Emergency care order case raises ‘important legal issues’

The case of a baby placed in emergency care at one day old who has since been returned to his mother under the supervision of the HSE raises exceptionally important legal issues which should be ruled upon in the public interest, the Supreme Court was told today.

Those issues concern the rights of an innocent child and parent to be heard when an application for an emergency care order is being made arising from alleged wrongdoing by the other parent, Michael O’Higgins SC, for the child, argued today.

If the High Court’s decision dismissing the child’s claim of unlawful detention under the order is not overturned, it means an affected innocent parent who had a “wholly inadequate” opportunity to oppose such an order could not challenge it until the next stage of childcare proceedings when an interim care order may be sought, he said.

Two "exceptionally important" issues arose from the High Court decision relating to the rights of parents, children and HSE when applications for emergency care orders are being made, he submitted.

The first issue related to fair procedures as the High Court ruling meant an innocent mother’s voice need not be heard until the matter reached the stage where an interim care order was being sought, he said.

The second issue was whether the High Court must inquire whether it was feasible for an innocent child to remain with his innocent mother. There was, counsel argued, “a positive obligation” on a court to consider if the removal of a child from an innocent parent was justified but the High Court did not make that inquiry.

This case involved a one day old breast-feeding child being taken away from his mother against whom there was no allegation of wrongdoing but the High Court effectively found, because of an “artificial” distinction between the mother and child as separate legal entities, she could not speak or reply until the next stage of child care proceedings, he said.

Counsel for the child’s father supported the application.

Tim O’Leary SC, for the HSE, argued, because the child has now been reunited with his mother, his appeal against the High Court finding is moot and raised no sufficiently important issue requiring determination by the Supreme Court.

The proceedings were brought on behalf of the child and Mr O’Higgins can only be acting for the child, counsel said. The reality was there was often a natural conflict between the rights of children and parents when emergency care orders were sought.

The five judge court, presided over by the Chief Justice, has reserved judgment as to whether the appeal raises such exceptionally important legal issues the court should permit it proceed to hearing.

The proceedings arose after gardai took the child from a house last September when he was one day old arising from an emergency care order application by the HSE under Section 13 of the 1991 Act.

High Court proceedings by the child, suing by his mother who, the court heard, was breast-feeding the infant, were then brought seeking an order under Article 40 of the Constitution the child's detention under the order was unlawful. Mr Justice Sean Ryan rejected that application.

The child appealed to the Supreme Court but, in the interim, the order expired and the District Court made an order directing the child be reunited with his mother under HSE supervision.