Permission to remove children challenged

 

AN IRISHWOMAN who had two children here by a Nigerian man has brought a High Court challenge aimed at overturning a District Court judge’s order allowing the man to bring the children permanently to Nigeria to live, against her wishes.

The woman, a recovering drug addict who has been drug-free for some 18 months, claims Judge Hugh O’Donnell and the Health Service Executive were actually or objectively biased against her in dealing with the man’s application to bring the children to Nigeria.

A report by the executive put before the District Court without any notice to the woman or her lawyers failed to address her updated circumstances but rather focused on her past difficulties, the woman claims.

The woman claims her counsel had told Judge O’Donnell her client dealt with her difficulties and had remained free of all addictive substances for 18 months. Her support worker would provide such evidence to the court.

Her counsel had asked that the father’s application be adjourned for six months to allow the woman complete the final step of her rehabilitation programme so she would be in a position to provide the children with a stable home.

However, it is claimed, Judge O’Donnell refused to adjourn the matter for six months, refused to order an updated assessment report on the woman, and granted the man’s application.

Judge O’Donnell conducted the hearing without sworn evidence from the mother or father, or any inquiry into where the children would live in Nigeria, what school they would attend or any other information, the woman claimed.

When her counsel argued that her client had a constitutional right to fair procedures, Judge O’Donnell had said she was in “the wrong court for constitutional rights” and should be in a higher court, she alleged. Judge O’Donnell granted the disputed order late last month, but the next day the woman’s lawyers secured a stay from the Circuit Court on that order, pending appeal.

The woman’s lawyers this week secured High Court leave to bring judicial review proceedings against the district judge, the executive and State over the matter. Mr Justice Michael Peart granted a stay on the District Court order pending that judicial review, and made an order restraining identification of the woman.

In an affidavit, the woman’s solicitor said the executive’s report concerning the woman did not reflect her current circumstances. The executive failed to carry out a current assessment on the woman before deciding it would seek to have the children placed in care if they were not permitted go with their father to Nigeria, the solicitor said.

While an appeal was pending in the Circuit Court against Judge O’Donnell’s order, that did not resolve the issue that the mother was not afforded fair procedures in the District Court in relation to a hearing about her two children leaving here permanently, the solicitor added.

The woman, in her affidavit, said counsel for the children’s father had told the district judge the executive had stated, if the children were not allowed go to Nigeria, they would be placed in care. The father could not wait for six months because he had a business in Nigeria but would return to Ireland once a year so the woman could access the children for a time, it was stated.

The woman is seeking an order quashing Judge O’Donnell’s decision and restraining him from hearing any further applications in relation to the children.

She also wants declarations that the judge was actually or objectively biased in how he dealt with the matter, and acted in breach of natural and constitutional justice.

The relevant provisions of the Guardianship of Infants Act are unconstitutional if they allow the District Court to order the permanent removal of children to another jurisdiction without the continuing protection of the higher courts, she claims.

It is also claimed that, if the woman is not entitled to seek costs orders against district judges unless bad faith is established against them, that deprives her of an effective remedy, in breach of the European Convention on Human Rights Act 2003.