K -v- HSE AnorNeutral Citation: [2009] IEHC 591 High CourtJudgment was delivered by Mr Justice John Hedigan on December 7th, 2009
Judgment
The impugned decision of the District Court judge had also been appealed to the Circuit Court, which was a more appropriate place to examine the issues than judicial review proceedings.
Background
The applicant is a Latvian national living in Ireland since October 22nd, 2000. She is the mother of a daughter, who was born on April 1st, 2002. The child’s father, who was no longer living with the mother, was a notice party.
The HSE obtained an order in Westport District Court on October 22nd, 2009, that the child be committed to the care of the HSE until she reached the age of majority in March 2020.
The applicant, who represented herself in the District Court, took judicial review proceedings claiming her constitutional rights were breached. Among her claims were that the judge had made his decision before the trial; he did not wish to look at her psychiatric evidence; there was no proof that she was mentally ill; the daughter was passed over to her father despite evidence that the applicant had suffered domestic violence from him; a s.20 report from the HSE was not supported by proof and contained false evidence, and the judge did not allow her to call any witnesses, and discriminated against her.
An affidavit was received by the High Court from the social worker most recently involved in this case. The father gave evidence that the child was in his custody and was safe, and that he had no intention of leaving the country.
Mr Justice Hedigan asked the applicant why she refused to submit to a medical assessment as was requested by the District Court. She replied that she refused because she considered it to be an attack on her. She also indicated her continuing refusal to co-operate with the HSE in resolving the situation.
Since the parents separated in 2003, there had been constant arguments centred on access arrangements to the child, which they were manifestly incapable of resolving. Allegations of abuse and mistreatment had been thrown back and forth, with numerous court appearances.
The HSE’s childcare section was drawn into this maelstrom in August 2005, following an alleged suicide threat by the applicant. Fears were expressed that she might do so with the child. In 2008, after various efforts to resolve the situation, the HSE wrote to both parents urging them to engage with counselling and mediation, warning them that if they failed to do so they would be obliged to apply to court.
After this the father began to engage with the HSE, but the mother continued to refuse to.
In December 2008 the mother’s GP contacted the HSE and the gardaí expressing concern about her and the child. As a result the child was removed from her care and given into the care of her father. Despite allegations by the mother, the HSE was confident she was safe with him.
The HSE also tried to have the mother psychiatrically assessed, but she refused. The HSE decided to seek a supervision order under the 1991 Childcare Act. The father consented, while the mother opposed the order. The District judge ordered a psychological assessment of the child.
An emergency care order was made in July 2009, followed by an interim care order, which was continued in September. During a number of subsequent court appearances, the mother was ordered to co-operate with the HSE and to have a psychiatric assessment, but she refused to do so, and eventually on October 22nd, 2009, the present permanent care order was made.
Decision
In relation to the allegations against the judge, Mr Justice Hedigan said it was the applicant’s adamant refusal to comply with court orders that prompted the care order.
It was not made because the mother was mentally ill, but because she would not co-operate in assuaging the court’s concern for her mental stability and the safety of her daughter.
Bearing in mind the fears expressed, it was hard to see how any District judge, mindful of the safety of the child, could have acted otherwise. The weight accorded to the admissibility of the s.20 report was a matter for the trial court. He added that every effort should be made to ameliorate the situation whereby she had not seen her daughter since July 2009.
The applicant was appealing the matter to the Circuit Court, which would hear the matter in January 2010. This was a far more appropriate way for her to proceed than by way of judicial review, which was not the appropriate remedy in this case.
The full judgment is on www.courts.ie.