Newborn taken from mother over concerns of serious harm or death

Child and Family Agency explains motivation for taking day-old child at High Court

A day old baby boy was forcibly removed from his mother at a maternity hospital due to "great concern" he was at serious risk of injury or possible death, the Child and Family Agency has told the High Court.

There was “no alternative” to separating the child from his mother as social workers faced a situation where mother and baby were fit for discharge that evening “and could disappear into the Dublin air”, Barry O’Donnell SC, for the agency, said.

The parents had not opposed their several other children being taken into care over concerns of neglect, domestic violence and the mother’s mental health, he noted.

The agency’s concerns for this child included the parents had left several different “substandard” tenancies due to “erratic behaviour” and the agency had no current address for them.


There were also serious concerns about the mother’s mental health presentation, including delusional behaviour during pregnancy such as saying demons and spirits were trying to take the baby out of her.

The parents failed to engage with a safety plan for the baby and did not attend a pre birth case conference where professionals expressed serious concerns and put the unborn on the child protection notification system.


There was limited engagement by the mother with social workers and the father was hostile, insisting he would speak for his wife in any engagement with professionals.

The mother had failed to attend several access appointments with her children and during her pregnancy failed to attend some of her ante-natal appointments, he added.

Counsel was opposing judicial review proceedings by the mother and child alleging their rights to constitutional justice and fair procedures were infringed because of the way in which emergency and interim care orders were made earlier this month. The father, a notice party, makes similar claims in the proceedings.

The hearing concluded on Friday and Mr Justice Seamus Noonan said he hoped to rule as soon as possible.

The newborn was removed from his mother on foot of an emergency care order made earlier that day by the District Court. An interim order was made two days later and is returnable to next week.

During exchanges with Mr O’Donnell, Mr Justice Noonan said his concern was whether there was an alternative to this “extraordinarily dramatic” removal by three gardaí and two social workers. The mother reacted “by clinging to the baby as any mother might”.


The European Court of Human Rights (ECHR) has said all reasonable alternatives must be considered before such a “dramatic” step is taken, he said.

While a possible alternative was an order directing the child remain in the hospital with access by the mother, it appeared the District Court was not given such options.

Mr O’Donnell said the court could not infer the mother might have reacted any differently if the child was removed to another part of the hospital rather than put in emergency foster care.

The 1991 ChildCare Act does not require the agency to have a protocol in place concerning newborns about whom there are safety concerns, he added.

The judge remarked the ECHR jurisprudence seemed to suggest such a protocol might be appropriate.

When Mark William Murphy BL began closing arguments for the mother, the judge asked was she seeking the baby's return to her care.

Mr Murphy said he had no instructions otherwise but the court could make any orders it considered appropriate in the child’s best interests.

Counsel said the ECHR jurisprudence puts newborns in a “unique” category and the Child and Family Agency is obliged to show all reasonable alternatives were explored. It was “unreal” to suggest there was any actual exploration of alternatives in this case, he said.

Alan Brady BL, for the father, said his client believe the child should ultimately be returned to the mother. His child has “clear” rights to have decisions about his welfare made as part of a fair process and that position did not change because the other children were in care.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times