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High Court to consider case stated by District Court on obligations of State to mother with intellectual disability
In late 2017, the District Court in a provincial city heard an application by the Child and Family Agency (CFA) for a two-year care order for a period for an infant, on the basis that the mother could not meet the child’s needs due to an intellectual disability. Her solicitor challenged the application on the basis that the CFA had not undertaken a full and comprehensive assessment to identify the mother’s strengths and needs.
The Child Care Law Reporting Project was presented for two short hearings in late 2017 and was provided, with the court’s approval, with a copy of submissions to the court made by the CFA and the mother’s legal representative.
The social work report said: “The mother greatly loves her daughter… and is very committed to her contact with her,” however, she was not able adequately to meet the child’s needs due.
The parents were known to the social work department while they were growing up. The CFA asserted that both parents experienced high levels of trauma and adversity in their early childhoods which had impacted on their overall social functioning and family relationships. A cognitive assessment, conducted in early 2017 found the mother’s functioning to be in the mild intellectual disability range and showed a marked difference in her level of comprehension compared to other females of her age.
In late November 2016 a child protection referral was made by a maternity hospital to the CFA in relation a pregnant woman on the grounds of domestic violence. Given the short timeline it was not possible to convene a pre-birth case conference. In mid-December 2016 (prior to the birth of the child), the parents were referred by a social worker to a residential Parent and Infant Unit in relation to concerns about their ability to parent due to “intellectual disability and their emotional and social behaviour”.
The child was born in December 2016. On being discharged from hospital, it was agreed that the mother and baby would live with the mother’s family for a three week period as a bridging arrangement until they were admitted to the unit. During this period the family were visited at home by support services. In mid-January 2017, the mother and baby were admitted to a residential assessment unit for a 12 week assessment. The CFA noted that no care order application was made until the assessment at the unit was completed.
In late April 2017 on their last day at the unit, the CFA secured an interim care order (ICO) on consent and the child was placed in a foster care. Since that date the child has remained in care with the same foster carer under extensions to the ICO. The social work report stated that the child was doing well, her needs were being met and she was being well cared for by the foster carer. Since the child was placed in care weekly access has taken place between the child and her mother.
The CFA solicitor said the mother had been referred to the national advocacy service in February 2017 but they did not have capacity to take her on at the time. The service had recently made contact with the mother.
The father had acknowledged a history of domestic violence within a previous relationship and the mother had reported domestic abuse by the father in the course of her pregnancy. However, on admission to the unit both parents denied the presence of domestic violence within their relationship. After three weeks at the unit, the father’s placement was terminated due to concerns for the mother’s physical safety. To date, the father had not sought access with his daughter nor taken no part in these proceedings. The parents’ relationship was now ended.
However in April 2017 the unit alleged that the mother was still in contact with the father and was not being honest about it. The CFA considered the mother to be parenting alone. The father had a child from a previous relationship but had no contact with that child who was also in the care of the CFA.
While at the unit, the mother was provided with an “exceptionally high degree of support”, including support with basic care for the baby and practical planning tasks. Six weeks into the placement in March 2017 the mother was told there were concerns regarding her ability to care for the baby and if she were to parent her child she would need a significant amount of support. In response, the social worker attempted to convene a family welfare conference but the mother struggled to identify potential invitees and indicated that there was nobody in her family who could provide the level of support that was required.
The unit issued a final assessment report. It stated that during the placement the mother was “open and willing to engage”. However, the unit had “significant concerns with regards to the impact of her cognitive profile on her parenting in terms of attunement and physical safety.” The mother “struggled with some of the most basic aspects of [the child’s] care” such that “without the scaffolding provided by the unit team, [the child’s] needs would not have been met in a consistent and safe way.” The report concluded that the mother “does not have the capacity to provide a safe and appropriate level of parenting to her daughter to facilitate a reasonable emotional and physical developmental trajectory.”
Child Protection Conference
In April 2017, the CFA held a child protection case conference at which a number of protective and risk factors were identified. The unit’s assessment report was a key source of information. The professionals present at the conference agreed the child was at an on-going risk of significant [unintentional] harm in the care the mother and a decision was made to seek a care order.
In relation to access with the child who was now in care, the September 2017 the social work report concluded that the mother needed “a high level of prompts and guidance at each access and was never ‘without staff presence for longer than 10 minutes’, with staff being always within earshot.”
The mother’s family indicated that although they wished to be supportive they were not in a position to care for the child at this time. They “could not be there 24/7”. In September 2017, several family members were assessed by the CFA as potential foster carers but such a placement was not progressed.
In July 2017, the court commissioned a consultant psychologist, Expert A, to prepare an independent report under section 27 of the 1991 Act. The aim of the report was to set out “what supports if any, would be sufficient and necessary to allow [the mother] to parent her daughter on a full or part time basis”. The report was submitted to court in mid-October 2017 by which time the care order proceedings had already begun. The psychologist did not dispute the unit’s finding that the mother needs a high level of care to enable her to parent her daughter adequately, however, he challenged the focus of the assessment. The psychologist mooted, but did not recommend, 24/7 type care.
The psychologist’s report made a series of recommendations in relation to the mother’s personal development need and supports for parenting and access. The CFA solicitor reported that progress had been made in implementing some of these recommendations.
The social work report of October 2017 concluded that for the mother to parent she would need a 24/7 residential type setting or a shared care arrangement.
The CFA ruled out a shared care arrangement as an option in this case as it would not “adequately ensure [the child’s] needs are being consistently met, in addition to ensuring her safety”. It also noted that the mother did not have “adequate family support to support her parenting on a part time basis”.
It was noted that there was no 24/7 setting available in this State. The CFA were not supportive of a 24/7 care setting as it would not meet the child’s emotional needs. The social worker said such a setting would not be in the child’s best interests as it would lead the child to be “reliant on various staff members to have her needs met and receiving inconsistent parenting”.
Some studies existed on 24/7 care settings which demonstrated that this type of care allowed an individual to parent more effectively. However, the CFA noted that the studies did not contain information on the level of disability of the parents availing of the service. In addition, the CFA said there was no evaluation or longitudinal study to assess if the model was successful from a child’s perspective. The CFA questioned what impact such a care regime would have on the child’s development, attachment style and future emotional and psychological welfare.
The CFA drew attention to CFA v K  IEDC 02 in which Toale J decided a case concerning a mother with an intellectual disability. The judge found: “Even if [a 24/7] service were available…, it would not in my view be in A’s interest now or in the long term to be parented (if it can be described as such) in that way.” The judge accepted the conclusion of the parenting capacity assessment that: “The level of support required to sustain a placement with his mother is not realistic and ultimately, unfair on A himself”.
The respondent’s solicitor pointed out that as a comprehensive assessment has not been undertaken, we do not know if a 24/7 service is what the mother needs to parent her daughter.
The later part of the hearing was taken up with legal argument on whether or not the actions taken by the CFA in this case met the proportionality test for interference with the right to family life.
The solicitor for the respondent mother argued that the CFA care order application was premature and in such circumstances the authorised agency had not met the evidential threshold required under Section 18 of the 1991 Act. He argued that even if the evidential threshold of section 18 had been met, the CFA had failed in its positive obligation to act in a proportionate manner towards the mother and her daughter.
The solicitor contended that
• The CFA’s assessment of the mother’s capacity was incomplete.
• The CFA’s application for a care order for two years was premature.
• The care order suggested by the CFA has not been shown to be the least minimal interference available in the mother’s personal and family rights.
• The CFA was overly reliant on the unit’s assessment. The lack of capacity of the mother as outlined by the unit was an unfair and inappropriate standard to be applied in this case. For the mother’s rights to be respected and vindicated in these proceedings the correct standard to be established was whether or not the mother can adequately parent her daughter at home with sufficient and appropriate family support services.
• Without the specific parental assessment and without the chance of parenting her daughter at home with supports which enhance her strengths the mother was being discriminated due her disability; being treated unequally with other parents, before the law; and is not being afforded a fair trial.
• The CFA have not fully considered all options completely and fairly thus they have not sufficiently established that they had no other alternative but to institute the section 18 proceedings.
• The CFA have not established their action to institute section 18 proceedings were necessary and proportionate.
• The CFA should not have commenced the hearing of section 18 proceedings without affording the mother a specific strength based assessment and thereafter the opportunity to parent her daughter at home with supports.
• The Court must at all times act in a constitutional manner (Coughlan -v- Pattwell  1IR 31), and in compliance with the ECHR.
The CFA contended that, in this case, they have met the threshold required for a care order under section 18 and that the two year care order sought was proportionate.
The CFA stated a threshold must be met before a court can make a care order and that the burden of proof lay on the CFA and the standard of proof is on the balance of probabilities. Any threshold must be proportionate insofar as it goes no further than what is strictly necessary to ensure the welfare of the child in question. The court must be satisfied that a less interventionist order, such as a supervision order under section 19 of the 1991 Act, would be insufficient to protect the health, development and welfare of the child. Citing Child and Family Agency -v- RC  IEDC 02, the CFA said even where the threshold has been reached the court must consider the issue of the proportionality of the order granted.