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Judgment
Title:
Health Service Executive -v- SM (Supervision Order - Access Disagreements)
Neutral Citation:
[2011] IEDC 9
District Court Record Number:
N/A
Date of Delivery:
11/10/2011
Court:
District Court
Judgment by:
Horgan P.
Status:
Approved

[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 application for a Supervision Order in respect of two children, Child 2 and Child 3. There is also a cross application for Custody and Access Orders in respect of the children and an application by the father for a Guardianship Order. The Guardianship Order extends to one other child (Child 1) who is formally in the care of the HSE under a Care Order although placed in a kinship care placement by the HSE with her father and his partner by the HSE.

2. The children’s mother is the applicant and she is represented by her solicitor and counsel in the proceedings.

3. The child’s father is not married to their mother. He is not the children’s legal Guardian although he has a close and caring relationship with them. He is residing with another party at this time. He is represented by his solicitor in the proceedings and supports the HSE’s application for a Supervision Order in respect of the two children, Child 1 and Child 2, currently in his care. He seeks a formal order for custody in respect of these children and an order regulating access by their mother. His guardianship application extends to all three children.

Background
4. The couple’s first child, Child 1, is in HSE care pursuant to an Care Order under section 18 Child Care, Act 1991. The mother and father consented to the Care Order. The HSE was obliged to seek the assistance of the Gardaí to remove Child 1 from her home into their care in accordance with the Care Order. A number of Gardaí assisted at Child 1’s removal from her mother’s home and what occurred in this context can only be described as an unfortunate melee (which mother video recorded on her phone).

5. Child 1 ran away from her father’s care twice before the making of the Care Order. On the first occasion, she left her placement with her father to go to the shop and then went to her mother. The second occasion when Child 1 ran away was before the Care Order was made. She is now placed in non-relative foster care. She is not settled in this placement.

6. There is an intractable disagreement on the issue of access between the mother and father and his partner; unfortunately, it has taken time for the HSE to untangle the circumstances due to the complexities of the case and due to concerns 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 criteria of section 19(1)(a), (b), and (c) in respect of each child. In essence, her evidence was that the children had been neglected when in the care of and residing with their mother. The nature of this neglect related to her general care of them. The two younger children have severe speech and language development delay. There was also a concern regarding their nutritional intake while in her care. They had a poor school attendance record.

8. Her professional view was that the mother was mentally unstable and could create chaos and use deflection to distract from her deficits and the children’s welfare suffered as a result.

9. She was concerned regarding parental interactions (in the presence of the children) in the sense that they were negative in the extreme and impacted on the health, development, and welfare of the children. She was generally satisfied with the care of the children by the father and his partner.

10. It was also her evidence that Child 1 was the subject of an Interim Care Order and was placed by the HSE with the father. The father facilitated access by the mother to the children. The mother was unhappy with these arrangements.

11. The mother consented to a full care order regarding Child 1 on 3 November 2011 in the context that while in the mother’s care, he ran away to reside with his father. It was her view that the father loves the children, as does his partner. Unfortunately, the housing conditions of the father and his partner are very cramped and the HSE has tried to help resolve this issue by making representations to the Housing Authority to support the father and his partner in securing alternative housing or a private rental subsidy to acquire private housing. The father and his partner are therefore on a list and are also trying to locate a private house near the children’s schools.

12. It was her view that the mother struggles with her mental health difficulties and she apprehended that there is a possibility that the mother encouraged Child 1 to be oppositional when in the care of her father and his partner. Child 1 made a physical abuse allegation against father and partner.

13. It was her evidence and her professional opinion that the HSE concerns met the criteria to justify State intervention to satisfy the threshold criteria of section 19 of the Act.

14. The mother in evidence contended that the accommodation in which the children resided with their father is unsatisfactory and there are health and safety concerns in this context. She acknowledged having a mild intellectual disability and that she mistrusts the HSE. Her barrister outlined her principled opposition to the HSE application for a Supervision Order, under section 19 of the Child Care Act 1991. She elucidated all of the mother’s concerns and misgivings regarding the children’s care while residing with the father and his partner. She was concerned that she did not have enough access, or quality access and that she did not have a timely flow of information regarding the welfare of the children either in the care of the father or in the care of the HSE. The mother wished it to be recorded that she wanted more time with Child 1 to be able to take her overnight or to a movie, she wanted a flow of information regarding her three children and she has significant health and safety concerns regarding her younger children’s current placement with their father and his partner.

15. The father did not give evidence in respect of the Supervision Order application and he had previously also supported the HSE application for a Care Order in respect of Child 1.

16. The GAL gave evidence supporting her detailed Report to Court, which supported the making of Supervision Order and outlined the difficulties concerning the care of and access by the mother with the children in the circumstances of this case. She also gave evidence as to the wishes and feelings expressed by the children.

17. Having heard the evidence of the HSE, the mother, and the GAL on behalf of the children, I make a Supervision Order in respect of Child 2 and Child 3 for a period of six months. Given that the threshold criteria was met and that, on the evidence tendered, the best interests required the making of the Order to secure their welfare, an Order for six months is proportionate to secure their interests.

18. I adjourn the issues of Access/Guardianship to enable progress to be made concerning the housing issues and until the parties had further opportunity to engage in Mediation/Dialogue in the issues.

Section 47 Directions
19. The HSE is to take all steps necessary to provide an advocate for the mother to enable her to meaningfully engage in all meetings, conferences, and discussions regarding her children and regarding access to her children, and in light of her mental health difficulties.

20. The HSE is to host a case conference as soon as is practicable and facilitate constructive dialogue between the mother (with the assistance of her advocate), the HSE Social Worker, the father, and the children’s GAL to discuss child centred arrangements. Parents are to attend assisted Mediation to create a comprehensive parenting Plan regarding their children, which respects their therapeutic needs.

21. Frequency of access in the intervening period to be at the discretion of the HSE within the parameters of section 37 of the Child Care Act, 1991. Access is currently supervised.

22. The Interim Care Order regarding Child 1 will expire on 1 December 2011 and the custody/access cross applications and Guardianship Application are adjourned for mention only to that date with a view to fixing a hearing date in January if Mediation/Dialogue directed by the Court does not produce a mutually consensual solution which the GAL is content to support.











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