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CC & anor -v- Health Service Executive & anor (Application to Discharge Care Order)
Neutral Citation:
[2011] IEDC 4
District Court Record Number:
Date of Delivery:
District Court
Judgment by:
Gibbons J.

[2011] IEDC 4






1 July 2011

1. This case came before the District Court by way of an application by the natural parents to discharge a Care Order made in respect of the Child 1, born in June 2000, and Child 2, born in March 2002. The history of this case is set out extensively in the social work reports, and indeed in other reports by the Guardian ad Litem (“GAL”) and the Psychologist.

2. Both parties essentially agree on the history of the case; therefore, there is no requirement for me to repeat what is already known and accepted. The Care Order herein was made on 16 of November 2004. In fact, the children were in the care of the Respondents for a longer period in that they were first so received on 12 February 2003. This application to discharge was first opened to the Court originally on 13 of October 2008.

Dates of Hearing
3. The dates the Court has recorded are as follows:

        1) 13/10/08 – 14/10/08: 2 days

        2) 20/11/08 – Application to Discharge: 1 day allocated

        3) 27/11/08 – for mention only to fix a date to discharge

        4) 09/12/08 – application to discharge: 1 day

        5) 18/12/08 – application to discharge: 1 day

        6) 06/01/09 – application to discharge: half a day

        7) 13/02/09 – application to discharge: half a day

        8) 23/04/09 – 24/04/09 application to discharge: 2 days

        9) 12/06/09 – for mention

        10) 10/07/09 – for mention

        11) 23/10/09 – for mention

        12) 04/11/09 – for mention

        13) 11/01/10 – 12/01/10 – application to discharge: 2 days

        14) 11/11/10 – application to discharge: 1 day

        15) 24/11/10 – application to discharge: 1 day

        16) 24/03/11 – for mention

        17) 09/05/11 – 10/05/11 – application to discharge: 2 days

        18) 23/05/11 – for mention

4. The court heard a number of witnesses, namely the mother, who is the first named applicant; the father, who is the second named applicant; the Psychologist, who was an agreed expert witness; Social Worker 1; the GAL; and Social Worker 2. I heard some of the witnesses twice because of the length of time the case was listed and because the Court wished to have updates with regard to the issues.

Length of Application
5. The reality of this application to discharge the Care Order is that it went on for too long and should have been set down for a number of days in order that it could be concluded in a timely fashion. Considering the timetable above in this case, I must accept that it is not good practice on the part of the Court to allow such cases to continue for as long as this has. Whilst there were some good reasons to delay the matter, for example, whilst the new care facility became involved, on that occasion it was by consent, ultimately it is for the Judge to control and manage the case and to ensure expedition in the hearing. This case was a review of the Care Order and at times seemed more like an Appeal of the original order. This case should have had a block of days and not allowed to drift as it has. The danger of such delay is that it could undermine and destabilise the children’s placement and possibilities. There is also the stress factor for parents who are waiting for the process to end. Attending a court hearing is a trying exercise for participants.

6. I have considered all the implications of the delay and I am satisfied that whilst it was not acceptable, there appears to be no evidence of any significant adverse effect on the children, the subject matter of the application. To repeat, by saying this, I do not do so with a sense of pride but with sense of gratitude and humility that such is the case. It means that the Court should not learn the lessons that should be drawn so that it is not repeated.

Summary of Applicants’ Case
7. This case is a difficult one for everybody concerned, particularly the applicants. The parents have rehabilitated themselves considerably, to such an extent that they have been described by the Psychologist — an expert agreed by both parties — as good parents. Indeed she even said that they could be good foster parents. The HSE, the respondents, do not disagree with this characterisation. They, the HSE, have returned to the applicants two other children already. The applicant parents naturally question that if they are deemed to be good enough parents for two of their children, why are they not deemed to be good enough parents for all four of them. This has resulted in them being suspicious of the HSE, if not distrustful.

8. I summarise their position and hope I am not misrepresenting it by saying that they state that when the mother consented to the Care Order, she was not legally represented. They say that the respondents, through the Social Workers, fostered the relationship with the foster parents, while refusing to extend access to the natural parents of the children or facilitate the bonding of the children with them, the children’s natural parents. Furthermore, the applicants question the whole issue of access and how it was handled by the respondents. The applicants state that by limiting access or allowing the child or children fail or refuse to attend access, the HSE and the children frustrated the parents from achieving sufficient bonding. They state that the respondents are of the view or allege that they are unsuitable parents and that they cannot care for their two sons now or indeed since 2006. It is the respondents’ position that they believe that the attachment of Child 1 and Child 2 is not a compelling reason to maintain and continue the Care Order. The applicants believe that the two boys have such resilience that they will be able to re attach to their natural parents if planned properly.

9. Furthermore, they believe that the Foster Parents being better off than they are is a major influence and factor in this case. It is submitted that Child 1 and Child 2 are taking the short-term view when they say that they want to stay with their Foster Parents. Little weight, they submit, should be given to their wishes in this case and that the main focus should be on the best interests of the children. The wishes of the children in this regard are the wishes of very young children and thus we are to infer that little cognisance should be taken thereof. The applicants suggest that the question of finance comes into the equation in that the foster parents are paid to care for their children. With respect as to when and how the children should return, they state that they accept it will be on a phased basis and could take up two years.

10. They do not accept the independence of the GAL and in fact believe that she is totally in favour of the foster parents. They claim that the GAL is not an expert witness and that the GAL’s report does not properly reflect or consider both sides of the issue; thus, they claim that it should be viewed critically by the Court.

Summary of Respondents’ Case
11. The Respondents seek the dismissal of the application to discharge the care Order and say that it is in the best interests of the children to do so. In their submission, they refer to the nature of the proceedings and the criterion the Court should apply in making its determination. They further state that the welfare of the children is the first and paramount consideration. It is the right of the Court to intervene and strike the balance between the rights of the children and the rights of their parents.

12. The Respondents outline that the children are happy and well settled in their placement. They say that the evidence the court heard clearly sets out the position. The agreed expert witness, the Psychologist, testified that the best interests of the children dictated that they stay in care and that is most compelling evidence. The HSE believe that it is necessary that Child 1 and Child 2 stay in care so as their welfare is not impaired. The wishes of the children are clear in that they say that they want to stay in care. This is one the factors that the Court must take into account when considering the matter. They state that evidence heard by the Court clearly indicates that it must conclude the children should remain in care and that it is in their best interest and welfare that they should.

13. The Court heard extensive evidence and submissions — the latter, both orally and in writing. There were also very comprehensive reports submitted and circulated which were very relevant. The main witness was the expert Psychologist who gave evidence twice as did the GAL and the applicants. In essence, the agreed expert clearly stated in her evidence and recommended in her report that Child 1 and Child 2 remain in the care of the HSE. She gave her evidence in a very fair and balanced manner, comprehensively reviewing the relevant issues involved. Indeed, she was most sympathetic to the situation the applicants found themselves in. She raised very important matters with respect to the placement of the children and how the Respondents should manage the care placement. Over a period of two and a half years, that she was involved in the matter, she maintained her opinion that the children should remain in the care of the HSE in the current placement. She went further and said that the applicants were good parents. So good in fact, that she would believe that they could be foster parents. She was comprehensively cross-examined about this matter. She did not resile from her opinion at any time over the years. Not only did the agreed expert make this recommendation, the GAL — who was appointed by the Court to act as an independent voice of the children — also supported the continuation of the children in their current care placement. The allocated Social Workers stated that the children would be better served if they remained in the care of the HSE in this placement.

14. This creates an enormous difficulty for the Applicant’s case. Their situation is further complicated by the fact that there is a bad relationship between them and the foster parents. This is more so in the case of their father, as the mother appears to accept the foster parents more easily and wishes to maintain a relationship as it is the children’s interest. The father gave evidence extensively as did the mother and very clearly set out their reasons for the Discharge. It is further clear that they are genuine in their wish to reintegrate their family. The evidence is, I repeat, that they have rehabilitated themselves into good enough parents.

15. There is no doubt that the management of the placement vis a vis the applicants could have been better handled and is indicated by the evidence of the applicants and the Psychologist. The HSE will have to carefully consider this and consult with the Psychologist about rebalancing the correct relationship that should exist between the Foster Parents and the Birth Parents in a case like this. As foster parents, the current ones are a very good, and an attachment has developed between the children and them. This is exactly what should happen in such placements when a full care order is made. Not only has an attachment developed, but it has been described by the psychologist, the Guardian ad litem, and the social worker as a primary attachment. We heard very detailed evidence about the positions of Child 1 and Child 2. Child 1 needs very careful nurturing and assistance. He needs further specialist assessment. Child 2, on the other hand, seems to be much more independent and able to cope. The parenting of the foster parents has been reasonably successful in all of the circumstances.

16. In fact, all of the witnesses were closely examined and cross-examined. The applicant parents said that they had overcome their addictions, the father said that he had detoxed himself, and the mother said that she was on a methadone programme. There was a mention of cannabis smoking though. However, they are a couple but not married and had an on and off relationship but are now living together permanently. The father mentioned originally that they planned to get married in March 2009. This appears not to have happened but in total they are eleven years together.

17. The applicants moved their accommodation to a location near the foster parents. The reason for this is that they wanted to be close to where their children lived so that they could have measurably more access and to make it easier. The father does not trust the foster parents or the HSE; he said this on more than one occasion. He also said that he thought that something was said to Child 2 that prevented him coming to access. In effect, I think he believes that the foster parents are buying the affections of Child 2 and indeed Child 1. Both applicants presented as very thoughtful, serious, and committed people. One cannot blame them for wanting to reintegrate the family, and indeed, one can only admire the commitment they have now to their children. The father’s view is simply that since their other two children have been returned to them, there is no reason why Child 1 and Child 2 should not return. They have the view that the foster parents having no children of their own want to keep the children and that the children would be better off with them, their natural parents. The applicants stated that they have the means and the capacity to re-integrate the children into their family and do what is necessary to ensure a proper system of re attachment takes place. The applicant’s were absolutely honest in their evidence by being open about the difficulties and problems that they had encountered during their lives.

The Legal Position
18. I received submissions from both sides. I have to say candidly that the submission of the HSE is correct in law with regard as to how the Court legally must approach this issue. The applicants, in their submission, did not in my view set out the legal position clearly or correctly. I accept that cases quoted such as N v HSE [2006] IESC 60 raise serious constitutional matters with respect to the position of parents and their children. The facts of that case are entirely different to this case and give rise to different considerations. There is no doubt that the Courts must have regard for Article 42.5 and its concept of ‘exceptional’ circumstances. The applicants’ submission to me read more like that relating to an appeal rather than that of an application for a discharge of a care order. I believe that the Application has incorrectly characterised the case as a contest between the applicants as the birth parents and the Foster Parents. It is nothing of the sort — I can understand why the applicants chose to see it that way, but it is the incorrect view.

Section 24 of the Child Care Act is crucial to the legal position herein and I quote it:

        ‘In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall –
            (a) regard the welfare of the child as the first and paramount consideration

            (b) in so far as practicable give due consideration having regard to his age and understanding the wishes of the child’.

19. The Supreme Court has, in G v An Bord Uchtála [1980] 1 IR 32, acknowledged the personal rights of the child guaranteed under Article 40.3 of the Constitution. This principle is applicable to this case. McD v PL [2007] IESC 28 clearly is the authority for the proposition that the essential issue for a court is the welfare of a child. In FN and EB v CO, HO and EK [2004] 4 IR 311, Finlay Geoghegan J stated that the court shall regard the welfare of the child as the first and paramount consideration. The Respondent is correct in reminding the court what was said in the Southern Health Board v CH [1996] 1 IR 220, namely: ‘[w]e must, as judges, always harken to the constitutional command which mandates, as prime consideration, the interests of the child in any legal proceedings.’

Court’s Ruling
20. The Court has in these types of cases, and particularly in this one, a dilemma in seeking to balance and calibrate the interests of the parents and the children. This is particularly so where I heard evidence that the parents are good parents. The evidence is that the parents were not able to parent their children for a considerable period of time at a crucial time in their children’s lives. It was because of this, the children were received into care. In fact, Mr PS had no contact with them for a period of 18 months. In fairness to him, however, he explained this in evidence and his determined struggle to escape from addiction.

21. I quote from the Applicant’s submission to illustrate a further misunderstanding on their part:

        ‘[i]t is the case in my respectful submission, that the HSE through the Social Workers fostered the relationship with the [current foster parents] while refusing to extend access to the natural parents of the children or facilitate the bonding of the children with the their natural parents’.
22. Children do not freeze in time when they are placed in care. They continue to grow and develop in their new setting. It is hoped and expected that the foster parents will be able to love, cherish, and care for these children by welcoming them into their families and homes and to share their lives with them. This is what has happened here. When Child 1 and Child 2 needed such care, they received it not from their birth parents but from their foster parents. It is hard for the Applicants to hear this, but I must be clear. The HSE is not required or expected to develop the relationship with birth parents who, often for no fault of their own, are unable to care for their children. They have to do the exact opposite, that is to develop and deepen the relationship of the children with their new family and carers. They maintain the relationship with the birth parents but in a new context.

23. A Full Care Order must mean what it says if it is to do right by the children. The most successful placements work in this environment. The role of the HSE when children are in care on a Full Care Order is to ensure that they develop an appropriate relationship with the foster carers and it would be counterproductive if the HSE were to try and develop parallel relationships with the birth parents. The HSE should ensure the maintenance of relationship with birth parents whilst developing the new relationship of the children.

24. Children develop at a pace which parents need to match. In care arrangements, they often do so at a faster pace than the birth parents are able to remedy their position and as in this case, to overcome their addiction. The applicant parents are suggesting that the HSE should have known and should have prepared for the reintegration of Child 1 and Child 2 when there were returning the applicants’ other two children. This might be correct if the children were frozen in time. They were not. They had moved away from their attachment to their birth parents over 3, 4, 5, and more years. They developed a primary attachment with their foster parents. It would be seriously damaging to the children, according to the evidence of the expert witness and the GAL, for the children to be returned at this time to the applicants.

25. The Applicants must try to understand that the issue is not their capacity any more but the situation Child 1 and Child 2 find themselves in for no fault of their own. The Court must prioritise the interests of the children over that of the parents, as much as one would wish to see the reintegration of the family. The court was told that the applicants, difficult though it maybe, must reassure the children and give them permission to lead their lives in this current arrangement. The children must be free from guilt, suspicion, and uncertainty. The applicants must do this if they have their children’s best interest at heart, painful though this prospect will be.

26. I have to say to the parents, the Court would have hesitation in discharging the Care Order if the evidence was that it was in the best interests of the children. As a Judge, I repeat that I must put the children’s interest as my first and paramount concern; thus, I refuse to grant this application and formally dismiss it.

27. One of the more regrettable aspects of this case as I have stated is the difficulty between the father and the foster parents. I referred to this earlier, and indeed, in the legal submissions by the applicant father, this was evident. This is not a custody battle between the foster parents and the birth parents. The foster parents are agents of the HSE and it is the case that the HSE have much work still to do with the foster parents, but that is a different issue altogether.

28. I cannot let it pass not to comment about the GAL. As far as the court is concerned, it accepts the professionalism and integrity of the Guardian ad Litem. The GAL is a most experienced Guardian who has assisted this Court and other Courts, including the High Court, and that she has performed functions as the act requires without fear or favour and more importantly, communicated to the Court in a most careful sensitive way the views of the children. She is also required to give her opinion as to what is in the best interests of the children in accordance with her training and qualifications. This does not mean that the GAL ought not be cross-examined or questioned. The opposite is true. Indeed, the views of the children have been corroborated by persons other than the GAL and the Court should consider these matters carefully. At the same time, children of the age Child 1 and Child 2 could not be said to have formed the requisite level of maturity that will allow them to weigh up matters as an adult should. Nevertheless, is clear that the children wish to remain in the current care arrangement. This is hugely important when it is taken together with the fact that their primary attachment is with the foster parents. The GAL was not giving evidence as an expert as such but in her role under the Child Act as a Guardian ad Litem.

Section 47 Directions
1. I want the HSE to look carefully as I have said herein at the relationship of the Applicants with a view to establish a proper accommodation between them. It may well be that an experienced mediator might assist in this process.

2. Accordingly, the HSE must prepare a particular access plan with regard to the evidence the court heard and consult with the Psychologist in furtherance of this objective. The plan to be prepared and available to the Court. The HSE must explore an increased role and participation of the applicants in the lives of their children.

3. Another regrettable feature of the case is that is the demise of the care facility’s, in particular with respect to the work between the foster parents and applicant parents. Individual therapy of good value was engaged with Child 1 and Child 2 so that they could be allowed to talk about their situation and the relationship with both sets of parents. Maybe it had come to its natural end. The applicants must be commended for their commitment thereto.

4. In the event of the case becoming unallocated, the matter under section 47 must revert to the Court.

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