A legal challenge over the forcible removal of a day-old baby from his breastfeeding mother at a maternity hospital will be heard next week at the High Court.
The baby remains in the care of the Child and Family Agency under an interim care order, having been earlier taken from his mother by gardaí and social workers on foot of an emergency care order made by the District Court.
Because the mother resisted that removal, some force, which the District Court order permitted if necessary, had to be used, the High Court was told.
Three female gardaí from a child protection unit and two social workers were involved in the removal.
One garda said she tried to persuade the mother to hand over the child but the mother resisted. The garda said the mother had a bible in one hand and the baby in the other and she was concerned whether the baby’s head was adequately supported.
The Child and Family Agency sought the emergency order because social workers believed an “immediate and serious risk” to the child would be triggered as soon as the parents learned of the court proceedings.
Spirituality
The parents have several other children, all of whom are subject of care orders arising from concerns of domestic violence by the father towards the mother, neglect, a chaotic lifestyle, the mother’s “strong sense of spirituality” and her refusal to engage with social workers.
Earlier this week, Sunniva McDonagh SC, instructed by solicitor Pol O Murchu, for the mother, secured leave to bring judicial review proceedings against the agency over how the emergency and interim care orders were made. The baby’s father is a notice party.
When the matter returned before Mr Justice Seamus Noonan on Wednesday today, both parents were in court. The baby’s court appointed guardian was also represented.
Ms McDonagh said her side wanted an urgent hearing.
Aoife McNickle BL, for the agency, said the interim care order applied until November 30th and the agency wanted as much time as the court could give it to address the issues raised. The judge said the matter was urgent and fixed it for hearing next week.
He permitted lawyers for the mother to make additional claims in her case, including the forcible removal of the child breached the obligations of the CFA under the European Convention on Human Rights Act 2003, particularly regarding family life rights under Article 8.
Transparent
It is claimed the agency interfered with those rights, including by not operating a proper and transparent procedure for the removal of new born infants from their mothers.
It is also alleged the District Court judge, when making the emergency and interim care orders, prejudged the issue of whether the child was at immediate risk in the absence of any evidence the agency had concerns relating to the mother’s care of the baby from the time of his birth to the hearing of the interim care application.
A further additional claim is the District Court judge failed to consider adequately or at all the best interests of the baby and failed to vindicate the personal and family life rights of mother and baby under the Constitution and European Charter of Human Rights.
Other claims include there were no “extraordinary or compelling” reasons to justify the emergency order being implemented as it was.
The mother also wants the baby returned for reasons including the establishment of breastfeeding was a positive benefit for him.
