Judge overturns ‘nuclear option’ emergency care order for newborn

A High Court judge has overturned an emergency care order under which a day-old baby was forcibly removed from his mother at a maternity hospital due to serious concerns of risk to his health and life if she left there with him.

The court upheld an interim care order under which the baby remains in foster care.

In a significant judgment concerning the rights of newborns and parents in such situations, Mr Justice Seamus Noonan ruled the emergency order was a "nuclear option" sought by the Child and Family Agency (CFA) which was not constitutionally proportionate or compliant with the European Convention on Human Rights (ECHR)

The jurisprudence of the ECHR makes clear State authorities must consider all possible alternatives to the removal of the child from its family and the action taken must be proportionate, he said.

Article 42A of the Constitution, “demands no less” and requires, where the State endeavours to supply the place of the parents, it must act always “with due regard for the natural and imprescriptible rights of the child”.

While there was “more than ample evidence of potentially very serious risk” to the baby if the mother was let leave hospital with him, the taking of a new born baby into public care at the moment of its birth is “an extremely harsh measure”.

The agency knew in advance of the birth induction date and of potential risk to the child but, when seeking the emergency order, provided no evidence it had even considered any alternative to forcible removal, such as detaining the baby in hospital for a few more days and permitting his mother supervised access, he said.

There was “a world of difference” between that and the baby being forcibly taken from his mother and brought to an unknown location.

The removal was “hugely traumatic” for mother and baby, and for gardai and social workers involved, who acted with great sensitivity.

The judge noted the mother was initially calm but later became aggressive, insisting God had given her the child through immaculate conception and they could not take him. She had a Bible in one hand and the infant was on her lap and there was concern he could fall to the ground. The mother was strong and gripped the baby tightly but he was eventually removed using minimal force, the judge said.

While quashing the emergency care order, the judge disagreed that the manner in which the interim care order was made two days later breached the rights to fair procedures of the parents, whose several other children are also in foster care for reasons including concerns by social workers about the mother’s mental health, domestic violence and neglect. The parents had not opposed those care orders.

The parents, who were separately legally represented at the interim care order hearing, had argued their lawyers had insufficient time to prepare for it and the District Court should have adjourned the application.

Mr Justice Noonan noted the Supreme Court has said the requirements to take steps to protect children may sometimes take precedence over rights of parents to fully participate in such hearings.

One of the reasons these parents had little time to prepare for the inteim care order hearing was their “steadfast” refusal over years to engage with the Child and Family Agency or disclose their addresses and and they had not sworn affidavits disputing the Child and Family Agency reports, he noted.

His reserved judgment concerned proceedings by the mother and child against the Child and Family Agency alleging their rights were breached in how the emergency care order and interim care order were made. The father, a notice party, supported those arguments.

The judge noted the mother attended a medical centre in 2015 with two of her children who had serious burns not consistent with explanations provided by the parents. The oldest child, a teenager, was also missing for four days without any notification to gardai or the child and family agency.

The mother had said angels, spirits and demons were molesting the children at night and medical staff, social workers and others had voiced concerns about her mental health arising from strange behaviours.

During this pregnancy, she missed several ante-natal appointments but had 12 emergency room attendances.

A few days before her due date, she insisted she wanted the baby “out” immediately, that demons, spirits and angels were coming for her and she had to save the baby from them.

At a pre-birth case conference both parents failed to attend, it was concluded an immediate and serious risk to the health and welfare of the baby would be triggered as soon as the parents learned of emergency care order proceedings.

Theemergency care order was granted on foot of evidence from social workers and a psychiatrist whose concerns included what the mother might do if she thought the baby was possessed.