This is an edited version of the judgment delivered by Ms Justice Laffoy. The "applicant" referred to is the Eastern Health Board.
This is an inquiry under Article 40.4.2 of the Constitution into a complaint made to me by the applicant that an infant, to whom I will refer as Baby A, was being unlawfully detained by the respondents from a date four days after her birth until the date of the complaint. By Order made on that date (the first Order), I directed that Baby A be produced before the court on the following night and that the respondents certify in writing the grounds of her detention. Pursuant to an Order made by me on the following night (the second Order) the first and second named respondents relinquished custody of Baby A. They seek to justify their custody of Baby A on the basis that she was in their lawful custody up to the date of the second Order with the consent of the third named respondent, who is the natural mother of Baby A.
Since the date of the second Order, Baby A has been in the custody of the applicant and is being taken care of by foster parents approved by the applicant. The third named respondent has filed an affidavit in which she has intimated that she is happy that Baby A should remain in the custody of the applicant at this time and, through her counsel, Mr Phelan SC, she has reiterated that position to the court. In effect, the first and second named respondents accept the third named respondent's decision, contending that their custody of Baby A up to the time the complaint was made to the court, that is to say, the date of the first Order, was lawful but acknowledging that the consent is now revoked.
It was submitted by Mr MacEntee SC, on behalf of the applicant, that this court, having embarked on an inquiry under Article 40.4.2, must determine whether Baby A was lawfully detained by the first and second named respondents on the date of the first Order. It was submitted that she was not in lawful custody of the first and second named respondents . . .