State handling of childcare cases under scrutiny
Implications for Tusla over refusal of care order after ‘inexcusable’ delay
‘In many such cases the Child and Family Agency obtains an order in the High Court under EU law that the child be returned to his or her country of origin.’ Photograph: Getty Images
A District Court judge has asked for an inquiry by the Ombudsman for Children into the delays in a childcare case where two children were in temporary care from their birth for five and three years respectively following their parents’ arrival in Ireland from another jurisdiction.
In a judgment delivered in November, the judge refused full care orders until the children were 18 and ordered they be returned to their parents. He described the delay in the case as “inordinate, inexcusable and entirely unacceptable”.
This judgment will have implications for the Child and Family Agency (Tusla), especially in cases where children are born in Ireland days after their mothers arrive here from other jurisdictions.
Recent years have seen dozens of cases in which mothers, mainly from the United Kingdom, come to Ireland in late pregnancy when they have been informed care proceedings will be brought to take their child into care at birth. Care proceedings in the UK can lead to the child being adopted.
Usually the Irish authorities are informed the child is at risk and the child is taken into care. This does not lead to adoption here, and the parents remain in contact with the child.
In many cases Tusla obtains an order in the High Court under EU law that the child be returned to his or her country of origin, on the basis that the child has no connection with Ireland and the courts there are best placed to judge what is in the child’s best interests.
Care proceedingsIn this case the parents arrived in Ireland more than five years ago from the other jurisdiction three days before the birth of the first child. Two of their children had already been taken into care following evidence that one had been sexually abused. The parents denied responsibility, no one was prosecuted and no perpetrator has been identified. The parents had been informed that their unborn child would also be the subject of care proceedings, leading to their flight to Ireland.
Two years later another child was born, who was also taken into care. The parents had married a month before the birth. The parents had supervised access with both children and the judge said that, from the evidence given to the court, the access had been positive.
The judge said the failure of Tusla (which took over the case from the Health Service Executive) to call evidence from the other jurisdiction relating to the serious allegations against the parents was fundamental to his determination of the case. To decide the case in the absence of such evidence would violate the respondents’ constitutional right to a fair hearing, he said.
Serious allegationsThe judge said the Tusla case was based primarily on the events relating to proceedings in the other jurisdiction and the court orders made there. He said no evidence had been called by the agency to seek to substantiate the serious allegations of child sexual abuse against the respondents or their alleged involvement in such abuse or their alleged failure to protect their child from such abuse while in the other jurisdiction.
However, the judge directed that, if necessary, contact be established between the two governments to ensure appropriate protocols are in place in such cases in future so there are reciprocal arrangements for witnesses to give evidence in each other’s jurisdiction.
The proceedings for full care orders began in May and continued over 19 days. In his judgment the judge outlined the background to the case and discussed a range of legal issues, including the constitutional position of the family and the child; the jurisprudence of the European Court of Human Rights on the rights of the family; the interpretation of the childcare legislation; the different thresholds for various child protection orders; the admissibility of evidence where witnesses are not called to support it; and the role of a guardian ad litem in childcare cases.
While all of these matters will be studied carefully by Tusla, the judgment holds little comfort for those fleeing their homes to come to Ireland seeking to escape child protection proceedings. The judge criticised the agency for not seeking an order sending the family back to their own jurisdiction and directed an inquiry into why this had not been done in this case.
Decisions of the District Court do not set precedent, butjudges are increasingly writing judgments that are read by their colleagues and shape the conduct of childcare cases. This will inevitably affect the practice of the Child and Family Agency, which has been directed to improve the training of social workers in awareness of the law, to ensure all relevant information is included in reports, to ensure allegations against parents are supported by evidence that can be tested in court and to ensure all childcare applications are processed speedily.
The full report on this case is contained in volume 4 of the reports of the Child Care Law Reporting Project, published today. Carol Coulter is director of the CCLRP and former legal affairs editor of The Irish Times