HSE child custody case is urgent, High Court told

Couple challenge orders taking all their children into care

Mr Justice Gerard Hogan directed an inquiry into the validity of the orders under which a couple’s  children are in HSE care. Photograph: Bryan O'Brien

Mr Justice Gerard Hogan directed an inquiry into the validity of the orders under which a couple’s children are in HSE care. Photograph: Bryan O'Brien


The important legal and constitutional issues involved and the urgency of dealing with the case were emphasised by lawyers in the High Court yesterday dealing wih a challenge by a couple to the legality of orders taking all their children into care.

The HSE and Attorney General have said the matter is urgent and must proceed on Monday.

The children have been in care since September last. They were initially subject of emergency care orders, then interim care orders and are now subject of full care orders made last January and extending into next month.

The orders were made after “very serious” allegations were made against the parents but no details of those, or any material that might identify the family, their location or nationality, may be reported. The allegations are denied.

After the parents initiated High Court proceedings, Mr Justice Gerard Hogan directed an inquiry, under Article 40 of the Constitution, into the validity of the orders under which the children are in HSE care.

The inquiry began on Thursday, when the judge ruled the media could report it subject to strict restrictions.

When due to resume yesterday, the judge was told an email had been sent by Berenice McKeever, for the parents, stating she had become very unwell overnight and could not attend court. In those circumstances, the parents sought an adjournment and the judge agreed to adjourn to Monday.

Gerard Durkan SC, for the Attorney General, said the basic position was a number of children were involved and the matter must be dealt with as soon as possible. The case would have to proceed on Monday and his side would email Ms McKeever to that effect, he said.

Felix McEnroy SC, for the HSE, said it was also very anxious the case be concluded as it was “very disruptive”.

After granting the adjournment, the judge added he had identified three issues he considered should be addressed.

The first issue was whether, when making the care orders, the District Court followed fair procedures in relation to the admissibility of evidence.

The second was, if the District Court acted on the basis of hearsay evidence, was it entitled to do so.

The third issue was whether, in light of Article 42.5 of the Constitution, the District Court was properly “satisfied”, within the meaning of the relevant provisions of the Child Care Act 1991, in relation to the matters supporting the exercise of the power to make care orders. In that regard, the meaning of the word “satisfied” had to be addressed, he said.

Article 42.5 provides, in exceptional cases where parents fail in their duty towards their children, that the State, as guardian of the common good, shall endeavour to supply the place of the parents with due regard for the rights of the child.

Orders ‘invalid’
In the proceedings, the parents have argued the care orders are invalid and unconstitutional on grounds including the “manifest” constitutional protection of parental autonomy in relation to their children.

The Constitution afforded “trenchant protection” of the family unit and parental autonomy and the relevant provisions of the Child Care Act were unconstitutional, Ms McKeever submitted.

There was no evidence to support the making of the orders, the District Court had relied on hearsay and there was a “gross lack” of fair procedures, it was also argued.

The court heard the District Court made care orders in relation to each of the children under Section 18.1 of the Child Care Act. The HSE contends the orders are valid. The Attorney General is not a party to the case but is represented with a view to assisting the court.

After the HSE submitted on Thursday that Ms McKeever was not entitled to be heard because she was not instructed by a solicitor, the judge ruled he would allow her make arguments “as counsel” subject to the parents’ undertaking her status would not be used as a basis to dispute the validity of whatever order he made in the inquiry.