Parents of children who were taken into care after serious allegations were made against them have taken a High Court challenge on Constitutional grounds to the legality of the care order.
The parents, who deny the allegations, argue the care orders are invalid and unconstitutional on grounds including the constitutional protection of parental autonomy in relation to their children.
They claim the orders were made without evidence to support them and the District Court had relied on hearsay.
Justice Gerard Hogan has allowed media reporting of the case subject to restrictions aimed at preventing the identification of the family.
There can be no reporting of the number of children involved, the location of the parents, their nationality or any details of the allegations against them except that they are "very serious".
The District Court last September granted an application by the HSE for emergency care orders concerning the children.
Interim care orders were later made and now all the children are subject to full care orders, dating from January last, which extend into next month.
The court heard the District Court made care orders in relation to each of the children under Section 18.1 of the Child Care Act 1991.
After the parents went to the High Court, Mr Justice Hogan directed an inquiry, under Article 40 of the Constitution, into the legality of the orders.
When that opened today, Felix McEnroy SC, for the HSE, argued the orders were valid.
Outlining the parents’ case, Berenice McKeever BL argued the orders are both unlawful and unconstitutional and the relevant provisions of the Child Care Act are unconstitutional.
The District Court judge failed to address the necessary evidentiary aspects or the constitutional obligation to maintain the rights of parents and children, she argued. There was "a gross lack of fair procedures" and a failure to recognise the constitutional rights of parents and the family within the meaning of Articles 41 and 42 of the Constitution.
There were also "serious questions" concerning the constitutionality of Section 18, she added.
Given the wording of Articles 41 and 42, Section 18 could not be interpreted in a constitutional manner, she argued.
"We say the autonomy of parents in Article 41 is manifest, it is as near to an absolute provision as the Constitution can provide."
The Constitution afforded "trenchant protection" of the family unit and parental autonomy, she argued.
Mr Justice Hogan said he was very familiar with Articles 41 and 42. While general parental autonomy was not in dispute, the "real issue", given the very serious allegations against these parents, was whether Article 42.5 came into play.
Article 42.5 provides, in exceptional cases where parents fail in their duty towards their children, the State as guardian of the common good shall endeavour to supply the place of the parents with due regard for the rights of the child.
The judge also referred to a new article enacted as a result of the Children's Referendum last year, but said that was "in a bit of a limbo" given a legal challenge aimed at overturning the referendum result.
Earlier, a number of preliminary issues arose in the case, including whether Ms McKeever was entitled to represent the parents without being instructed by a solicitor. That issue was raised by the HSE.
Ms McKeever argued she was a fully qualified barrister entitled to appear without a solicitor.
This issue was raised at the 11th hour with no notice to her and the court should not allow it be raised now, she said. The issue affected not just her but was of general application and she would need some time to address it.
Gerard Durkan SC, for the Attorney General, said he was not a party to the case but was there to assist. The priority was the welfare of the children, he said.
The judge said he sympathised with Ms McKeever who had no notice of the issue and would allow her to make arguments "as counsel" subject to the parents' undertaking her status would not be used as a basis to dispute the validity of whatever order he made in this case. That undertaking was given.
The hearing resumes tomorrow.
