Health Service Executive -v- KA (Section 47 Request to Return Deported Mother)

• Judge: Halpin J.
• Judgment Date: 10 November 2010
• Neutral Citation: [2010] IEDC 7
• Case Outcome: Approved
• Date: 10 November 2010
• Court: District Court (Ireland)

[2010] IEDC 7

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

KA

RESPONDENT

CHILD CARE ACT, 1991— SECTION 47

IN THE MATTER OF CHILD 1

10 November 2010

1. The Applicat ion before this Court is moved by the Guardian ad litem (“GAL”) of the child pursuant to sec tion 47 of the Child Care

Act 1991 seeking an Order from this Court permitting and fac ilitating the return of the c hild’s mother who has been deported pursuant

to a Deportat ion Order signed by the Minister for Justice, Equality and Law Reform. The Application was hotly c ontested by t he

Minister; the HSE took a neut ral position and informed the Court that it would carry out any direct ion it received f rom the Court but

that a passive as opposed to an ac tive role was being observed in this matter. The Applicant for the purpose of the sec tion 47

Motion, namely the GAL, was represented by counsel; Chid 1’s mother was represented by c ounsel; the HSE was represented by

counsel; and the Minister for Justice, Equality and Law Reform was represente d by counsel. Writt en Submissions were received from

all parties save the HSE, the latt er exercising a watc hing brief in respect of the sec tion 47 application.

2. So as t o allay any c onfusion that c an be caused in this matter, t hroughout this decision I refer to the Guardian ad litem, as the

Applicant, bec ause she is t he person moving the se ction 47 Motion (c onfusion could arise bec ause the t itle of t he c ase has the HSE

as the a pplicant).

3. I do not believe t hat a complete and discursive ac count of the bac kground to this case would assist this Court in reaching its

decision and acc ordingly I shall deal only with the relevant matters of an historical nature t ouching upon the application as other

matters will not nor do not influence t he Application one w ay or the ot her.

4. Child 1, the subject of the care procee dings, is four years of age, w as born in Ireland, and before now he has never been

separated from his mother prior to his recept ion into ca re on 16 August. The GAL furnished a report to this Court supporting her

Application and the se minal portions state that t he separation of the c hild from his mother was traumatic and distressing but that his

placement is comfortable and homely with a large number of appropriate toy s to play wit h and that he is extremely well ca red for. The

GAL, states that Child 1’s foster c arer is att entive and loving and she has observed Child 1 seeking and giving hugs to her.

5. The GAL has also out lined what she believes to be the plight of t he mother in this case and her present sta tus and c ircumstanc es

in Country 1. The Minister does not accept this version in that a Detect ive Sergeant from the Garda National Immigration Bureau did

make telephone c ontact with the mother and he formed the opinion that the mother’s circumstanc es are not as dire as those

articulated by the GAL. The GAL stat es in her report of 26 Oc tober last (the HSE also submitted an update report dated 27 Oct ober)

that:

“the mother’s parents informed me that the mother has no money. I am informed by both that the mother has to

beg for food and t hat there a re days when the mother has been unable to eat … Occ asionally her father is able to

get small amounts of money to the mother which she uses for telephone ca lls. Her father informs me that t he

mother is living in an area that is alien to her. He stat es that she has no friends or supports t here … t he mother

informs me that she c annot allow Child 1 to be returned to Country 1. She has said that she will not be able to feed

him and that he is in danger and has no future. T he mother is supported in her position by her father who has also

advised that Child 1 will be in danger in Country 1, will have no future and that to return him would be akin to

‘throwing him into the mouth of a lion.’”

6. I cannot think of a more worthy case that w ould or could test the limits or boundaries of t he powers of t his Court under section 47

of the Child Care Ac t, 1991 and acc ordingly I will try my best to reac h a decision which is proper, fair, and just having regard to all

the c ircumstances of t he matter.

7. Two Deportation Orders pursuant t o the Immigration Act, 1999 are in existenc e in respect of the mother and Child 1 and copies of

same have been furnished to this Court. Also, this Court has had sight of the minutes of t he Examination of File pursuant t o sect ion 3

of the Immigration Act , 1999.

8. The said Examination of File in respect of the ‘c onsideration of the c hild born in Ireland’ states t hat:

“[t]he c hild in this case, Child 1, was born on [dat e given] and under the Irish Nationality and Citizenship Act , 2004

which ca me into forc e on 01/01/2005 is not an Irish Citizen. It must be borne in mind that, even if the child were an

Irish citizen, the judgment in the Supreme Court in the L & O case (sic) makes it clear t hat there is no absolute

right for a child to hav e the c are and c ompany of it s parents in Ireland – this can t ake place abroad. Further, it

cannot be said as a matter of law that the parents of a minor ca n assert a c hoice t o reside in the St ate on behalf

of a minor, even if that could be said to be in the interests of the minor. Thus children can ret urn to countries

which would have inferior welfare and health service s to t hose available in Ireland. This is not, in itself, a basis for

allowing them to remain here. The fac t that, in t his instance, t he child is not an Irish Citizen lends further weight to

the c onclusion that deport ing the parents, along with t he c hild, is not contrary t o our national or international

obligations…The principal issue to be c onsidered in this case is that of the c itizenship of the child born in the State

on 21/08/2005…Having considered the fa cts of this c ase and taking into account the above I am satisfied that

although the mother’s son was born in the island of Ireland he does not qualify for citizenship of t his Stat e.”

9. Firstly, I must say t hat the phraseology used, in this extract and in the Examination in the main, is insensitive and borders on

tac tless. Sec ondly, the principal issue to be considered is the entitlement to reside in this st ate not that of citizenship of t he child