Wednesday 12 December 2018

Breastfeeding mother experienced 'torture' when one-day old newborn was forcibly removed from her, High Court hears

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Tim Healy

A mother said she experienced "torture" when social workers and gardai entered her hospital room "like she was the worst person" and forcibly removed her newborn child, the High Court has heard.

Alternatives to that removal were not actually considered, she claims.

Mr Justice Seamus Noonan was told a social worker had said physically removing the child was "the absolute last resort" arising from fears the parents and child could flee the jurisdiction if they learned of proceedings to have him taken into care.

The parents have several children in care arising from concerns over domestic violence, a chaotic lifestyle, neglect and limited engagement with social workers.

Social workers also referred to the mother having a strong sense of spirituality, having made the sign of the cross on the children’s heads with nail varnish and saying the newborn was the "third Immaculate Conception baby God has given her".

The woman claims the forcible removal earlier this month of the day old infant, whom she was anxious to continue breastfeeding, breaches their personal and family rights under the Constitution and European Convention on Human Rights.

Sunniva McDonagh SC, instructed by solicitor Pól Ó Murchú, for the mother, secured leave last week to bring proceedings against the Child and Family Agency (CFA) over how emergency and interim care orders were made for the child.

When the hearing opened on Tuesday, Ms McDonagh said, if the court upheld her side's claims, it was not automatic the baby would be returned to his mother and the court could make such orders as it considered to be in the child’s best interests.

The CFA opposes the proceedings.

The child’s father is a notice party and the baby’s court appointed guardian is maintaining a watching brief.

The baby remains in the care of the CFA under an interim care order (ICO), made two days after being taken from his mother on foot of the emergency order (ECO) made by the District Court on grounds of "immediate and serious risk" to the chid.

Because the mother resisted the baby's removal, some force, which the District Court order permitted if necessary, was used.

Three female gardai from a child protection unit and two social workers were involved in the removal and one Garda said she tried to persuade the mother to hand over the child but the mother resisted.

The mother had a bible in one hand and the baby in the other and she was concerned whether the baby’s head was adequately supported, the Garda said.

In their action, the mother and child claim the baby's forcible removal breached the obligations of the CFA under the Constitution and European Convention on Human Rights Act 2003, particularly family life rights, including by not operating a proper and transparent procedure for the removal of new born infants from their mothers.

It is also alleged the District Court judge prejudged whether the child was at immediate risk in the absence of any evidence the CFA had concerns relating to the mother’s care of the baby from the time of birth to the hearing of the ICO application.

Ms McDonagh said the CFA contended the woman had not engaged in "safety planning" before the child's birth when the mother did engage with social workers, albeit on a limited basis, and the court "could well ask what is meant by safety planning".

Her side also queried what the CFA said about the woman having made references to fleeing the jurisdiction if she was not given social housing or hotel accommodation. The woman had disputed she is subject to physical assault by her husband but had said, due to verbal assaults, she wants to live separately from him.

Such issues fed into whether the CFA had a "less restrictive" option other than seeking an ECO and removing the baby from his mother at one day old, counsel said.

There was "obviously a troubled history" but the real issue was whether there was an immediate and serious risk of harm to the child which warranted this order, made without notice to the mother. Having been asked by the CFA to represent the mother, Mr Ó Murchú was introduced to her just three hours before the ICO application was heard and was refused an adjournment, she added.

The hearing continues.

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