The High Court will have to intervene in a continuing dispute between a separated father and Tusla, the Child and Family Agency, over his two children remaining in foster care, a judge has said.
The father, who has custody of the children aged 12 and 13, claims their refusal to return to his care is a consequence of parental alienation and their mother has “poisoned” them against him.
He claims his concerns, and those of an independent family therapist, about parental alienation have not been properly addressed by Tusla in care proceedings to date.
'Impossible' position
The agency maintains it is in an “impossible” position because the children refuse to return to their father since he placed them in voluntary care some two weeks ago after they complained at school about his taking their mobile phones from them. He alleged the phones were being used for contact with their mother in breach of a District Court order.
The children told the school they did not wish to return to their father, who had been granted custody of them by the District Court following a contested hearing.
He placed them in voluntary care of the CFA overnight in the hope the situation would “cool down”.
When he sought their return the following day, July 2nd, the agency failed to return them and sought an emergency care order (ECO) which was refused by the District Court.
Judicial review
Two weeks ago, the man initiated judicial review proceedings against the Agency seeking to overturn its "flawed" investigation into his complaints about the mother’s care of the children, particularly alleged failure to consider parental alienation. He also sought to overturn its finding last November he had coercively controlled and abused his wife, which he strongly denies.
He wants a fresh investigation and an injunction seeking return of the children.
Last week, Mr Justice Charles Meenan agreed to give the agency time to put in opposition papers and adjourned the matter for various steps to be taken.
On Thursday, Micheál P O Higgins SC, for the father, said no “meaningful” progress had been made concerning the children’s return to their father or to his sister.
He wanted to bring an application urgently aimed at securing “active” steps by Tusla for the children’s return on a more permanent basis. The agency was on notice since March of the father’s concerns about child protection and parental alienation and the father wanted a “dignified” resolution of this dispute.
Constitution
The children’s rights amendments to the Constitution require the children’s voices must be heard but that cannot trump all other considerations, especially when the father maintained their current opposition to returning to him had been “orchestrated” by their mother. If that was correct, there is a “profound injustice” to the father and the children, he said.
Brian Barrington BL, for Tusla, said a parental alienation expert has been engaged, psychological assessments of the children are planned and efforts continue to have the children engage with family therapists. It was proposed the mother would try and persuade the children to have a meaningful relationship with the father.
When the judge asked about the legal basis for the children’s detention, counsel said Tusla, given the interactions between the sides, had not pursued an application for an interim care order.
Offers
While the children cannot be kept in care against their father’s wishes, he had not responded to certain offers and the legal position is they remain in voluntary care or, if not, under section 5 of the Child Care Act, he said. The father knew the children did not want to return to him as of now, they should not be forced to “and we should work at their pace”, counsel said.
Mr O’Higgins said it was “extraordinary” to say the lawful basis for the foster care regime was voluntary care when the father’s solicitors have made “abundantly clear” he is not considering their staying in voluntary detention. This was “all irregular”.
He waas not pushing for “dramatic” court orders as he was mindful of Tusla’s statutory obligations, counsel said.
The judge said he had hoped this unfortunate situation could be resolved without the court’s intervention, but it seemed clear that will not happen and the court has to intervene. He returned the matter for mention to Tuesday.
