Homeless couple loses court bid for custody of premature baby

A homeless couple has lost a High Court bid to have the custody of their prematurely born baby returned to them after he has received necessary medical treatment and is discharged from hospital.

Colman Fitzgerald SC, counsel for the baby's parents, told Mr Justice Michael Peart it was not the couple's intention to bring up their child "in some doorway."

Mr Fitzgerald, who appeared with barrister Mairead Carey, said the couple had arranged for them and the baby to move in with the child’s grandparents.

Timothy O’Leary SC, counsel for the HSE which obtained a temporary care order for the child from the District Court following its premature birth on October 3rd last, told the court the boy had been receiving vital ongoing hospital care.

He said it was most likely the baby would be transferred to a specialist children’s hospital in Dublin tomorrow where he was scheduled to undergo surgery for a double inguinal hernia.

Mr O’Leary, who appeared with barrister Sarah McKechnie, said the baby had been undergoing specialist hospital care since its birth.

During that time the couple, who the court heard had a troubled background, had been living in a residential unit attached to the hospital where it was currently receiving treatment.

He said the baby, who cannot by law be identified, would in all probability require ongoing specialist hospital care well after January 13th when the interim care order was due to expire. An extension to the order would be sought.

Mr Fitzgerald said the child’s parents were seeking a habeas corpus order under Article 40 of the Constitution returning care of the child to them following its discharge from hospital so they could take care of the boy themselves in its grandparents’ Dublin home.

He said an application for a full care order by the HSE was due to be heard by the High Court from January 27th and January 30th. Once discharged from hospital it was the HSE’s intention to place the baby with foster parents for a period of up to six months and the parents wished to avoid a break in bonding with their baby.

The court heard that during protracted District Court proceedings relating to the application for the temporary care order, the parents had continued living in the hospital unit close to and often visiting and nursing their baby.

Mr O’Leary said an Article 40 application regarding a child that was the subject of a lawfully obtained care order was totally inappropriate. The parents could have appealed the interim order to the Circuit Court or could have brought a judicial review challenge to the High Court and had not done so.

Judge Peart, who heard the application over a number of days and gave an emergency weekend judgment, said the child was being treated for neonatal chronic lung disease and had bilateral inguinal hernias which would require surgical repair under anaesthesia once he was stable and off oxygen.

Even following hospital discharge he would require very significant and high quality parental aftercare over and above what would be required for any newborn baby. It was concerns around that issue that had led to to interim care order being granted.

Judge Peart, refusing the Article 40 application, said there had been sufficient evidence for the District Court judge to have granted the interim order. The child required care or protection he was unlikely to receive unless the court had made that order.