Tuesday 23 January 2018

Mother loses High Court bid to have newborn baby returned to her from HSE care

The Four Courts Dublin.
The Four Courts Dublin.

THE mother of a newborn baby taken by a force of gardai who surrounded a house and placed the infant in the custody of the Health Service Executive (HSE) has lost a High Court action aimed at having the child returned to her.

Mr Justice Sean Ryan, in a ruling on this morning dismissed arguments by lawyers for the baby, who sued through his mother, that the child was unlawfully and unconstitutionally taken into care by the authorities.

Mr Justice Ryan said it was "difficult to overstate the distressing nature of this case", however from the evidence he was satisfied 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 ruling to the Supreme Court.  Under the terms of the care order she has been given access to the baby for two hours a day for five days a week.

None of the parties involved can be identified by order of the court.

The baby, born last Wednesday, was being breastfed by its mother when gardai arrived at a house of a family friend last Thursday.

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 the care order obtained by the HSE was unlawful and irregular. This was because the mother was prevented by gardai from attending the district court when the care order was being sought.

Barrister Michael O'Higgins SC for the child had argued gardai were asked by the HSE to put the mother and child effectively under house arrest.  This was to keep them in the jurisdiction of the district court while it was considering making an emergency care order.

Ronan O'Brien, solicitor for the mother, said in an affidavit 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.

As a result of this High Court inquiry, under Article 40 of the Constitution, into the legality of the care order was launched and heard by the High Court last Saturday.

The HSE opposed the mother’s application and argued 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 by another relationship.

A HSE witness told the court that because of a perceived risk to the baby prior to its birth there had been welfare conferences with the mother,

The HSE said she 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 neither she nor her lawyers 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 these proceedings to decide if there were any truth the allegations or concerns expressed by the HSE in relation to the fathers alleged behaviour. While he noted the HSE's concerns such matters were for the district court to determine, the Judge added.

The care order, he added was temporary in nature and only lasts for eight days.  Care orders, such as the one being challenged in this case, can only be extended following a full hearing at the district court, the Judge continued.

The circumstances of the situation could change when matters are fully aired before the district court, the Judge added.

The Judge further dismissed an offer by the mother that if she was given custody of the baby she would reside with a family friend away from the father.

By Aodhan O Faolain & Ray Managh

Online Editors

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