THE HIGH Court has ordered the Health Service Executive to institute proceedings to prevent the natural parents of a child from taking the child away from its grandmother, who is caring for the child.
In a case with potential implications for other families, and which the HSE has appealed to the Supreme Court, the grandmother took the proceedings to force the HSE to seek a care order in the District Court in order to ensure the child could not be taken from her care or from the jurisdiction.
The order was granted by Mr Justice McMahon on November 5th last, and was approved by him in February. The Supreme Court has granted a stay on the order and the HSE appeal will be heard in the coming months.
Meanwhile, an injunction granted by the president of the High Court, Mr Justice Kearns, preventing the mother from removing the child pending the outcome of District Court proceedings remains in place.
The applicant in the case was the child’s maternal grandmother and the carer of the child. Mr Justice McMahon pointed out in his ex tempore judgment that she had no rights under the relevant legislation, adding that nonetheless the child was fortunate to have her support.
Describing the background to the case, he said the grandmother feared the child would be taken by the mother, who had previously not cared for her. The mother was influenced by the child’s natural father, who had a criminal record, had spent time in jail, took drugs and mixed with people who might not be a good influence either on the natural mother or the child.
He had not previously taken an interest in the child, but was now “back in the picture”. While it was a good thing that the child should have contact with its natural parents, it was prudent this should take place in a structured and supervised way, he said.
The HSE was resisting the application on grounds that the child was being well cared for by its grandmother and was not at risk. Therefore, there was no reason for it to invoke its statutory powers.
While he accepted that the child was not at risk with the grandmother, Mr Justice McMahon added: “I have a reservation in this regard as in my view the conclusion/investigation did not pay sufficient attention, first, to the ability and capacity of the child’s mother as a carer if she took the child back, which she was entitled to do at any time. Second, in my view, not enough attention was paid to the risk the father now presents to the child.” He said consideration must be given to the father’s now declared intention to be part of his child’s life. Hopefully he would straighten himself out and mend his relationships.
However, neither of the natural parents had taken any interest in the proceedings, though the father had indicated he had taken other proceedings in the District Court. This is the court that grants access, custody and guardianship.
While the HSE had assessed there was a low risk of the mother taking the child back, Mr Justice McMahon asked: “What would happen if the mother changed her mind and takes the child back tomorrow as she is perfectly entitled to do? In my view . . . there would be a high risk of damage to the child.
“The applicant, [grandmother], having no legal rights, may have no opportunity to delay any attempt by the natural mother to take the child back, and damage could well be done to the child before anyone could act . . . where a vulnerable child is involved the court should exercise extra vigilance.”
He said that the District Court could fully explore the facts of the matter, and the judge could make no order if he wished, but the alternative risk if the High Court did not compel the HSE to seek an order was “unthinkable”.