As a result of a High Court ruling two English children may never see each other or their parents again, writes JOHN WATERS
POSSIBLY WITHIN hours or days, two English children whose futures have been the subject of court proceedings in this jurisdiction for 17 months will be escorted by social workers back to England. There is a strong likelihood that this little brother and sister will be forcibly adopted and will never see each other or their parents again.
I recently wrote about this case using the pseudonym “Lane”. I am prohibited from revealing the identities of the people by laws intended to protect them.
Two years ago, Nottinghamshire County Council sought to take the Lanes’ children into care, making allegations concerning the capabilities and mental health of the parents. This followed a negligence complaint made by the family against the National Health Service after the mother partially lost her sight. Under a voluntary care order, the children spent 27 days in foster care, while an investigation cleared the Lanes on all allegations, including that of medicating their children. When the children came home, however, the parents suspected that they had been physically abused in foster care. This became the subject of a police investigation. The council then sought a supervision order, requiring the family to submit to repeated tests and evaluations. Noting a reference in court documentation to the possible adoption of their children, the Lanes fled to Ireland, where they hoped to avail of the protections of our Constitution.
England, unlike Ireland, allows children, even those of married parents, to be adopted against their parents’ wishes. In one recent instance, children were placed for adoption because social workers decided their mother was too fat. In another, the presiding judge expressed concerns that authorities were using trumped-up allegations to take children from good families to meet adoption quotas.
Two weeks ago, the Supreme Court here dismissed the Lanes’ appeal and ordered that the children be sent back to England within 21 days. The court did not adjudicate on the substantive merits of the care issue. The hearing arose from a High Court judgment under the Hague Convention, relating to where proceedings should take place. The convention is intended to enable the return of children who have been abducted from their place of habitual residence against the wishes of one or other parent/guardian.
The Lanes have never lost custody of their children and continue to exercise full parental responsibility. No care order exists in England in respect of their children. No investigation in England or Ireland has upheld any complaint against them.
In January last year, on the basis of an interim care order taken out in this jurisdiction, the children were taken from their parents in an operation involving social workers and an extraordinarily large force – at least a dozen – of gardaí. No full care order has been issued in this jurisdiction, and no investigation of the allegations has been conducted. The HSE has acted solely on the basis of demands and assertions by the English authorities.
Although no court orders existed in England in respect of the Lane family, the High Court in Dublin found the English courts had some rights of custody. This suggests that, in order to dilute the custody rights of this family, all the English authorities had to do was make a holding application to a court. No judgment or order was necessary.
Even though the removal of the children did not breach any English order or law, the Irish High Court agreed with the English courts that removal had been wrongful.
The parents argued that the return of the children would conflict with “the fundamental principles of Ireland relating to the protection of human rights and fundamental freedoms” within the meaning of article 20 of the Hague Convention, having regard in particular to the threat of forcible adoption. The High Court accepted the assertion by Nottinghamshire council that adoption is a “last resort”. Ms Justice Mary Finlay Geoghegan said that, since adoption was merely a “possibility”, the situation did not meet the required threshold of “grave risk” or place the children in “an intolerable situation”. She said that article 20 of the Hague Convention was intended to be invoked only on the rare occasion that the return of a child “would utterly shock the conscience of the court or offend all notions of due process”.
The High Court, as the Hague Convention requires, also considered the children’s wishes. Although there is evidence that the elder of the two, aged seven, wishes to remain here and be reunited with his parents, the judge found that the interview with the child “did not include an objection to returning to England”. The judge said that a desire to remain in Ireland “is quite different to an objection to returning to England”!
The Lanes, driven by the parental desire to protect their children, have represented themselves and their children in front of more than 20 judges. They have been fighting on the frontier of two contrasting cultures of childcare and family rights. Whereas Ireland treats children as part of the family, England accords children rights as individuals, detached from those of parents and siblings. These rights are ultimately exercised by the state.
The proposed amendment to our Constitution would bring us into line with the dispensation currently obtaining across the Irish Sea.