An Emergency Care Order for a child from Africa was refused in the District Court. It was not granted as the criteria set out under section 13 of the Child Care Act, that the health and welfare of the child were at immediate or serious risk, were not met.
Five children had come to Ireland seeking reunification with an asylum-seeker they said was their father and uncle. The eldest said she was the respondent’s niece and the other four children said he was their father. When DNA tests ruled out the paternity of one of the four putative children (although there was a match for a relative relationship) the HSE sought an Emergency Care Order for her.
The male respondent attended the hearing and opposed the application. He had no legal representation and did not wish to obtain legal aid. The judge asked him if he understood the application was for an Emergency Care Order, he said he did and was happy to proceed.
Evidence was taken out of sequence and a doctor, who had a Masters in forensic medicine, gave evidence first. He explained to the court that he had been asked to carry out a familial DNA test on the respondent’s niece, and a paternity DNA test on the four putative children. The doctor attended the hospital, met with the children in the presence of the respondent and asked his permission to take a DNA sample. They were all happy with the procedure, intended to establish whether the respondent was related to the five children.
He explained that in DNA testing a mismatch can occasionally happen due to a genetic mutation. The chances of two mismatches were infinitesimal, there was zero probability of more than two mismatches.
In the case of the niece, the familial test showed the respondent was her uncle. In the case of three of the children, there was a clear paternal match. In the case of the child who was the subject of the application, there were currently more than two mismatches but they did not yet have the exact detail. “Probability was zero of the male respondent being the father of the girl.”
The judge asked if the DNA showed a relative relationship, the doctor said there was an overlap, “suggesting there is some relationship, but I do not want to mislead the court.” A paternity test does not also test for a familial relationship, therefore he could not comment. He had only been asked to carry out a paternity test on the four children as they had all said he was their father. He could say the male respondent was not the father but he could not say he was not related to the child.
The social worker told the court that he had worked in a social work team for separated children since 2002 and was the allocated social worker to three of the five children in the family, one of whom was the subject of the Emergency Care Order application. The five children were referred to his department from the Office of the Refugee Commissioner and all five children were interviewed separately. It became clear they had arrived into Ireland in search of their father and uncle and were looking to be reunited with him. The youngest child went to a foster family with the eldest, and the three other children went to a residential unit.
They found the father through ORAC (Office of the Refugee Applications Commissioner) and he was asked to call them, which he did, and they asked him to come to Dublin. DNA testing was done as it was a case involving family reunification and consent was given.
They subsequently met and the social worker explained the DNA test results, however the father was unhappy with the result and services. “It has been very difficult to deal with the male respondent, he is saying he is her father. [The child] confirmed via photos this was her father,” said the social worker.
Gardai had been called on both occasions the father was in the office. “He behaves with the children but not with the services,” he continued. The niece and youngest boy were reunited with the father, but the other two children were refusing to leave the residential centre as the three children were not going to be allowed to leave together. He understood the father had advised them not to be split and leave without the girl who was the subject of the application.
The judge said he was told the children were in the residential unit under Section 4 (voluntary care) of the Child Care Act. He said this required a voluntary admission into care and therefore how could they be admitted under S.4 as they were not voluntarily admitted? The social worker admitted that he had not asked the father to sign a voluntary reception into care.
The judge said the requirement under S.13 of the Act was that there be an immediate or serious risk to the health and welfare of the child for the child to be placed into the care of the HSE. The expert witness said the test indicated there was a familial relationship but it had not been established what it was. Had he requested any further assessment by the doctor? The social worker replied that he had not.
The judge pointed out that the social worker “had requested a separate and different DNA test for the niece – her relationship could be considered to be similar to the child’s, is that not the case? Your expert said there is some overlap.”
The social worker said as both the man and the girl maintained they were father and daughter they had not gone down another route. There was no opportunity to discuss the relationship, but it had been on his agenda.
The child maintained he was her father. He was not there when she or the other children got the results and they were all were distraught with the information about her. “What supports have you put in place to assist them in dealing with this information?” asked the judge. “They are in a fully supported residential unit,” answered the social worker.
“But what specific supports have you put in place for dealing with this information which may utterly change how they perceive their relationship?” The social worker told the judge he had called to the unit and the staff said the children had improved, and there was a psychologist on the in-house team who could deal with them.
He told the court that the threshold for a reasonable cause to believe that there was a serious risk to the health and welfare of the child was reached because the respondent was not their father. They had therefore applied for the emergency Care Order.
The male respondent told the court that the child was his daughter. “The DNA evidence says that is not the case,” said the judge.
“[The child] lost her mother when she was a baby,” he replied. She had been born very prematurely, she was a very special child, his mother took the child and then gave her to him. He was a pastor and had started his ministry seven years ago.
“Why did you not mention her in your application for asylum?” asked the judge. The respondent explained that her name was on the application, the name they were using in court was her second name, her first name was on the application, followed by her second name.
“You gave evidence you haven’t seen your children for five years, can you explain why?” asked the HSE solicitor.
“I left [the other jurisdiction] under duress,” he said. At the time pastors and churches were being attacked. His house was burnt down and his car burnt out. “The police said there was nothing they could do,” so he had to leave, he was also afraid for his children, that they would become targets because of him.
“God says she is my daughter, I love my daughter so much and she loves me,” he told the court.
The judge refused to grant the Emergency Care Order. He said: “The male respondent consented to DNA testing, [the doctor] says there is some overlap between [the child] and the respondent, it would appear to the court that further testing in this regard is required.
“It would appear from the evidence that the main concern is that there is no demonstrated familial relationship which is contradicted by the expert evidence brought forward. Neither is there evidence before the court that there is a serious risk to her health and welfare.
“I am not satisfied that the criteria under Section 13 have been met and therefore I am going to refuse the application.”
The HSE could not show why the respondent was any more of a risk to that child than the other four children they were going to give to him, he added.