‘No exceptional legal issues’ in case of baby in emergency care

Gardaí had taken the baby from a house in September on foot of Emergency Care Order

The Supreme Court has ruled there are no exceptional legal issues to be decided arising from the case of a baby placed in emergency care at one day old but later given back to his parents under supervision of the HSE.

Gardaí had taken the baby from a house on September 26th on foot of an Emergency Care Order (ECO) granted by the District Court to the HSE under Section 13 of the 1991 Child Care Act.

The following day, lawyers for the child’s mother sought an inquiry under Article 40 of the Constitution into the legality of the child’s detention.

After the High Court refused to order the child's release, an appeal was brought to the Supreme Court which adjourned the matter on being told the matter was to come before the District Court.


On October 3rd, the District Court refused to make an interim care order (ICO) and released the child back into the custody of his parents, subject to HSE supervision.

A five judge Supreme Court on October 30th heard arguments on behalf of the child, his parents and HSE whether the appeal was moot or pointless because the child was back with his parents.

Michael O'Higgins SC, for the child, accepted the appeal was moot but argued the court should, in the public interest, still rule on two "exceptionally important" legal issues relating to the rights of parents, children and HSE when applications for ECOs are made.

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 ICO 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 and whether the removal of a child from an innocent parent was justified, he said.

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.

Tim O’Leary SC, for the HSE, argued, because the child was reunited with his mother, the appeal raised no sufficiently important issue requiring determination by the Supreme Court.

There was often a natural conflict between the rights of children and parents when ECOs were sought and, while the HSE sought the ECO ex parte (one side only represented) as it was entitled to do, it put the mother and child on notice, he added.

Giving the Supreme Court's reserved judgment, the Chief Justice, Ms Justice Susan Denham, said this case involved an inquiry under Article 40 of the Constitution on foot of a complaint of unlawful detention.  The relief in such proceedings was the release of a person if they were found to be in unlawful custody.

In this case, the child was back with his parents, had been released from the disputed ECO and that order had been superseded by the ICO. The issue was therefore pointless and the general rule is the courts do not hear appeals on moot points, she said.

The court was satisfied the general rule applied in this case and there were no exceptional circumstances requiring the court to decide the issues raised, she added.

The High Court judgment was fact based, that court was hearing an urgent matter concerning the welfare of a child and its ruling did not raise or apply any new principles of law, the Chief Justice said. The case was also neither argued nor determined by the High Court as a test case and nor was there any issue raised concerning the constitutionality of Secction 13 of the 1991 Act.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times