High Court cannot decide on case of mother with mild intellectual disability

Tusla argues care order needed as woman has not shown capacity to safely parent child

A High Court judge has said he does not have jurisdiction to decide whether a mother with a mild intellectual disability should get additional services to help her look after her baby rather than put the child into State care. Photograph: Bryan O’Brien/The Irish Times.

A High Court judge has said he does not have jurisdiction to decide whether a mother with a mild intellectual disability should get additional services to help her look after her baby rather than put the child into State care. Photograph: Bryan O’Brien/The Irish Times.

 

A High Court judge has said he does not have jurisdiction to decide whether a mother with a mild intellectual disability should get additional services to help her look after her baby rather than put the child into State care.

Mr Justice Michael McGrath said, because there had been no findings of fact made to date in the woman’s care case before the District Court, he was unable to to answer questions referred in relation to the additional services.

The baby girl was born in 2016 and they lived in a parent and infant centre for four months. Tusla, the Child and Family Agency, then applied to the District Court to put the baby in care for two years.

The mother opposed this and the father did not take any part in the proceedings.

The District Court judge found as facts that the woman was a “loving, concerned, conscientious mother” who could not, on the limited evidence before the court, due to her mild intellectual disability or in combination with other significant factors, provide adequate care for the child.

There was also no family support available to the mother. She is on disability allowance and could not fund the cost of carrying out an assessment of her weaknesses and strengths as a parent.

The District Court judge ordered the child be put into care for six months pending the referral of questions in relation to such an assessment to the High Court.

The High Court was asked to decide whether he could make orders, under the Child Care Act, directing Tusla to ascertain the cost of assessing what services would be sufficient to enable the mother to parent the child, in accordance with her rights under the Constitution, European Convention, and the International Convention on Rights of Persons with Disabilities.

Interests

He also asked the High Court whether he could then direct Tusla to provide such services which would enhance her parenting capacity in the interests of the child.

Tusla had argued a long term care order was required because the mother had not been able to demonstrate capacity to safely and consistently parent the child. If the baby remained in her mother’s care, she would not obtain healthy psychosocial development and significant aspects of her care would be neglected or placed at risk, Tusla said.

It contended the High Court was unable to answer the questions put forward by the District Court judge or, alternatively, the High Court should answer them in the negative.

Lawyers for the mother said the questions should be answered in the affirmative. There was a constitutional presumption it was in the best interests of the child to be raised by his or her parents, it was argued.

In his decision, Mr Justice McGrath said the central emphasis of the power of the High Court, under the relevant legislation, is that it be exercised in the best interests and welfare of the child.

To imply from the constitutional and statutory presumptions there has necessarily been a finding of fact, albeit unexpressed, on the best interests of this child issue “would appear to go a step further than is permitted by the jurisdictional limitations placed on this court”.

He concluded “regrettably”, in the absence of a finding by the District Court in relation to the ascertainment of costs of carrying out an assessment in the best interests of the child, he was unable to answer the questions raised by the District Judge.