THE mother of a newborn baby that was taken by gardai who surrounded a house has lost a High Court action to have the child returned to her by the HSE.
Mr Justice Sean Ryan dismissed arguments by lawyers for the baby, who sued through his mother, that the child was unlawfully and unconstitutionally taken into care.
He said it was "difficult to overstate the distressing nature of this case", but from the evidence he was satisfied that the emergency order placing the child in the care of the HSE was valid and lawful.
The mother, who was not present in court for the ruling, is considering appealing the decision to the Supreme Court.
Under the terms of the care order, she has been given access to the baby for two hours a day, five days a week.
None of the parties involved can be identified, by order of the court.
The baby, born last Wednesday, was being breast-fed by its mother when gardai arrived at the house of a family friend last Thursday.
At around the same time, the HSE obtained an emergency district court order temporarily allowing it to place the child in care. The HSE sought the orders due to concerns it has, mainly about the child's father.
Lawyers for the 38-year-old mother argued that the care order was unlawful and irregular. This was because the mother was prevented by gardai from attending the district court when it was being sought.
Ronan O'Brien, the mother's solicitor, said in an affidavit that no reasonable opportunity had been presented to the mother to make her case to the district court, which sat while she and the baby were under house arrest.
The HSE opposed the mother's application and argued that the order was perfectly valid.
The court heard that the baby's father was a controlling type of person who bullied his wife and had in the past assaulted his wife's teenage daughter from another relationship.
A HSE witness told the court there had been welfare conferences with the mother because of a perceived risk to the baby prior to its birth.
The HSE said the mother had been aware for a number of weeks that an emergency care order might be sought after the baby's birth because of a risk from the father.
In his ruling, the judge said he accepted the mother was denied fair procedures due to the fact that neither she nor her legal representatives had an opportunity to make her case to the district court before the care order was made.
However, the purpose of an emergency care order was to ensure the health, safety and well-being of the infant, the judge said. In this case, he was satisfied the care order obtained by the HSE was valid.
It was not the High Court's role in the proceedings to decide if there was any truth in the allegations or concerns expressed by the HSE in relation to the father.
While he noted the HSE's concerns, such matters were for the district court to determine, the judge added.
The care order, he said, was temporary in nature and lasts for only eight days.
He further dismissed an offer by the mother to live with a family friend away from the father if she was given custody of the baby.