An Emergency Care Order for a young Roma child was sought in the District Court by the HSE, but the application was withdrawn following a DNA test. The child, (E), had been removed from her family the previous evening by An Garda Síochána under Section 12 of the Child Care Act because they believed she was not of Roma ethnicity due to her blond hair and blue eyes. It was also felt that if she was not their biological child there would be a flight risk.
Two days later, when DNA test results proved that her parents were her birth parents, the HSE withdrew their application and did not bring a further one. The young girl was reunited with her family immediately.
As the inquiry commenced in the District Court, the barrister for the parents told the court there were “breaches of Section 31 of the Act [the in camera rule], the application was in the newspapers before it was in the court.”
The Garda who invoked Section 12 of the Child Care Act 1991 – which can place the child in emergency care for up to a period of eight days once a court order has been granted – told the court that colleagues had first come into contact with the family three to four years ago in relation to another daughter, B, now 18, who was pregnant. It had been a child protection matter and there had been other child protection concerns. The family were also known to the Gardaí for other reasons, and a Garda had been assigned to the family for B in particular.
Garda: “Yesterday after lunch I was made aware that information that was received by An Garda Síochána that a girl in [that] family had blond hair and blue eyes and that the originator of the information was a local lady from Eastern Europe. She believed the child not to be of the family and had concerns for her welfare. Those concerns were based on her experience of her home country.
On receiving the information, I and my team commenced investigations into the background of the family. E was identified to us as [the child’s name, W]. We checked with the Department of Social Protection and no [W] was being claimed for. However on official documents her name was [another name, X] and claims were being made for her. In the local school we enquired with the principal. In the school her name on official documents is [X] but she is known generally to her peers and teachers as [W].”
He explained to the court that he went to the family home after making the enquiries with two colleagues. They were there before four o’clock and were invited in, both parents were there, but he was not sure which children were there. He said Roma were a very sociable people so family and friends often call around.
They made enquiries as to the identities of all of the children. He thought Child B, Child D and Child E were there. They saw Child E immediately and spoke to her.
Garda: “We were struck by the fact she had blond hair and blue eyes and looked nothing like her siblings or her parents. My colleagues asked for documentation in relation to all the children in the house, the mother provided in it relation to two of the children, Child D and Child F. When my colleagues continued to speak to the family I went back to the control car and made enquiries, I checked with the Coombe. I got to speak to the assistant matron who was on duty at the time. She made enquiries and as a result of those enquiries there was no record of [Child E] being born…Later on a check was carried out and the birth was indeed identified.”
The Garda said the child referred to herself as [W] and they had received no documentation for her while in the house.
He made enquiries into the genetic issue of blond hair and blue eyes. He spoke to a consultant in the A & E department of a children’s hospital, who told him it would be highly unlikely that a child of Roma ethnicity would have blond hair and blue eyes.
Garda: “Based on the striking difference of the child to her siblings and her parents, to the fact the family could provide no documentation, to the fact she was more comfortable using a different first name, based on those facts I believed I had a serious concern as to whether [Child B] was of the family. I further considered the case in relation to the immediacy of the matter in that if the child was not of the family there would be a flight risk and the child would be removed from the family.
I based the consideration on the fact a sibling of 16 is in Romania, and based on dealing with the Roma community and children often live separately to their parents around Europe and move across Europe frequently.”
The Garda believed that there was a “serious and immediate risk the child would leave after I left the house.” He decided to invoke Section 12 of the Act, taking the child into care and handing the child to the HSE.
HSE barrister: “Did you discuss your concerns with [the mother]?”
Garda: “I attempted to, there were a lot of people in the house, it was quite emotional.”
The Garda said he asked the parents about her appearance and they just replied: “She is my child.”
Garda: “A birth cert and passport was produced by the mother. The birth cert does refer to [gives child’s name] born to those parents. In my opinion the child that I met is not the same child whose photograph is on the passport, it appears to have a picture of a dark skinned child.”
There were recent photos of a blond-haired blue-eyed child he had been shown, including a school photo – that was the child he had seen yesterday.
HSE barrister: “Did you raise the question of a DNA test?”
Garda: “The issue was raised and I informed the group that the HSE would facilitate in relation to DNA.”
HSE barrister: “If she was to be returned would you have concerns?”
Garda: “I would in relation to her leaving this jurisdiction.”
He told the court that he dealt “with the community and New Communities living in [this location], with all the communities we have made great strides … except for the Roma Community. I’m afraid I cannot see any option within the Roma Community at the moment for ensuring this child would remain in this jurisdiction.”
He explained that in the past with other cases when agreements had been come to with the Roma that “meetings are held and decisions are made by the menfolk that override the best intentions of the ladies involved.”
Barrister for parents: “All of this happened from a call … that she did not look Roma?”
Garda: “That was the disclosure but not the substance of the investigation.”
The barrister summed it up as the person who rang them had thought: “That little girl doesn’t look Roma, she must be abducted. Did you clarify the background of this lady to see why she would be so knowledgeable?” The Garda said he had not spoken to her.
The parents’ barrister then asked about Child B’s case, the Garda said that supports were put in place for the pregnant teenager and the case was closed when she had her child.
He was then asked to tell the court what exactly the family were known to the Gardaí for.
Garda: “[The father] was convicted in relation to road traffic offences, mother was convicted of theft. I’m not talking about any serious gang type … they are known to the Gardaí and have a community Garda assigned to them.”
The barrister then talked about Child E’s school, his understanding was that the school had no major concerns. The Garda told him that the child was known to the principal, who had educational concerns. On one occasion she had expressed a welfare concern to him.
Other people he had spoken to about Child E were the Community Garda assigned to the family, the case manager for Child B, colleagues in social protection and the HSE, the Garda said.
The parent’s barrister confirmed the HSE knew the family because they had given them support in respect of the younger children about 12 months previously, then the case had been closed.
Parents’ barrister: “E was recorded by way of her passport, birth certificate, and with the Department of Social Protection. I put it to you that at all times they said this is our child, what did you say, she doesn’t look like you? You had all the documentation before you left the house.”
Garda: “I had documentation with me but it did not satisfy me that it was the same child because of the striking physical differences, the child uses a different first name.”
Parents’ barrister: “What question did you put to the consultant?”
Garda: “Whether in his experience would a child of the Roma community, of seven years of age, have blue eyes and blond hair? He said, ‘no, it would be very, very unusual’.”
The parents’ barrister gave another photo into evidence which was a large close up school photo of Child B with her brother. The Garda felt it clearly showed her blond hair and blue eyes.
The barrister put it to the Garda that the child was significantly upset being removed from her family.
Garda: “Yes, I have no doubt that she was attached to the parents and she was upset.”
Parents’ barrister: “What it comes down to in the end is somebody’s opinion that she does not look Roma … was there anyone else in the house who could have been seven years old?”
There had been a lot of people in the house at the time, said the Garda.
Parents’ barrister: “She was being removed from people she believes to be her family.”
Garda: “I don’t doubt they’re her family. A child can be taken from a family that are very abusive towards them and still be upset. I’m not saying that’s the case here, but children living in a home who they believe to be their parents are naturally attached to them.
“I knew the repercussions of making the decision very clearly, I based my decision on the welfare of the child, there was a risk that that child was not of that family and if I was to leave that house without that child there was a significant risk that child could leave that family.”
Parents’ barrister: “I’m putting it to you there was no other seven year old girl in the house, the family had documentation and here was a seven year old girl, you based your decision on the fact she looks different – based on your views.”
Garda: “No, it’s not as simple as that, it was based on the fact she was using a different name, based on the fact the family were known for child welfare purposes to the HSE and Gardaí.”
Parents’ barrister: “Your perceptions of the Roma community [is] that the children move around from country to country?”
Garda: “From my experience I know the children move across Europe to wider family members.”
The barrister told him Child C was visiting her grandmother and would be returning.
Garda: “That’s exactly what I said, they have large family networks and they do move between them, they’re an international group of people and of course they do have close relatives in Romania.”
Parents’ barrister: “They have been living here since 2001. You are talking about the Roma community, what has that got to do with this family?”
Garda: “They are Roma. They profess to be Roma. When I made my consideration I said I was aware historically of that family … If a child is at risk I deal with it irrespective of culture, ethnicity or creed.”
The Garda said that if it was the same situation with an Irish family they would investigate it.
Garda: “If a child was so strikingly different to the rest of the family of course we would investigate it … We do not have the luxury of saying we do not fully investigate different things … I based my decision on the circumstances as I had them, based on the welfare of the child, if I went back today knowing what I know now I would still make that decision.”
The barrister told him that Child E was their daughter, the parents were prepared to have a DNA test carried out and he had their up-to-date passport for the child. The removal was baseless and she should be moved back to them.
Handing in the passport is not a bar to travelling from the country, they can travel to the UK, the Garda replied.
The barrister asked him how were the facts of the case on the BBC and RTÉ? How had it been leaked? The school principal was concerned the press would turn up at the school looking for this child.
Garda: “I rang my superintendent to express my shock that the details were leaked … it hugely complicates this and puts huge pressure on the children. We work very low key we absolutely do not work with the media, I abhor that it was leaked, it has made my life so much more difficult and it will hugely upset the family.”
The Garda then told the court that nine Gardaí had gone up to the house when the Section 12 had been invoked, these included a supervisor, an inspector and another sergeant.
Parents’ barrister: “Hardly discreet, is it?”
Garda: “There was one marked patrol car parked some distance away. When the Section 12 was proving difficult those members walked to the house, they weren’t wearing yellow jackets, they were in plain clothes.”
The judge asked him if from his dealings with the child she had appeared to feel this was her family. He told him she had. The judge asked him if the consultant had admitted the possibility that a child from a Roma family could have blond hair and blue eyes. The Garda said yes, that he had said in certain circumstances, there might be some genetic possibility. But no, he had not given a ratio.
The social worker told the court that the little girl was quite scared when she met her. They explained the situation to her and she became quite upset but then settled at the foster carers’ for the night. The foster carers had brought her to school that morning and would be collecting her later.
Social worker: “The only way we can be satisfied that she is of her family of origin is with a DNA test. It can take possibly up to eight days, hopefully Wednesday or Thursday of next week the results will arrive.”
The girl had been taken into care due to their “concerns about her living with her family of origin and a concern of a possible flight risk.” The family had been known to the social work department since 2009 in relation to Child B and Child C, then the case was closed. In 2012 they became known again to the department in relation to Child F, supports were put in place and the case was also closed.
The parents’ barrister put it to the social worker that if the public health nurse had been contacted from the last district where the parents had lived, she could confirm that the young girl was born there.
The social worker told the court that the Gardaí had reported the concerns to their department and they had to follow it up.
Parents’ barrister: “What you seem to be saying is you don’t have any concerns personally, you are acting on the Garda’s concern?”
Social worker: “We have to act on foot of a report from the Gardaí.”
Parents’ barrister: “Surely you have to assess the effect on the young girl of being removed from her family? I’m suggesting to you unless there is a good reason for her to be kept away from her family, I would have thought it was incumbent upon you to form a view as to whether it was necessary or not. What explanation did you give the seven year old girl?”
The social worker told him how the little girl “kept saying again and again she wanted to go back. She said she believed she was going because she didn’t look like her brothers and sisters. We explained she’d have to go and stay with another family because we needed to make sure that she was safe.”
She had not looked at any DNA facilities in Ireland, the sample was being sent to the UK as they were not aware of a facility in Ireland that could carry out the test as quickly.
The judge asked her why the assessment could not be carried out with the child at home. She was a flight risk, said the social worker, and there no family members she could stay with. It was the best decision until the social work department met with the mum and dad. Her assessment of the flight risk was based on the Garda’s opinion.
To what extent if any did their previous decisions with the other children inform them, asked the judge. She told him it was a separate matter, and there had never been concerns in relation to Child E. In her opinion, was Child E a member of the family, asked the judge. She said that she did not feel she and her sister were part of the same family based on her observation.
The parents’ barrister asked her if her opinion was “entirely based on appearance not based on interaction.” She told him it was “entirely down to looks”.
Both parents gave their evidence through an interpreter. The mother told the court that that she had six children and two grandchildren.
Parents’ barrister: “Is [Child B] your daughter?”
Mother: “She is my daughter.”
The mother said that she was not an Irish citizen and was last out of the country the previous year for two weeks. She did not travel a lot.
She told her barrister that the Gardaí had wanted to take her child before they saw the passport. She was prepared to take a DNA test and to give all passports and travel documents to the HSE, who could come at any time to check she was there.
HSE barrister: “Has anybody before suggested that [Child E] is unlike the rest of your family in appearance?”
Mother: “They said they wondered because she is very beautiful but they didn’t say she was not my daughter.”
She said her youngest son had blue eyes as well and the other children were all brown eyed with brown hair.
Could she see why the social workers have concerns, asked the HSE barrister.
She was only afraid that her daughter was away from her and could become upset. She wanted her daughter to be with her, explained the mother.
With regards to travel, she told the court that her husband went to England and Romania last year and Germany this year, but her younger children had not travelled, they had stayed in Ireland.
HSE barrister: “The concerns of the HSE social workers are that if [Child E] was returned to you she might be taken out of the country. Do you understand those concerns?”
Mother: “You can check all the borders and put her name on the list so she can’t go out.”
HSE barrister: “Do you accept there are ways of leaving the country without having a passport?”
The mother said she had never heard that before. She told the judge her travel document were passports.
Judge: “You say your youngest son has blue eyes, do you have a photo of him?”
A photo was then shown to the court, which the judge asked to be passed to the other witnesses.
The father told the court he had a passport and ID card from Romania.
Parents’ barrister: “You heard the evidence your wife gave, you know this case is about [Child E]. Is [Child E] your daughter?”
Father: “Absolutely 100 per cent yes. All what I know is that [she] is my daughter and I don’t care what other people say.”
He was prepared to have a DNA test, and he said in the meantime his daughter should be at home, it was up to the court, but he was prepared to hand in any passport and would bring all his documents to the court. He was also prepared to have social workers drop in at any time of the day or night to make sure [Child E] was there.
HSE barrister: “Has it ever been suggested to you before that [Child E’s] colouring is unusual for your family?”
Nobody had suggested it, they had only said she was very beautiful, he replied.
HSE barrister: “Can you see why people might say it was unusual?”
Father: “I don’t understand, I have another child with blue eyes, it’s not my fault she has blue eyes. [Child F] is now four, his eyes are blue. All of the children are not very dark because me and the mother are not dark, we are light skinned, some of the family have blue eyes, some of them are blond.”
The father said that in the last year he had travelled with his identity card to England and Germany and was last in Romania in January or February of this year.
The Garda went back into the witness box to give his opinion as to the colour of Child F’s eyes, in the photo – he told the court they were blue. He added that he had looked at all the kids in the house and had not seen another one with blue eyes.
Judge: “Did you examine the other children in the house?”
Garda: “The younger kids all seemed to be Roma.”
The judge asked him what the ethnicity was of the young boy in the photo.
Garda: “The children in the house were dark skinned, the child identified is strikingly blond.”
Judge: “That’s not in question.”
Garda: “She and her older sibling were so different.”
Judge: “How common would it be that you put two family members together and they don’t resemble each other, how often would it be that there isn’t a resemblance?”
Garda: “It does happen.”
Judge: “If it’s needed badly enough how quickly can the DNA be done? It’s been suggested there are facilities in Ireland.”
It was established that the forensic science laboratory of An Garda Síochána could have the DNA test results back by the following afternoon.
The judge asked the HSE barrister if it would be fair to say that the only identifiable risk to the child was that if she was not a member of the family, then there was a risk to her.
HSE barrister: “If she is not biologically related to these people she might be removed from this country and that can be resolved by a DNA test.”
A DNA test would therefore rule out the risk to the child’s welfare.
Submissions
Parents’ barrister: “The concern comes down in reality that some Estonian lady contacted the Gardaí and said that this young girl could not be a member of the family due to her appearance. That remains to be the extent of it save for the sergeant thinks the same thing. There is no evidence of any other kind, there was a conversation where he commented on what the consultant said to him. I don’t know what the qualifications of that person were on genetics.
“It comes down to this, that the child looks different to the rest of the family. If it was an Irish child would it have given rise to the same concern? I very much doubt that any member of An Garda Síochána, on the basis of a phone call from a member of the community saying she didn’t believe she looked like the rest of the family [would lead to the same scenario].
“This is a draconian jurisdiction…one has to ask can a phone call justify the reality that it has led to…the court has to turn its attention to risk and how we can minimise risk. The reality, judge, is the second leg of it, everything you’ve heard about this child is a child whose welfare will not be helped by being removed from her parents for any length of time. It all comes down to a flight risk based entirely on the Garda’s opinion, on his perception of what happens in the Roma community, none of it is based on this family. It’s an unfortunate manner in which to approach it.
“This family have lived here for 12 years now, the court can make a Supervision Order in the interim. It is now being booted about that a TV3 reporter got an email, maybe it’s just a coincidence that these phone calls were made in the aftermath of the news … there is a photo on the front of the Herald of the young girl from Greece but about this story.
“After eight days there are a lot of people [where the parents live] who will have decided this is another case like the one in Greece.”
Judge: “But I’m afraid I have to ignore it.”
Parents’ barrister: “But the potential effect on the welfare of the child is if you make the order the HSE are asking, this matter is now in the public domain, publicity is omnipresent today, it will be a miracle if it’s not known to the community who the family is. The impact this will have on the child…”
The barrister continued that he did not doubt these were the child’s parents.
Parents’ barrister: “When you analyse the evidence of the case it comes down to [the claim] she doesn’t look like the rest of the family and she can’t return home because Roma are mobile and [the Garda] doesn’t believe the parents can be trusted.”
After a few moments, the judge asked the HSE barrister what were the consequences for the child if the order was not justified.
Judge: “I have a very unorthodox suggestion, I would like to see the lawyers in chambers.”
Both teams of lawyers rose and went into chambers.
Over an hour later, when it had been established that the DNA test results could return the following day, the HSE barrister told the court that the parents had consented to their child remaining in foster care for one more night. It was agreed that access would take place after school the next day for two hours.
It was also agreed that the matter would be put back in that next day for five o’clock if it was necessary to bring further applications.
Parents’ barrister: “Apparently evidence has been disseminated, the media is laying siege to the place [the District Court]. We’ll endeavour to get our clients out without being seen by the papers, it’s a matter that we ultimately need to revisit.”
The media was reporting what the Garda had given in evidence that day about speaking with the consultant in the hospital.
Judge: “There is a practical and purposive agreement to an order being made until 5 tomorrow. Tests can be done immediately and it seems that is the way to resolve it in the circumstances at present.”
When the case returned the following evening, the DNA test results showed that the child did indeed belong to the parents.
HSE barrister: “I’m happy to say the DNA test results are in and the parents are the parents of [Child E].”
She had no further application and no issue in respect of costs for the parents’ legal team.
The parents’ barrister requested the judge to certify costs for two senior counsel within the costs.
Judge: “In the extraordinary circumstances of this case if I have the power to certify two counsel then I will certify.”
He also included the costs of the interpreter.
Publicity
On the subject of publicity, the barrister for the parents told the court he had been instructed there had been significant numbers of the press outside his clients’ home. While a younger member of the family had spoken to the press initially, the information that came out in evidence had not come from her. The family wished to release a press statement which he requested the judge to read. He believed it was compliant with Section 31 of the Child Care Act, the only issue was whether it required a relaxation of the in camera rule.
The HSE barrister said she had serious concerns in relation to Section 31, the DNA test results had been leaked while the case was in progress.
The family’s documents were handed back – the mother’s passport, the father’s identity card, the child’s passport and photos.
While the HSE barrister was reluctant to allow the press statement to be released, the parents’ barrister put it to her that in light of what had happened, the parties were entitled to be able to put some balance on the process.
The HSE barrister argued that there were a number of points in the statement which she did not think should be in the public domain.
Judge: “Are there any points in there not already in the public domain?”
HSE barrister: “Within the integrity of the court process, it’s for the court to look at that statement and look at a section 31.”
Parents’ barrister: “The question is will it lead members of the public to identify a child, they have in reality been widely identified. Her submission is simply not based on reality, this statement is not going to identify the child, it may require a relaxation of the in camera rule.”
He did not think it was in breach of Section 31.
Parents’ barrister: “There is quite clearly an interest in my client trying to set the record straight, a wave of hysteria has arisen in relation to this case.”
Judge: “It is at this stage in the interest of the child that a balance be drawn, in the context of the opinion and the widespread publicity.”
HSE barrister: “The greater concern of the HSE has been the media circus that has developed.”
The judge decided that Section 31, subsection 2 of the Child Care Act provided the discretion to lift the in camera rule, taking into account High Court rulings on the matter. He said while the purpose of the in camera rule had been set out, “the protection of minors from publicity, that has been emasculated by what has happened and the reality of what has happened, almost without exception the evidence given in this court is within the public domain, the purpose of the in camera rule is effectively a dead letter.”
He added that all decisions fell under the Child Care Act, and the interests of the child were the first and paramount consideration.
Judge: “This child is readily identifiable, that is the reality. It appears to me to be in the interests of the child that a statement be made by the parents. Firstly I am of the opinion that if no statement is made the likelihood is that the family will be hounded for a statement in any event, so the making of a statement will ameliorate the family being pursued by the press.
“Secondly, it is in the interests of the family themselves and of the child in the family that the family’s view be put on the record. This will be a memorable event in this family’s life and for the child herself, although hopefully it will not be something that will cause any long term adverse effect.”
He said a response was needed on record due to the countrywide, if not worldwide, publicity. The situation was novel and he felt the purpose of the in camera rule had already been defeated. The rule would be lifted in relation to releasing the statement, but it would still apply to anyone involved in the case.
“I can only express the hope that the family will be able to escape the glare of publicity as quickly as they came into it, and they will be able to settle down and get one with their lives,” he concluded.
