A man whose newborn son remains in interim care after being forcibly removed from his breastfeeding mother in a maternity hospital has argued the “draconian” way in which care orders were made breached his rights.
This case represents perhaps the first opportunity for the High Court to review how emergency care orders (ECO) are made by the District Court under the 1991 ChildCare Act, Teresa Blake SC, for the father, told Mr Justice Séamus Noonan.
The issue is whether, in a democratic society, it was necessary to act in this way to protect this child and the answer “must be no”. There were mental health concerns about the mother and homelessness for the mother “also appeared to be on the horizon” but there was no necessity for “such dramatic intervention” and alternatives did not appear to be examined, counsel argued.
What was done appeared to have been on the basis of a “crisis management model”.
Earlier, the judge observed, before an ECO was sought by the Child and Family Agency (CFA) earlier this month, the father, who has several other children in care, was "not doing much engaging" with social workers and the parents had not opposed the care orders for the other children.
Ms Blake agreed there was “inconsistent” engagement but argued the CFA had not shown, as required under the 1991 Act, an “immediate and serious” risk to the newborn’s health and welfare such as required an ECO permitting his forcible removal from his mother.
The ECO was made one day after the child’s birth and an interim care order (ICO) was made two days later, she said. In considering whether there was a breach of the father’s rights to constitutional justice and fair procedures, the court should consider both orders as “a continuum”.
A parent must have the opportunity to challenge the evidence leading to the making of an ICO for their child but this man got no such opportunity, she argued.
Constitutional justice
At the ICO hearing, the father instructed his solicitor the newborn could be returned to the care of his parents but his solicitor did not have the full information on which the CFA relied, including reports relating to the care orders for the other children, and his solicitor’s application for an adjournment of the ICO hearing was refused, she said.
This was a denial of constitutional justice, fair procedures, the right to effective legal representation and not just a matter of “procedural irregularities”. She was making submissions in proceedings against the CFA by the mother and child over the baby’s forcible removal. The father is a notice party.
A social worker had said physically removing the child was “the absolute last resort” arising from fears the mother could flee the jurisdiction with the child if she learned of proceedings to have him taken into care. The parents have several other children in care arising from concerns over domestic violence, a chaotic lifestyle, neglect and limited engagement with social workers who also referred to the mother having a strong sense of spirituality and having made the sign of the cross on the children’s heads with nail varnish.
The woman claims the forcible removal of the newborn, whom she wished to continue breastfeeding, breaches their personal and family rights under the Constitution and European Convention on Human Rights.
In opening arguments later on Thursday, Barry O’Donnell SC, for the CFA, argued the ECO has expired and the court was effectively being asked to give an “advisory opinion” about how future ECOs should be approached which it should not do. There was serious concern for the newborn, matters had to move with reasonable speed and that was important when considering the fair procedures claim, he said.
The case was “perplexing” for reasons included it remains unclear whether the parents are pressing for the child’s return to their care, he added. The hearing continues on Friday.
