The High Court has ordered an inquiry into the legality of orders keeping a 1- year-old Roma baby in the care of the HSE when its mother wants to bring the child home to Romania.
The baby was placed in care by the mother, aged in her 20s, last July when the mother was attempting to deal with various matters, including warrants, but she has fully resolved those, Feichin McDonagh SC, for the child, told Mr Justice George Birmingham today.
When the child was placed in care, there were also concerns related to the woman’s then partner and the fact the mother was sleeping rough in Dublin at the time and had no family support, counsel said.
The woman now has no matters outstanding related to the warrants, is not living rough and there is nothing to stop her returning to her family in Romania with her daughter to whom it was accepted she is very close, he said. The woman’s former partner was not going back to Romania, he added.
While an interim care order related to the child was due to expire on November 11th next, the HSE had indicated it would seek an extenesion of that order as it was not satisfied as to what would face the child in Romania.
When the mother asked the District Court to discharge the interim care order in the context of her wish to return to Romania, the HSE had opposed that, saying it had not been established what social services were available to help the child, Mr McDonagh said.
While the HSE had rightly pointed out the mother had been sleeping rough and was not receiving social welfare payments, it was also not letting her go home and she was puzzled as to why not, he said.
The District Court had accepted she wanted to go home but had said there was insufficient evidence as to what awaited her there and as to whetehr the child’s interests would be adequately protected, counsel added.
Mr McDonagh said the woman’s family awaited her in Romania, she wanted to go home with her child and it was impermissible, under the Child Care Act 1991, to place an onus on the mother to prove various matters in Romania. The HSE had not called any evidence to show the child faced harm in Romania, he added.
In those circumstances, and also because social services in Romania moved very slowly, he was bringing these proceedings on behalf of the child, suing through her mother.
Mr Justice George Birmingham said, while he had reservations whether the correct legal procedure was being pursued, he would direct an inquiry, under Article 40 of the Constitution, into the lawfulness of the baby’s detention on foot of the interim care order.
He said an Article 40 inquiry is normally carried out speedily but, in this case, he considered it would be necessary for the HSE to be given an opportunity to prepare affidavits related to what was in the best interests of the child
The judge returned the matter to Monday afternoon and directed nothing may be published that would identify, or tend to identify, the child.
