Father claims children in foster care with no legal basis

Tusla argues it is in ‘impossible’ position as children are refusing to return to man’s care

A separated father who has been granted custody of his children claims they remain in foster care organised by Tusla, the Child and Family Agency, more than a week ago without a court order or any legal basis, the High Court has heard.

The agency has argued it is in an “impossible” position because the two children, aged 12 and 13, are refusing to return to their father since he placed them in voluntary care last week.

He claims that is because their mother, his wife from whom he is separated, has actively alienated them from him and “poisoned” them against him.

His concerns about parental alienation are shared by an independent family therapist, the court has heard.


The man placed the children in voluntary care of the agency last week after they made complaints at school about him taking their mobile phones from them some days earlier. He alleged the phones were being used for contact with their mother, in breach of a District Court order.

The children told the school authorities they did not wish to return home to their father, who had been granted custody of them by the District Court following a contested hearing. He placed them in voluntary care of the agency overnight in the hope the situation would “cool down”.

When he sought their return the following day, the agency failed to return them and instead sought an emergency care order (ECO) last Friday, which was refused by the District Court.

‘Flawed’ investigation

The man last Wednesday initiated judicial review proceedings, ex parte (one side only represented), against the agency seeking to overturn its “flawed” investigation into his complaints about the mother’s care of the children, particularly the alleged failure to consider parental alienation.

He also sought to overturn its finding last November that he had coercively controlled and abused his wife, which he strongly denies. He wants a fresh investigation and an injunction seeking the return of the children.

During that application, the court was told the agency intended to seek an interim care order (ICO) from the District Court.

Mr Justice Charles Meenan returned the judicial review matter to Friday when Feichin McDonagh SC, for the agency, said it needed time to put in opposition papers.

Counsel said two family therapists had proposed a meeting of all parties next week, the agency considered that was a good idea and was happy to participate. He sought an adjournment to later next week by which time he hoped there may be developments “to the benefit of all parties”.

Micheál P. O’Higgins SC, for the father, said the agency had last Wednesday withdrawn its ICO application and the children remain in foster care apparently “with no lawful basis”.

The ICO application suffered a “similar frailty” to the ECO application in that the agency failed to provide “chapter and verse” concerning the parental alienation issue, counsel said.

The agency seemed to be “relinquishing responsibility” to return the children and the situation was made worse by “seriously deficient” information provided to the District Court during the ECO application.

‘Overarching concern’

Counsel said the father’s “overarching concern” is the children and he has no desire to prevent the court reaching, at the earliest opportunity, a final conclusion concerning their care and custody.

His side had written to the agency on Thursday seeking their immediate return to their father or his sister, against whom there is no complaint, failing which he wanted a hearing for their return, without prejudice to the judicial review proceedings. Mr McDonagh said the agency wanted to reply in writing to the father’s letter and would do so.

In reply to the judge, Mr O’Higgins accepted the children’s opposition to returning to their father has to be considered but his client believed this was because they had been “brainwashed” by their mother against him.

Whatever the reason for the children’s position, it has to be addressed, the judge said. He directed the meeting with the therapists and parties be held early next week and adjourned the case to next Thursday.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times