Judge refuses to quash order keeping baby in HSE care

A High Court judge has refused to overturn orders permitting a one-year-old Roma baby girl to remain in HSE care after noting "deeply disturbing" evidence concerning's the child's mother's ability to protect her daughter and meet the baby'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, hygiene and very serious nappy rash.

The mother, aged in her 20s and accepted to have a very close bond with her child, said she could only change the nappy twice daily due to financial constraints. She was breast feeding the baby who, apart from a banana now and then, was getting almost no solid food.

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.

In July, after the mother went to a Dublin Garda station saying she could not get accommodation, the baby was placed in voluntary care. The mother, who had received medical treatment in St James’s Hospital, later sought to have the baby returned.

Other alleged 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. She told social workers last August that both she and the child had been subject to violence from her former partner, who is not the child’s father. She was no longer sleeping rough.

Given this and other evidence from social workers, Mr Justice George Birmingham said it would have been "a 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 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 child 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 argued among other arguments the District Court had wrongly placed an onus on the mother to prove the child was at risk if returned to Romania.

In his decision, 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 that the interim care order be discharged.

Often the best indicator as to what will happen in the future can be discerned from the past and, given the information about lack of ability to parent, it would have been a “grave dereliction of duty” had the HSE washed its hands of this child at this stage, he said. There was no basis for directing the release of the child from HSE care.

The judge rejected arguments the District Court had no jurisdiction to make the interim care order. There was evidence, when making the interim order, that the district judge was satisfied in accordance with the relevant law that a full care order application had been made or was about to be made, he said.