A woman who took over the care of her three young grandchildren five years ago wept as the High Court granted her application to direct Tusla to apply for orders formally placing the children in her care.
Mr Justice Charles Meenan’s judgment addressed the State’s constitutional duty to intervene to protect children when parents fail in their duties in that regard and, in particular, Tusla’s duty under the Child Care Act 1991 to protect children.
Represented by Michael Conlon SC, the grandmother went to court in July 2017 due to fears her daughter, who has many difficulties, would move to take the children back, which the grandmother could not prevent because she has no formal legal right to retain them in her own care.
The children were at a very vulnerable stage in their lives and needed Tusla’s protection, she said.
The proceedings were initiated after Tusla failed to apply, despite several requests, for care orders on her behalf.
In opposing her action, Tusla said it had no legal obligation to intervene.
It said the children were being cared for under a private care arrangement between the grandmother and the children’s mother and, as far as it was concerned, the file on the case was closed as it had no current child protection or welfare concerns about them.
On Thursday Mr Justice Meenan said the children’s mother continued to suffer from addiction, mental-health problems and other difficulties, remained incapable of looking after the children and was also in a “dysfunctional and abusive” relationship with her partner.
Imminent risk
Following an emergency case conference with Tusla in 2013, the grandmother agreed to take over care of the children in light of the then “significant imminent risk” to them.
This was an “enormous commitment” for her that involved her leaving her home and job and moving to another part of the country.
Tusla put a child-protection plan in place, which involved, among other things, the grandmother becoming the children’s temporary carer and providing, if the mother was deemed able to parent them, that there would be a gradual transition to her care.
There has been no formal review of the plan since April 2014 despite issues having arisen that the grandmother feared impinged on the children’s safety and welfare, he said. These included District Court applications by the children’s mother in 2016 and 2017 seeking guardianship and unsupervised overnight weekend access during which the mother alleged, among various claims, that she had not agreed to the current arrangement relating to the children.
While the 2017 application was dismissed on technical grounds, there could be a further application, the judge noted.
Vulnerable situation
Those applications by the mother underlined the vulnerable legal situation of the grandmother and cannot be of benefit to the three children, who have significant childcare demands, he said.
Noting that letters from the grandmother’s solicitor setting out her concerns were not replied to, he said he would have thought that a case review would have taken place in response to those, at a minimum.
He accepted the children’s position was as stated by the grandmother and said Tusla’s failure to review the position in some four years meant it could not validly dispute that.
It appeared the children require, within the meaning of section 16 of the 1991 Act, “care or protection” they are unlikely to get unless a formal care or supervision order was made for them, he said.
In the circumstances, the grandmother was entitled to succeed, he ruled.
The case was adjourned to next week to allow the sides consider what formal orders should be made arising from the judgment.
