High Court rules Roma baby should stay in HSE careFriday 08 November 2013 22.42
The High Court has directed that a Roma baby girl should remain in the interim care of the Health Service Executive despite her mother's wish to return to Romania with the child.
Mr Justice George Birmingham said there was "deeply disturbing" evidence concerning the mother's ability to parent and meet the one-year-girl’s needs.
That evidence included that when the mother and child went to Temple Street Hospital last June, staff were concerned about the baby's diet and hygiene and the child had very serious nappy rash.
Other concerns were that the mother, despite having mouth ulcers, was pre-chewing food and giving it to the child and had been sleeping rough for a time.
The mother is in her 20s and it is accepted that she has a very close bond with her daughter.
She said she could only change the baby’s nappy twice a day because of financial constraints and was breast feeding the baby who was getting no solid food except for a banana now and then.
While the hospital had referred the mother, child and mother's then partner to the public health nurse, the family left their accommodation at that time.
The baby was placed in voluntary care in July after the woman went to a Dublin Garda Station and said she could not get accommodation.
The mother, who had received medical treatment in St James's Hospital, later sought to have the baby returned.
She told social workers in August that both she and the child had been subject to violence from her former partner, who is not the child's father.
The mother is no longer with her former partner and is no longer sleeping rough.
Mr Justice Birmingham said given that and other evidence from social workers, it would have been "a grave dereliction of duty" on the part of the HSE had it permitted the child, at this point, to return with her mother to Romania.
The judge also expressed strong reservations about using proceedings brought under Article 40 of the Constitution - which involve inquiries into the legality of a person's detention - to raise issues which he believed should be more properly addressed in childcare proceedings.
Applications under Article 40 were "to be deprecated" when childcare proceedings are afoot, he added.
He was giving judgment after the mother sought an inquiry under Article 40 into the lawfulness of her child's detention on foot of an interim care order issued by the District Court.
She had asked the District Court to discharge that order because she wants to go home to Romania with her child.
She had raised €100 by begging which she intended to use to go home by bus with the baby.
Her application was opposed by the HSE on grounds there was insufficient information as to what faced the infant in Romania and due to concerns about the mother's stability and ability to parent and protect the child.
The District Court refused to discharge the care order.
In the Article 40 proceedings, it was claimed the District Court had wrongly placed an onus on the mother to prove the child was at risk if returned to Romania.
Mr Justice Birmingham said the information before the District Court as to the mother's ability to protect her daughter and meet her needs was "deeply disturbing and there was compelling evidence the baby's needs were not being met.
The District Court was entitled to conclude there was no basis to direct the interim care order be discharged.
Mr Justice Birmingham ruled was no basis for directing the release of the child from HSE care.
The judge also rejected arguments the District Court had no jurisdiction to make the interim care order.