the period [date redacte d]; RMCM,

Social Worker, who was t he allocated social worker during [date redacted]; and DD, Social Worker, who was allocated t o the case

three months before the dat e when voluntary care agreement execute d by mother. The Court also hea rd the evidence of the

Respondent Mother and submissions made on his behalf by the f ather's counsel.

9. It was not in dispute that the mother experienced a c risis that prec ipitated the circumstances in which the mother requested t he

Agency t o receive her children into care on t hat date. Neither was it in dispute t hat t he mother was admitted to a psychiatric

hospital as a voluntary pat ient. T he circumstances in which this oc curred were disputed howev er. The mother's position was t hat she

was suffering from stress and anxiety and had s ought assistanc e from the Agency in the form of a short t erm respite c are placement

for the c hildren over the weekend. It wa s her case that she was denied that assistance and she was provided with a handwritte n

note outlining the st eps she should take t o support her over the weekend Friday to Monday of that week. She ass erted that this lack

of support c aused her to bec ome overwhelmed and this triggered her hospital admission. The relationship between both respondent

parents was disintegrating, t hey were involved in family law proceedings and had not worked out a compromise regarding the