High Court quashes emergency care order for newborn removed at birth as disproportionate – 2018vol2#2

See follow up Vol 2 of 2019: Full care order for baby whose mother left state

A High Court judicial review quashed a District Court emergency care order (ECO) where a newborn was forcibly taken from hospital a day after his birth. The court found that there was no evidence that all possible alternatives to the traumatic removal of the child had been considered and therefore the ECO could not be regarded as constitutionally proportionate or in compliance with the European Convention of Human Rights. An order of certiorari was made quashing the ECO.

Refusing to quash the interim care order (ICO) that followed, the High Court found that the district court judge had balanced the competing constitutional rights of the parents and the child and appropriately and correctly had regard to the primacy of the child’s rights.

Background
The parents had moved to Ireland from a non-European jurisdiction sixteen years ago. They had a number of other children, ranging in ages from sixteen to two, who were the subject of care orders made by the District Court. There was a family history of involvement with the CFA due to domestic violence, chaotic life style and mental health issues. The mother had exhibited concerning behaviour relating to her preoccupation with angels and demons but had not been formally diagnosed with a mental disorder. In the past both parents had refused to engage with social workers and had concealed their whereabouts.

A day after the birth, the Child and Family Agency (CFA) made an application to the district court on an ex parte basis for an emergency care order (ECO) in respect of the newborn pursuant to s.13 of the Child Care Act 1991 (the 1991 Act). According to the CFA, the application for an ECO on an ex parte basis was due to a risk that the parents would flee the jurisdiction with the newborn if they had notice of the court proceedings.

During the proceedings the CFA solicitor told the court that her client appreciated it was seeking an extremely harsh order but the CFA had done a careful assessment of the impact. The CFA had looked at other ways that could be done in that they had tried to engage the parents in the planning and decision-making process. However, the parents had not attended meetings and they were not meaningfully engaged with the social work department. Acknowledging that engagement with the social work department could have led to a less intrusive measure, the CFA solicitor said that, due to the lack of engagement and other immediate risks that had been outlined by the witnesses, it was not possible at the immediate time.

On the evidence given, the district court was satisfied that the urgency of the matter required the application to be made ex parte and that there was reasonable cause to believe there was an immediate and serious risk to the welfare of the child, which necessitated the newborn being placed in the care of the CFA.

Given that the application was being made ex parte, the judge was of the view that she would grant an ECO for a shorter period. Having regard to the judgment of the European Court of Human Rights in K and T v. Finland and taking all matters into account, the judge concluded that an ECO for a period of two days was appropriate.

The CFA solicitor pointed out that there would not be two clear days for service of an application for an interim care order. As the judge was concerned that making an order for eight days would not be proportionate, she indicated that the time to allow service would be abridged and that service of notice by text message was permitted on both parents. Following an application from the CFA solicitor, the judge also issued a warrant for the purpose of restraining the mother from leaving the hospital in the event that she tried to leave with the baby.

An emergency care order was granted for a period of two days. A warrant for the removal of the baby into the care of the Child and Family Agency was also granted by the district court pursuant to s.35 of the 1991 Act.

On foot of the emergency care order and the District Court warrant, An Garda Síochána removed the newborn by force from the mother in the maternity hospital in the presence of two social workers.

The day after the ECO was obtained and executed, the mother and the father were notified by text message that an interim care order would be applied for the following morning at the District Court. No application papers were provided.

An application for an interim care order in respect of the newborn was listed before the District Court the next day. That morning the judge allowed the matter to stand so that the father could obtain legal representation from the Legal Aid Board. The father was assigned legal aid shortly afterwards and met his solicitor before noon. His solicitor was required to deal with other matters in the District Court list between that time and the hearing of the interim care order at approximately 4.30pm.

When the mother arrived to court later on that morning there was no legal representative available from the Legal Aid Board or Law Centre. The CFA solicitor advised that the CFA had given authorisation for a private solicitor to be retained for the mother at the CFA’s expense, which was immediately arranged. That afternoon, solicitors for the CFA approached the solicitor for the mother who agreed to represent her.

The solicitor for the mother, who had no prior knowledge of her personal and family circumstances, took instructions to the effect that she had given birth two days earlier but the newborn had been forcibly removed from her in hospital. The mother, who had been breastfeeding, wished to oppose the ICO application and wanted the baby to be returned to her.

Solicitor for the parents were concerned that they had not been served with two days’ notice of the ICO application. In addition, the documents they were given made reference to historic allegations and other reports, which were not furnished. The CFA was purporting to rely on numerous social work reports relating to the nine other children who had previously been taken into care. Given that the child was a newborn, the parents’ legal representatives considered that the evidence concerning historical allegations was of particular relevance. The interim care order would be made on the basis of the proposed likelihood of future harm in light of historical events.

When the matter came on for hearing that afternoon both solicitors sought an adjournment for seven days on the basis that they had not had sight of all relevant reports; they had not had an opportunity to take full instructions; and they were not in a position to effectively cross-examine the witnesses. They referred the judge to the decision of the Supreme Court in S. McG. v The CFA [2017] 1 I.R. 1., which affirmed parental rights to effective legal representation.

In SMcG, the applicants were parents of two children in respect of whom the CFA sought interim care orders in the District Court. The first applicant obtained emergency legal aid on the morning of the hearing of the application and, necessarily, only met her solicitor the day of the hearing when he received most of the relevant paperwork. The second applicant was functionally illiterate and without legal representation. The parties agreed that an adjournment of one week would be appropriate to enable the first applicant’s solicitor prepare to meet the case, and to enable the second applicant obtain representation.

However, the District judge refused to grant an adjournment and the application proceeded. The social worker’s report was lengthy and contained a high degree of detail because engagement with the family had taken place over a number of years. The application resulted in ICOs being made in respect of both children. On appeal, the Supreme Court considered that, while recourse to Article 40 (right to fair procedures) should be rare in childcare disputes, it was appropriate where there had been, in the words of MacMenamin J, a “fundamental denial of justice”.

Opposing the application for an adjournment in this present case, the CFA solicitor
had pointed out that the ECO would expire that day and had suggested that the court could make an ICO for a short period of time.  He had offered to consent to an adjournment for seven days with the child remaining in care but this offer was refused unless the baby was returned.

Having risen for a period of time to consider the application, the District Court judge had refused the adjournment. He distinguished SMcG on the basis that in that case the parties had agreed to an adjournment; the children were not already in care at the time of the hearing; the children were not at immediate risk; and there was no urgency. Referring to the ECO that expired that day, the judge indicated that there was an immediate risk to the newborn and the welfare of the child was the paramount consideration.

The interim order application was heard and extensive evidence was given. During cross-examination, the social worker confirmed that the CFA had no specific procedures or protocols in relation to the removal of newborn children from their mothers in hospital, other than that provided for in legislation in relation to all childcare proceedings generally. She acknowledged the traumatic nature of the forcible removal of the baby from the mother before cross-examination ended. At the conclusion of the hearing, the District Court judge made an interim care order for a period of 21 days.

Leave to seek judicial review of both the ECO and ICO granted by the District
Court was sought the following working day. Given the urgency of the case, the High Court judge granted an abridged return date two days later to allow the exchange of pleadings and submissions. The judicial review hearing took place over three days.

The judicial review proceedings
In these judicial review proceedings, the applicants sought to quash the two care orders of the District Court made in respect of the first named applicant, the baby.

At the outset of the judicial review proceedings the judge, having read all the relevant affidavits and welfare reports, strictly prohibited the publication of any of the information they contained.

A motion was issued to join the guardian ad litem (GAL) as a notice party on the basis that the GAL was a party in the district court proceedings.

Counsel for the mother raised the issue that the District Court warrant to remove the baby may have not been executed appropriately. She highlighted that, in contrast with provisions in other areas of the law regarding the issuance and execution of warrants, s.13 (3) of the 1991 Act explicitly envisages that it is the named garda addressed in the warrant who has authority to execute it (if necessary accompanied by other Gardaí). Upon review, it appeared that the warrant was addressed to a garda superintendent but it was unknown the involvement, if any, in the execution of the warrant.

Counsel for the CFA pointed out that the warrant, which was lodged with the district court office and executed by a member of An Garda Siochana, had not been formally challenged. Counsel for the mother said that the issue only arose when the statement of opposition was exhibited. The judge asked for the position on this point to be clarified as soon as possible. It was subsequently agreed that this point would not be further pursued to avoid any unduly delays.

Submissions for the Mother
Counsel for the mother challenged the lawfulness of both the ECO and the ICO, and sought to quash both orders as having been obtained:

• contrary to the District Court Rules 1997 as amended by the District Court (Child Care) Rules 2015, S.I. No. 143/2015 (the DCR);

• contrary to s.13 (4)(c) of the 1991 Act, as amended, in the case of the ECO;

• contrary to Articles 40.3.1°, 40.3.2°, 41.1 and 42A.1 of the Constitution and the constitutional requirements of natural and constitutional justice and of proportionality;

• contrary to Articles 6, 8, 9 and 14 of the European Convention on Human Rights (ECHR), such that the CFA was in breach of its statutory duty to perform its obligations in a manner compatible with the ECHR, pursuant to s.3 ECHR Act 2003.

The judge asked if the child would return to the parents if the orders were quashed. Counsel for the mother pointed out that section 23 of the 1991 Act, which outlines the powers of the court in case of invalidity of orders, could be an alternative. She said that the court could make an order afresh, if there were infirmities, and that quashing the order would not necessarily mean that the child would be returning to the parents. Counsel for the mother added that the best interests of the child were paramount.

a) ECO obtained contrary to s.13 (4)(c) of the 1991 Act and the DCR
Counsel for the mother argued that the ECO application should only have proceeded ex parte, or without the parents being notified or present, “where the urgency of the matter so require[d]” under s.13 (4)(c) of the 1991 Act as implemented by Order 84, rule 5(2) DCR. The court heard that there was no evidence provided by the CFA to the district court judge to the effect that the matter was so urgent that it could not proceed on notice to the parents.

Judge: “Was it not related to the fact that they [the parents] did not have an address?”

Counsel: “The mother was in hospital and they [the social workers] knew that they were going to apply for an ECO. The emergency reasons to proceed ex parte were not met.”

Counsel added that, on the contrary, the social work report relied upon stated that the immediate and serious harm to the baby would only be triggered when the parents learned of the court proceedings. It was argued that this did not constitute “urgency” within the meaning of the Rules or the 1991 Act, which is the only context in which an ECO application could be made ex parte.

In addition, counsel for the mother argued that there was a dramatic reference to “fleeing the jurisdiction”. The social worker had relied on hearsay evidence from the medical social worker to the effect that the mother would flee the country should the local city council not provide adequate accommodation. The court heard that the mother gave evidence before that she was not planning to move to another jurisdiction.

Counsel said that the ECO application was applied for and granted in excess of jurisdiction and without statutory justification for such a departure from basic fair procedures and natural justice. In addition, counsel for the mother argued that the manner in which the CFA performed its function of obtaining an ECO was incompatible with its obligations under Article 8 ECHR (contrary to its statutory duty under s.3 ECHR Act 2003).

The court heard that in Haase v Germany(1)the European Court of Human Rights (ECtHR) held that it was for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to the removal of the child from its family, was carried out prior to the implementation of a care measure. The ECtHR considered the measures taken were in accordance with the law and pursued a legitimate aim but they were not supported by relevant and sufficient reasons and the applicants had not been sufficiently involved in the decision-making process. An imminent danger to the children had not been established, in particular, the removal of the newborn baby from the hospital was an “extremely harsh measure” unaccompanied by “extraordinarily compelling reasons” as would be required in such circumstances.

In addition, the mother’s lawyer said that the mother had been left without any effective remedy in respect of the ECO, contrary to her constitutional rights and to Article 13 of the ECHR, because the order was made without notice to her, and expired two days later without her having been provided with the evidence on which the order was made. For that period the actions of the CFA in forcibly removing the newborn from his breastfeeding mother in hospital and taking him into care were rendered immune from any effective scrutiny.

b) Expiry of ECO two days after its grant not a bar to judicial review
In response to the CFA preliminary objection that the proceedings regarding the ECO were moot because it had already expired, counsel for the mother said that it was unsustainable in circumstances where there were ongoing child care proceedings before the District Court in that matter and in light of directly contrary authority from the Supreme Court in the area. In SMcG(2) the Supreme Court rejected the argument in an appeal on an Article 40 application (right to fair procedures) to the effect that the matter was moot simply because the impugned interim care orders under challenge were spent by the time the Supreme Court appeal came on for hearing. The High Court in SMcG also cited KAv HSE(3) noting the “inherent continuity in the childcare process” and that “a flaw at an early stage in the process can have a detrimental effect on the process as a whole.”(5)

She argued that if the CFA was correct regarding mootness, it would entail the practical result that the legality of an ECO could never be challenged by way of judicial review. The court heard that such a proposition could not be correct or, if it was correct, then judicial review was an ineffective remedy under the Constitution particularly considering that the ECO was an important facet of ongoing litigation as in SMcG.

c) Existence of appeal to the Circuit Court not a bar to judicial review
In relation to the suggestion from the CFA that there was an alternative remedy for the parents in the form of a de novo appeal to the Circuit Court, counsel for the mother said that it was not an appropriate remedy to the illegality of the ECO. It was well established that an order of certiorari was an appropriate remedy where a decision maker had acted contrary to the rules of constitutional justice, and a party had been prevented from making representations on an order under review. Otherwise, one would be effectively deprived of the statutory right to appeal, as the first constitutionally compliant forum would be that of the appellate court.

The court heard that the same point had been made in numerous other cases (5). In Stefan v Minister for Justice(6) Denham J succinctly observed that “[a]n insufficiency of fair procedures at first instance is not cured by a sufficiency on appeal.” The same authorities were relied upon in respect of the CFA’s suggestion that an appeal lies against the ICO to the Circuit Court, for the same reasons.

d) Removal of newborn child at birth disproportionate: Less restrictive option
Counsel for the mother argued that the removal of the newborn from his mother the day after his birth would require to be considered proportionate, both as a matter of a constitutional jurisprudence and as part of the CFA’s statutory obligations under s.3 ECHR Act 2003 not to interfere with the family rights under Article 8 in a disproportionate fashion.

Counsel added that Article 41.1 of the Constitution guaranteed the child’s constitutional right to remain in the care and company of his mother(7). In KA v HSE(8) the High Court held that, having regard to the provisions of Article 42 of the
Constitution, there is a constitutional presumption that the welfare of the child is to be found within the family unless the court is satisfied on the evidence that there are compelling reasons why this cannot be achieved. Counsel said that the enactment of Article 42A of the constitution has strengthened and enhanced the right of the child to the society of both of its parents, which was a basic principle accepted by the High Court in PH v Child and Family Agency(9).

Further, where fundamental rights were at stake, a public law decision interfering with such rights should do so to the minimum degree necessary to achieve the legitimate objective (Meadows v Minister for Justice, Equality & Law Reform(10)).

Counsel for the mother argued that it was clear from the case law of the European Court of Human Rights that “extraordinarily compelling reasons” must exist for a baby to be physically removed from a mother after birth.

In P, C and S v United Kingdom(11), the Court found sufficiently compelling reasons to issue an emergency protection order in respect of a newborn baby where the mother had a conviction for previously harming a child and was suspected of suffering from Munchhausen’s Syndrome by proxy. However, it found a violation in relation to the implementation of the protection order, i.e. the removal of the baby from hospital into care, rather than a less drastic form of supervision of the mother with her baby in the hospital.

Counsel for the mother argued that it was difficult to see how her client could have been considered so dangerous – more so even than P who had an actual diagnosis of a mental disorder that almost automatically presented a danger to a child – that a violation would be considered to have occurred in P, C and S but not in the instant case.

In relation to the option of a less drastic form of supervision of the mother with her baby in the hospital, the judge questioned whether the District Court would have been comfortable granting that type of order given the logistics involved. Counsel for the mother replied that it was an alternative and that presenting evidence that it was not adequate would have been more proportionate. There was no evidence that actual alternatives to the traumatic removal of the child had been considered.

Counsel went on to compare the situation of the mother in K and T v Finland(12) and the current case. The ECtHR held that Ms K’s history of mental health difficulties, rather than justifying emergency care measures, militated against removal. The Finnish Government had known of K’s mental health problems and had known she was expecting the child, yet had not explored the feasibility of “less intrusive” measures. In that case it was disputed whether the situation could be described as an “emergency” given that it was foreseeable.

In addition, whereas Ms K had been diagnosed with schizophrenia, counsel said that the mother in this case was, on the admission of the CFA, without any definite diagnosis as to her mental health. While she was previously admitted under the Mental Health Acts, there was no professional medical basis to suggest that she was suffering at the time of removal from the kind of mental disorder that Ms K was.

Counsel for the mother said that the burden was on the CFA to demonstrate that it conducted a proper and informed assessment as to whether there was any less intrusive mechanism than outright removal of the newborn, such as for example supervision within hospital (as suggested in the case of P), and that no such mechanism was appropriate in the circumstances. She argued that there was no evidence that any alternatives short of removal were actually considered and explored by the CFA in this case.

Accepting that a margin of appreciation should be afforded to the CFA, on any comparison with K and T v Finland and P, C and S v United Kingdom, it was apparent that a breach of Article 8 had occurred.

e) ICO application contrary to s.17 (3) of the 1991 Act and DCR
Counsel for the mother went on to say that the ICO was obtained by the CFA contrary to s.17 (3) of the 1991 Act and the District Court Rules (DCR). Section 17(3) of the 1991 Act provides than an ICO application “shall be made on notice to a parent having custody of the child or to a person acting in loco parentis except where, having regard to the interests of justice or the welfare of the child, the justice otherwise directs.” The requirement of notice in s.17 (3) of the 1991 Act is implemented in the DCR.

Counsel argued that the District Court Rules Committee had established that the mandatory minimum notice period necessary to enable child care proceedings to be safely conducted was two days. This was to reflect the fact that child care proceedings could be complex involving numerous social work reports in particular where a parent has many children or has had interactions with the CFA over many years.

If it was in fact the case that the district judge made orders abridging time for service of the ICO application and for substituted service by way of text message (neither of which orders appeared on the copy of the ECO served on the Applicants), then the combination of these orders together with the refusal to consent to any adjournment of the ICO application meant that the rules of natural and constitutional justice had not been complied with.

Counsel for the mother argued that it was not possible to effect service of application papers (including lengthy historical social work reports) by text message. All that was done was to text to the mother notice of the intention to make an ICO application. Then the legal representatives were appointed on the same day than the ICO hearing, given copies of the application papers and thereafter adjournment applications were objected to.

Counsel noted that the CFA had objected to the adjournment of the ICO application because the Emergency Care Order would have expired and the child would have been returned to the parents. She argued that this was at odds with the fact that the District Court judge was content only to grant an ECO ex parte for a limited period of two days because the parents needed to be notified and given the opportunity to apply for legal advice.

When the judge asked what would have happened if the District Court had adjourned the ICO hearing, counsel replied that another ECO for a limited time could have been applied for. It was also submitted that the CFA had not outlined why a further ECO (of necessarily very brief duration) was not and could not have been sought instead of an ICO lasting some 21 days.

The lawyer stressed that in SMcG the Supreme Court had placed significant Importance on the requirement to respect fair procedures in childcare proceedings and for the court to grant adjournments where necessary to ensure parties are properly represented.

Refusing the adjournment of the ICO proceedings, the district judge had distinguished SMcG on two points: that an adjournment had been agreed between the parties in SMcG; and that the children in SMcG were not already in care, unlike in these proceedings.

Counsel for the mother contended that in SMcG the Supreme Court noted in passing that there was no objection from the respondent to an adjournment of one week. It was referenced by way of demonstrating the less urgent nature of that case (13).

In relation to the second point in which the District Court distinguished SMcG, counsel for the mother further argued that it illustrated well the cascading nature of child care proceedings. It was submitted that the district judge had prejudged the outcome of the ICO application in refusing an application for an adjournment on the basis of a stated risk to the child. The district judge refused the adjournment application based on the fact that an ECO application had already been granted ex parte a number of days earlier. Yet the applicants’ legal representatives had no opportunity to challenge the basis for the ECO, having effectively only just learned of it.

Counsel for the mother argued that the strong vindication of parental procedural rights exhibited in SMcG was not replicated and a brief adjournment or an emergency order of short duration should have been applied for by the CFA. The mother had not been involved in the process to a degree sufficient to vindicate the judicial obligation to administer justice fairly and to protect fundamental family rights in circumstances where: she was not involved in or heard at the ECO application; she received one day’s notice of the ICO application by text message (but not the evidential materials on which that application would be based); and the legal representatives received a few hours’ notice of the evidential materials for the ICO application, with all requests for an adjournment to enable them to prepare being refused.

Submissions for the father

Submissions made on behalf of the father, who was a notice party to the proceedings, were broadly similar to the submissions made on behalf of the mother.

In relation to the suitability of judicial review of the interim care order, counsel for the father said that neither an appeal nor the requirement for a further hearing to extend the interim care order could cure a breach of fair procedures in the initial interim care order hearing.

a) Constitutional right to fair procedures
Counsel for the father submitted that the interim care order was made in breach of his constitutional right to fair procedures, in breach of the baby’s right to the care and custody of his/her parents and in breach of both the baby’s and father’s right to the protection of the family guaranteed by Arts.41 and 42 of the Constitution and the ECHR. Accordingly, it was submitted that the interim care order was invalid and should be quashed.

Appropriate, proper and effective legal representation was similarly denied to the father in circumstances where he, like the mother in SMcG and the father in State (D and D) v Groarke, was unable to fully instruct his solicitor and where his solicitor was not furnished with the reports containing the allegations relied on in the interim care order application. The district court judge who granted the emergency care order determined that it was only appropriate to make such an order without having heard the parents for a very short period of time. Counsel argued that, when the case returned for an interim care order hearing on notice to the parents, the district court judge was obliged to ensure that those parents were properly heard and afforded constitutional fair procedures.

The court heard that another significant factor was the very young age of the child. In SMcG, the children were aged 5 and 14. In KA v Health Service Executive [2012] 1 IR 794, the children were aged 10 and 12. In the current case a newborn infant was taken into care on an ex parte basis the day after his birth and on an inter partes basis three days after his birth. She contended that the level of intrusion on the constitutional family arising from severing a child from the family unit at birth was far more severe than taking a child into care who has had an opportunity of establishing a bond and relationship with his or her natural parents. This greater degree of intrusion on the constitutional rights necessitated a more robust degree of fair procedures.

b) Baby’s right to the care and custody of his/her parents
Counsel for the father said that in failing to afford the father proper fair procedures in the hearing of the application for an interim care order, the District Court failed to adequately respect and vindicate the baby’s rights, which required to be carefully balanced and assessed by a court. Because of the failure to adjourn the proceedings to allow both parents to be properly and fully represented and to engage with the proceedings in a meaningful way, the making of the order itself failed to properly assess the welfare of the baby and his place in the family unit and was unlawful.

c) Right to the protection of the family
As a marital family, the parents of the newborn child enjoyed the constitutional protection of the family guaranteed by Arts.41 and 42 of the Constitution. The father also enjoyed the right to protection for his family life under Art.8 of the European Court of Human Rights. The district court, by virtue of section 2 of the European Convention on Human Rights Act 2003, was required to interpret the provisions of the 1991 Act in a manner complaint with the State’s obligations under the ECHR.

Counsel for the father argued that children have constitutional rights which will arise in cases concerning applications for interim care orders. Those rights include a right to the care and company of the child’s parents as part of a marital family. Because the child in this case was born to parents who were married, he enjoyed the strong protection of the family contained in Arts.41 and 42 of the Constitution. In North Western Health Board v HW [2001] 3 IR 622, the Supreme Court held that there was a constitutional presumption that the rights of a child were to be found within its family.

Subsequent to the entry into force of Art.42A.1, children also have further distinct constitutional rights, which appear to include the right to the care and company of both parents. In PH v Child and Family Agency [2016] IEHC 106(14) Humphreys J held that Article 42A of the Constitution “enhances the right of the child to the society of both of its parents, and the presumption that the best interests of the child lie in the child’s enjoying such society.”

The father’s lawyer argued that the District Court was obliged to have regard to the rights of both the baby and the parents in reaching its decision. Failure to respect the father’s natural and constitutional right to fair procedures had the knock-on effect of producing a failure to vindicate his substantive family rights under both the Constitution and the ECHR.

In P, C & S v United Kingdom(15), the ECHR held that the lack of legal representation constituted a violation of Art.8 and found that the removal of the baby from its mother at birth required “exceptional justification” because the trauma places the mother’s physical and mental health under a strain and “it deprives the new-born baby of close contact with its birth mother and…of the advantages of breast-feeding.” It was also held that the removal deprived the father of being close to his daughter after the birth. Counsel for the father said that it was apparent from the ECtHR jurisprudence that a very high degree of justification was required for taking a child into care immediately after birth.

In summary, the father’s lawyer concluded that the district court had made an ex parte order on a ground that was explicitly linked to the parents finding out about the proceedings as opposed to any other immediate risk identified. At the interim care order hearing, the district court had the opportunity to afford an adjournment to allow for effective representation, but refused to grant such an adjournment. Therefore the high threshold required for taking the child into care immediately after birth had not been met.

Submissions for the Child and Family Agency

Counsel for the CFA argued that the SMcG case was distinguishable from this case. In SMcG, the parents were not legally represented, they did not have time to read the reports, had no access to historical information and the case was rushed on. In this case, the parents were represented, their lawyers were given an opportunity to prepare submissions and take instructions for the ICO hearing and the reports included material on historical matters relating to the child’s siblings. In SMcG all parties agreed to adjourn the matter for one week: there was no concern regarding immediate risk or harm to the child. In this case, there was no agreement to adjourn the matter and there was an immediate risk to the child.

Asked why an adjournment could not have been granted, counsel for the CFA said you cannot grant consecutive ECOs: this has not been done before. The CFA barrister said the immediacy of the risk which led to the ECO had been ameliorated by the ECO placement of the child into care: the clear legislative intention is to move from an ECO to an ICO. The District Court judge was given two options: either don’t grant the ECO, which meant returning the child to the parents; or proceed with the hearing and balance the interests properly.

The medical social worker reported that they had “cause for concern” as the mother missed several of her ante-natal appointments at the maternity hospital while at the same time she had attended a self-referred emergency appointment for abdominal pains. The mother reported she had been fasting for four days with no food or liquids. The medical social worker reported that the mother was expressing delusional religious beliefs.

In July the mother indicated that she wished to separate from her husband as she had experienced verbal and physical abuse for years. She declined an offer of support from a women’s refugee organisation. She also declined a referral to a special mental health team.

In July, the mother was admitted to a psychiatric hospital and the maternity hospital referred the case to the CFA. When the CFA sought to engage with the parents, the father told the social worker that she was to contact his wife through him. The father cancelled a planned meeting with the CFA. They have little access with their other children who were in care but had indicated they wished to have their children returned to them. The social worker said that the CFA’s attempts to engage with the mother were not successful.

At the end of October the mother self-referred to the maternity hospital and sought to have the labour induced. She was described as being “hostile and aggressive, she wanted the baby out today.” The mother said she was unable to sleep as she was seeking to protect her baby from the spirits who wished to take her child. It was agreed that the mother would return to the hospital two days later to induce labour.

The mother did not present, was not contactable by phone and the CFA did not have an address for her. The following day, a Friday, she was contacted and said she was too tired to come in the day before but would come in on Monday. She presented on the Monday and inducement of the labour was commenced. The mother had got things for the baby and said she had a plan for new accommodation, but the CFA did not know where it would be.

A pre-birth case conference was held on the same Monday in early November. The parents were invited but did not attend as this was the same day that the mother presented to the maternity hospital for inducement of labour. The child was placed on the child protection notification system. The following day the CFA secured an ECO in respect of the baby. The application included material on the historical proceedings in respect of the sibling children. The social worker said it was unclear how the mother could create safety for her child given that the mother showed no insight into how to take control over the influence of angels she said were speaking to her.

The social worker noted that the parents had ongoing serious difficulties with accommodation, they had lost a number of tenancies due to “erratic behaviour” and were unable to maintain stable accommodation suitable for a baby. The mother reportedly told the medical social worker that if offered hotel accommodation “she would leave the country.” The social worker said the evidence presented – in relation to the mother’s presentation, the lack of engagement with the CFA and medical professionals and lack of suitable accommodation – was not contested in a substantial way by the parents.

The midwife who attended to the mother during this labour and also a previous labour in 2016 said that she would have concerns about releasing the baby to the mother’s care on the grounds that the mother had no insight into her delusions and added she would be concerned for what the mother would do if she thought the baby was possessed. The midwife said the delusions were not a side effect of the pregnancy and she had seen no change in her delusions since her previous pregnancy in 2016.

On the day the child was born, the Tuesday, the child and mother were deemed “medically fit to be discharged”. The social worker feared that they “could disappear into the Dublin air”. Counsel for the CFA explained that once the ECO had been secured the CFA had responsibility for the child and so the child would need to be separated from the mother.

The barrister explained that there was no medical reason for the child to be in hospital and so it was better for the child to be in foster care than in hospital. The CFA indicated that they felt there was “no alternative available to them other than to separate the child and mother.”

The judge asked if any alternatives had been considered or proposed to the parents and sought evidence from the CFA of any such considerations. He noted that just because the parents were not co-operating did not mean they could not explore alternatives. He expressed concern that no alternatives were considered.

The judge asked why the child could not have been kept in the hospital to allow the parents to get legal representation and to allow the mother to come and go as she pleased and feed the child. He said it would have been less traumatic for the mother, whose previous children were in care, if the baby could have stayed in hospital where she could feed and look after the baby. It would have been much less traumatic than three garda and a social worker taking the baby by force. He said the mother reacted as any mother might by clinging to the baby. The judge said that while everyone acted with great sensitivity it was hugely traumatic event for the mother.

The CFA offered to arrange access between the baby and the parents with the foster carers, but the parents did not take up this offer. The judge asked was there any evidence that the mother was told of the offer of access and the whereabouts of the child. The CFA said the mother was hysterical and left the hospital. The mother was not told of the child’s whereabouts for a further three days. The judge said that although a Protocol on the removal of new born babies into care is not required under legislation, the European courts have suggested it would be helpful. The judge reminded the CFA of the obligations on the CFA under the Constitution and the ECHR to act proportionality.

In replying to the CFA submissions, junior counsel for the father noted that the District Court judge acknowledged that full instructions could not be taken and so made a shorter ICO order. He said an ECO cannot be extended as it cannot be the same emergency the second time around. The orders to date have a “cascading effect” so it is not correct for the CFA to argue that this application is a moot point as we are due back before the District Court. There is a material difference between a fresh hearing and one in which an ICO is already in place. Under SMcG, if there has been a procedural flaw you wipe the slate clean, the invalid order should not have an impact on the new order.

Judgment

a) The issues of mootness and adequate remedy
In order to address the preliminary objection that the proceedings regarding the ECO were moot because it had already expired, the judge first reviewed the authorities on mootness in the context of an ECO. The judge accepted that the continuity argument was valid in the context of renewed ICOs. However, the judge said he was not so sure that it had application in the context of an ECO, particularly one made ex parte, because the effects of such an order are not carried forward beyond its expiry and ought to have no bearing on the making of a subsequent ICO.

The judge pointed out that the making of the ECO was an indication that the matter was sufficiently urgent for the district judge to refuse an adjournment of the ICO. This factor went to the validity of the ICO itself rather than any ongoing continuity effect of the ECO and therefore it would not be sufficient on its own for the court to exercise its discretion in favour of hearing a moot issue.

However, the judge agreed that if the issue was moot because the ECO had expired, and given the fact that the maximum duration of an ECO is eight days and it was in this case only two days, it would be virtually impossible to see how an ECO could ever be reviewed. Given the serious consequences for the parties involved, the judge concluded that the court should exercise its discretion in favour of considering the issue particularly so in circumstances where it could arise again, at least from the CFA’s perspective.

In relation to the CFA’s argument that there was an adequate alternative remedy available to the parents in the form of an appeal to the Circuit Court, which is a full re-hearing de novo, the judge remarked that it had often been stated that the availability of an appeal does not cure the shortcomings of a hearing at first instance that fails to conform with the requirements of natural and constitutional justice. The parents were entitled to have a full and proper hearing at first instance and, armed with the benefit of that and any advantages that may have accrued from cross-examination, admissions and so forth, have their case fully reheard by the appellate court.

b) The emergency care order
The judge said that there was more than ample evidence before the court of the potentially very serious risk to the baby if the mother was permitted to leave the hospital with it. In addition, the judge rejected the proposition that there was no proper legal basis for hearing the matter ex parte because there was credible evidence before the court that serving the proceeding in advance could have prompted the mother in her delusional state to abscond with the baby to an unknown location.

The judge considered the factual background of the case noting that the history of the family was well known to the CFA for a number of years. He said that the CFA knew that the mother was a deeply troubled woman who appeared to have suffered from delusions for a long time, which continued up to and beyond the birth of the baby. The agency had been alerted to the mother’s pregnancy some months before the due date and had interacted with her on a number of occasions. They were kept advised by staff at the Dublin maternity hospital of developments as they occurred and they knew that the mother was being induced on a particular date.

It was evident, the judge said, that on that date if not earlier the CFA had determined to apply for an ECO ex parte. The couple’s previous child was taken into care unopposed when it was three days old. The judge was of the view that, as in T and K, the application was not an emergency in the sense of being unforeseen. There was plenty of time to prepare for it and particularly to consider whether there was any realistic alternative to taking the baby by force from its mother.

Acknowledging that it must have been hugely traumatic for the mother and her baby, the judge noted that the evidence given in the District Court showed that it was traumatic for the Gardaí and social workers involved.  All of them acted with great sensitivity and restraint, motivated solely by a desire to protect the baby and limit the trauma as much as possible to his mother. The judge remarked that the Strasbourg jurisprudence made it clear that it was incumbent on State authorities in this situation to consider all possible alternatives to the removal of the child from its family and that the action taken would have to be proportionate. The judge added that the Constitution demanded no less.

There was an onus on the CFA to demonstrate that the proposed measure, in effect the nuclear option, was being resorted to only after all other less intrusive alternatives have been considered and eliminated for good reason. Counsel for the parents had canvassed the possibility that the baby could have remained in the hospital as a temporary measure, which would have been far less traumatic for the mother.

Noting that counsel for the CFA had suggested that there was no medical indication to retain the baby or the hospital might have been unwilling to do so, the judge pointed out that it was speculation in circumstances where there was no evidence to suggest that this alternative had ever been considered or that the hospital had been consulted to ascertain its view. The judge was of the opinion that there was a world of difference, from the mother’s perspective, between the baby staying in hospital for a little longer and the baby being forcibly taken from her by members of An Garda Síochana and brought to an unknown location.

The judge said that the traumatic confrontation that occurred could well have been avoided. The mother could have been happy for the baby to stay in the hospital nursery where she could have come and gone to feed it and be with it whenever she wished. Given that the District Court had no evidence as to whether this or any other alternative was even considered, the judge concluded that the ECO could not be regarded as either constitutionally proportionate or Convention compliant and for that reason it should be quashed.

c) The interim care order
The judge acknowledged that counsel for both parents had raised a number of technical points but the fundamental objection to the ICO was based on a fair procedures argument because they had no sufficient time or information to prepare the case properly and thus effectively participate in the hearing.

The ECO provided for no abridgment of time for the service of notice of the ICO application although it was the court’s intention. It provided for both parents to be notified of the hearing by text message arising from the fact that they had on multiple occasions refused to disclose their whereabouts to the CFA and to answer their telephones. The judge pointed out that accordingly there was no way of serving the actual papers on the parents until they presented at court and that it was likely to happen even if the ECO had been made for a longer period.

The judge remarked that every effort was made both by the learned district judge and also by the CFA solicitor to ensure that both parents were legally represented, including the CFA paying for a private solicitor to act on behalf of the mother. There was no doubt that both legal representatives had had a relatively short period of time to take instructions and prepare the case. The judge also noted that the CFA solicitor had offered to consent to an adjournment for seven days with the baby remaining in care but this offer was refused unless the baby was returned.

In relation to the proposition that the CFA could have applied for a further ECO, the judge found that there was no power to extend an ECO under s. 13 of the 1991 Act in contrast to the express power provided for in that behalf by s. 17. If an ECO was granted on the basis of an immediate and serious risk to the health and welfare of a child, the very purpose of the order would be to remove that risk and so how a subsequent ECO could be applied for was hard if not impossible to envisage.

Accepting that the current case had superficial similarities to the facts of SMcG, the judge found that the most important difference was that the infant in the present case was already in care and might have been potentially exposed to risk if the case was adjourned, a feature entirely absent from SMcG. Further both parties were legally represented and had a fairly significant period of time, albeit relatively short, to take instructions and prepare the case. The judge rejected the claim that the parents’ lawyers were left in the dark as to what the basis was for the other children being taken into care given the detailed chronology of the history of all the relevant events, albeit in summary form, contained in the social worker’s report.

The judge admitted that the lawyers were perfectly entitled to see and have regard to the earlier social work reports that led to the making of the care orders in respect of the other children. However, the judge questioned to what extent the parents were entitled to reopen the matters dealt with in those reports, which were previously made available to them but they did not challenge. The judge added that in making the ICO for a period of 21 days, rather than a shorter time frame, the district judge may have had in mind to give the parents’ lawyers sufficient time to obtain these historic reports, analyse them and if necessary put any additional matters arising to the CFA witnesses on the next occasion.

The judge found that in all the circumstances the learned district judge came to the correct conclusion in declining to adjourn the case. He was faced with the extremely difficult task of balancing the competing constitutional rights of the parents and the child and he appropriately and correctly had regard to the primacy of the child’s rights. The judge said that the reason why the parents’ lawyers had a short period of time to deal with the matter was the parents’ consistent refusal over the years to engage with the CFA or to disclose details of their address or whereabouts at any given time. This meant that it was practically impossible to serve them with documents and the only way they could be notified that a hearing was to take place was by text message. To that extent it was clear that their own conduct was the cause of any shortcomings in the hearing.

The judge addressed then the criticism of the district judge that he prejudged the outcome of the ICO by refusing an application for an adjournment on the basis of a stated risk to the baby when at that stage he had heard no evidence. Rejecting the merit in this submission, the judge found that adjournments were frequently sought and dealt with on the basis of an outline of the background given by the parties’ lawyers and it would be surprising if the court was required to hear all the evidence before deciding whether a case should be adjourned or not.

Finally, the judge found significant that in the judicial review application, neither the mother nor the father had elected to swear an affidavit or dispute the contents of any of the affidavits with exhibited reports that have been put before the court by the CFA.

For all the above reasons, the judge refused to grant an order of certiorari quashing the ICO.

Return to the District Court

The case returned to the District Court. The parents were present in court and legally represented. An application was made for an extension of an interim care order for a further two weeks on consent, under section 17(2) of the Child Care Act 1991. The GAL testified that she supports the application made by the CFA.

The social worker testified that the concerns which warranted an interim care order still existed. The child remained in the same placement and was thriving. The social worker said there were no ongoing health concerns about the child’s high-pitched scream. The social worker told the court the CFA has set out a road map for reunification between the parents and the child and outlined it to the parents at a meeting in the social work offices.

She said there is a “level of agreement” regarding how to progress the reunification road map. The road map includes: engaging with social workers; being visited and assessed by social workers in the parents’ accommodation; engaging in safety planning; seeking psychological support; submitting to a parenting capacity assessment’ and for the mother to engage with a psychiatric assessment. The mother agreed to five of the six items: she did not agree to undergo psychiatric assessment. The father agreed to all proposals.

Both parents consented to the order. Based on the social worker and GAL’s testimony and submitted reports, the judge granted the s.17(2) application in respect of the child for a period of two weeks. There was no significant change to the grounds for the ICO as granted. The judge continued the directions in relation to the medical directions on consent. He also continued the direction that the address of the foster carer was not disclosed. He noted that the engagement between the parents and the CFA has been an issue in this case and so welcomed the engagement that had recently taken place, saying it “opens the door to progress being made, it is very welcome and very significant”

Since the child was removed into care, the father has had daily access with the child. However, the mother has had no access with her child. A meeting was set for the next work day between the parents and the CFA to put in place a safeguarding plan to allow for access to take place.

The court heard that it was planned to organise a migrant support worker for the mother.

CFA told to take into account the religious beliefs of mother in assessment

When the case returned to the District Court two weeks later, the District Court asked the CFA to take into account the religious beliefs of the mother when identifying and sourcing an appropriate professional to proceed with the parenting capacity assessment.

Counsel for the mother sought an exception to the in camera rule to allow an advocate for the mother to attend the proceedings and provide support. The judge granted the exception. An advocate for the father was also in court.

The solicitor for the CFA sought a 28 days extension of the interim care order on the consent of both parents. The CFA said the conditions that led to the making of the initial ICO continued to exist.

When the judge asked how the baby was, the social worker said that the baby was doing very well but that he could be very unsettled at night time with persistent high-pitched crying and screaming. The baby could be upset and inconsolable for a long period of time. The social worker said that a paediatrician was assessing the situation.

The judge then asked whether the engagement of parents with the social workers had improved. Acknowledging that it could be difficult at times, the social worker said that both parents were doing their very best. She said that the mother had weekly access to the baby and the father had daily access to the baby but he had missed a number of visits.

During cross-examination by counsel for the mother, the social worker accepted that the mother had attended two access visits, which were very successful, and that the intention was to increase the access. Access visits were scheduled to once a week for the next few weeks. Counsel for the mother said that her client would like to increase the access immediately as she was concerned that the baby was not putting weight on and was very stressed and screaming at night. The social worker pointed out that there was an access review scheduled for early January.

Counsel for the mother asked the social worker if she could confirm that the report sought from the paediatrician would include an assessment of the impact of the separation from his mother on the new-born. “Yes,” answered the social worker.

The court heard that a parenting assessment had been initially scheduled in four months. Counsel for the mother said that her client thought that was far too late and asked what work had been done in the last month to organise it. Admitting that they were in the process of sourcing an appropriate professional, the social worker said that consultants carrying out such assessments had very long waiting lists. She said a consultant had been identified but the assessment could not start for another three months. “My client wants reassurance that this matter is given absolute priority,” counsel for the mother said.

Counsel for the father noted that in the proposed roadmap to reunification included in the social worker’s report, one of the factors outlined was that appropriate accommodation be found. “That’s correct, it would be very helpful,” said the social worker, adding that she would be happy to provide support in the circumstances such as writing letters explaining the situation.

The court heard that during access the father noticed that the baby was in a buggy that was not appropriate for a new-born. The social worker answered that the buggy was fully adjustable but the father had an issue with it. Noting that the baby had been wearing the same clothes, the social worker confirmed that the father could bring clothes to the baby at the next scheduled visit.

Counsel for the father: “Will there be an investigation of the impact of maternal separation and trauma on the infant?”

Social worker: “I can certainly raise the issue with the paediatrician.”

Counsel for the father: “Given the traumatic situation of the separation, has this issue not been already arisen with the paediatrician?”

Social worker: “No.”

The social worker explained that the paediatrician initially said that the child was very young and that the night-time upset could be related to colic. The court heard that the parents were concerned. The social worker said that the baby cries usually quite late after the last feed and reiterated that the paediatrician thought it was just  colic. The judge directed that the matter should be addressed with the paediatrician as a matter of urgency.

The GAL told the court that both parents were consenting to the extension of the interim care order. The GAL said that the parents were putting in a lot of effort and that the parenting assessment was welcomed. The primary issue was how the mother’s beliefs were impacting on her parenting. However, there was a lack of understanding of her religious beliefs and it was important that those carrying out the parenting assessment would engage with how to understand them. The GAL said that there was a need for somebody with experience in this area.

The GAL said that access was going well and that a review would follow to determine whether it could be increased. She agreed that the paediatrician was the appropriate person to address the current issues with the baby.

Given the evidence presented and that both parents had consented, the judge granted the extension of the interim care order for four weeks. The judge said that existing conditions were to remain and added a new one. The judge directed the CFA to obtain reviews regarding the nutrition of the new-born and presentation at night from the paediatrician. “Ensure that the paediatrician is fully informed as it is quite concerning. That particular concern should be addressed,” added the judge.

In addition, the CFA was told to ensure that, when identifying and sourcing an appropriate candidate to proceed with the parenting capacity assessment, the professional would have the appropriate qualifications to engage with the required understanding of the mother’s beliefs.

The judge also noted that advocates, who have specific duties, had been appointed for each parent.

The care order and the access application on behalf of the mother were adjourned to the same date.