See also 2025 Volume 1 Report Number 26
After a six-hour hearing a Dublin District Court judge extended a baby’s interim care order (ICO) by one month. The previous month, an initial ICO had been granted and the baby had been taken into care from a maternity hospital, where he had resided with his mother for his first two weeks of life. Present in court, the mother was represented by senior counsel and a solicitor.
The CFA’s barrister sought to rely on KA v HSE [2012] 1 IR 794 as the basis that only events of the past month should be referenced during an extension application. To go further back would be to attempt to re-litigate the initial ICO, she said. The initial ICO was granted after a hard-fought five-day hearing and this was the first extension application.
There were five witnesses: the social worker, the guardian ad litem, the mother, her counsellor and her solicitor.
Social Worker
The social worker had been allocated to the baby five days before this court date. Her principal social worker was with her in court, and the social worker explained that her two previously allocated colleagues had been on sick leave since the ICO had been granted.
The barrister for the CFA asked the social worker if there had been any material changes in the mother’s circumstances that would lead to the baby’s return and she said no. She sought to rely on 16 referrals made to the CFA regarding the pregnant mother in the year prior to the birth of the child.
The social worker told the court that the baby was now living in foster care and had been brought to a children’s hospital the previous week. He had been given a lumbar puncture to rule out meningitis, before a diagnosis of Influenza A was made.
The mother’s barrister asked the social worker what supports did the social worker department intend to offer the mother. The social worker said that a parental capacity assessment and risk assessment would be offered. The mother’s barrister said that previous psychiatric/psychologist reports had recommended that the mother should avail of dialectical behavioural therapy (DBT). The social worker said that she did not know what DBT stood for or what it entailed.
The mother’s barrister suggested that the social worker had been given the short straw by being expected to appear in court. “I want to understand why you came to court to say it’s not enough, yet you don’t know anything about it.” He put it to the social worker that the baby had been placed with two male foster carers, who had no experience with newborn babies, and that the mother’s legal team had brought an Article 40 application in the High Court to allow the baby the right to continue to breastfeed.
He said that the mother and her legal team were very concerned that the baby was not meeting his weight targets and was vomiting up formula, and that he had been prescribed Gaviscon since entering into the care of the CFA. The social worker was not aware whether the baby had reflux before he stopped breastfeeding. The barrister asked if she had seen the lactation consultant’s report on the situation. She had not.
The barrister set out how the baby had become unwell and was admitted to hospital the Friday beforehand. The mother was not informed until Saturday afternoon, the CFA had to be pressed to tell her what hospital the baby was in, and she eventually got to see him on Saturday evening. The social worker said she was not aware that the mother had visited him on Saturday and Sunday. “You are giving your professional opinion without knowing,” the barrister said.
He said that the mother’s solicitor had written repeatedly to the CFA to ask exactly what they required to be done, with no reply. He asked: “Do you know what has to be done?” “Not currently,” she said. He asked what was her basis for saying there had been no change. She said that it was on the basis of the referral on the day before the child was born. “There could have been change since then, but I don’t know.”
The mother’s barrister asked the social worker if she agreed that referrals need to be investigated. She agreed. He put it to her that no findings were made from the referrals mentioned. The social worker said: “I’m sure the previous allocated social worker(s) made their own assessment and investigation.” “But isn’t the correct answer that you don’t know?” asked the barrister. “Yes,” she answered. The barrister reminded the social worker that the judge had to decide based on the last month. “There have been no referrals in the last month?” “No, none.” “No causes for concern regarding the mother in the last month?” “No,” replied the social worker.
The barrister referred to section 1.2(8) of the CFA’s Handbook, which states: “Children should only be separated from parents/carers when alternative means of protecting them have been exhausted,” reflecting s.3(2)(c) of the Child Care Act 1991, which states that in the performance of its function, the CFA shall “have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.”
The barrister asked the social worker what had been done in the last month to reunite baby and mother. “Nothing, as far as I am aware,” the social worker said. “Do you have any reason to believe that she couldn’t care for him with a supervision order?” The social worker referred to the mother’s history of suicidal ideation. The barrister put it to the social worker that a consultant psychiatrist from the Rotunda gave evidence at the initial ICO hearing that there is a big difference between suicidal ideation and suicidal intent.
Barrister: “You’ve read the file?”
Social Worker: “Yes.”
Barrister: “That contains something that gives you concern?”
Social Worker: “Yes.”
Barrister: “But you know nothingof her Autism, how it’s being treated, her attendance at Jane’s Place?”
Social Worker: “No, I don’t.”
Barrister: “The reality is that you don’t know the position?”
Social Worker: “I trust my colleagues’ opinions.”
The barrister showed her photographs with the baby, taken over the weekend.
Barrister: “Does she look maternal?”
Social Worker: “Yes.”
Barrister: “Like she would harm her own child?”
Social Worker: “Not in that moment.”
Barrister: “The CFA has put you in this position, while your boss (referring to the principal social worker) is sitting here, present in court. The mother has been seeking assessments from the CFA for some time. And her solicitor has been writing. Do you know that?”
Social Worker: “No.”
The social worker did not have a copy of the report she had signed. When given a copy, the mother’s barrister drew her attention to the table of contents, which listed thirteen items. The barrister asked her why sections were missing from the report, although listed in its
Table of Contents.
Barrister: “Current Social Work Referrals – not there, Maternal Mental Health – not there, Parental Engagement – not there, Consideration of Mother and Baby Unit Alternative – not there.”.
Social Worker: “I cannot explain that”.
The judge asked the social worker who had made a referral to mother and baby homes and she replied the CFA did. He asked if the referrals made after the birth of Baby C were constantly under review. “No,” said the social worker; “they refused based on the mother’s mental health.”
Guardian ad litem
The baby’s GAL confirmed that she was supporting the application to extend the ICO. She believed a comprehensive parental capacity assessment (PCA) was warranted and the next step would be for all parties to agree a joint letter of instruction to be sent to an assessor. She said that she understood the mother’s diagnoses to be emotionally unstable personality disorder, antisocial disorder, and autism. She believed that a report ought to be sought by the CFA from the mother and baby unit in the UK, where the mother had resided for eight weeks a few years previously with Baby A, who had been put up for adoption in the UK without the mother’s consent.
The GAL said she would like to see a Child in Care review as soon as possible, with the mother to be included in ensuring that a very clear care plan would be in place for Baby C. Regarding the breastfeeding issue, the GAL said it was a question of trying to manage risk versus benefits of breastfeeding “in a safe, managed, controlled way”. She noted that sibling access was due to occur with the mother soon. She had observed access between the mother and Baby B (who was born in Ireland, following the adoption of Baby A in the UK) to “be of very high quality”.
When questioned by the mother’s barrister, the GAL acknowledged that there had been quite a few changes in social work staff in the previous month. The barrister asked the GAL was she aware that the mother provided toxicology reports (which the mother privately arranged herself) to the CFA in the months leading up to the birth of Baby C. The GAL said she was “not fully aware of the specifics of that”.
The barrister suggested that the GAL only went to visit Baby C after she became aware of a parallel High Court application. She confirmed that she had seen the baby once since her appointment, but said that was in part because the baby had Influenza A and it was her practice to try not to spread such illnesses to other children she visited in the course of her work.
The barrister asked her about the supports the mother had engaged herself.
Barrister: “Have you spoken to anyone in Jane’s Place?”
GAL: “No.”
Barrister: “Have you spoken to anyone at the Rotunda?”
GAL: “No.”
GAL: “I met with her and found her endearing. I found it hard to reconcile the reports with the person I met. I understand this to be a feature of EUPD, which needs assessment. Her supports need to be specific and targeted.”
Barrister: “In the absence of support, she has gone and found her own support, and you won’t talk to them”.
GAL: “I believe the focus should be on constructing a letter of instruction for an agreed PCA assessor.”
The barrister put it to the GAL that the mother received a diagnosis in England (not in Ireland) of EUPD in 2022, and a diagnosis in Ireland of autism in 2023. He asked the GAL if she was familiar with autism. The GAL said she had a broad understanding, but would not be able to diagnose.
Barrister: “Are you aware that an autistic person can become overwhelmed and do things that might seem strange?”
GAL: “Yes.”
Barrister: “Are you aware that people with autism can be misdiagnosed with EUPD?”
GAL: “I have seen that before.”
The GAL said that she felt for the mother, having to deal with different social workers for Baby B and Baby C.
The judge asked the GAL if the meeting between the assessor and mother would take place after the other meeting alluded to earlier in evidence. The GAL said No, that meeting would be about the more immediate breastfeeding piece. The GAL said that a psychiatric report may also be needed. She said: “For a newborn baby, days are massive, weeks are huge”, alluding to the urgency of this case.
The judge asked: “Potentially, she could continue to express [breast milk]?” The mother’s barrister interjected: “She has been expressing milk and the CFA won’t accept it.” The judge asked the GAL: “Is the child receiving breast milk?” “No,” replied the GAL, adding that a section 47 application had been brought in the District Court to allow the mother continue to breast feed Baby B, and that application had been refused, and was not appealed.
Mother
The mother’s barrister confirmed with the mother that the court was primarily only concerned with the last month for the purposes of this application to extend the interim care order.
Referring to the 16 referrals made to the CFA in early 2025, the barrister asked the mother what had she been trying to do. She replied that she had been pregnant and homeless, and was trying to seek help. She was seeking a safe place for herself and then unborn Baby C. She said the Rotunda team were the first people to take her autism into account. By narrowing down what she struggled with, she said it was the first time she felt understood, and her mental health improved from that time onwards.
She confirmed that the Rotunda mental health team comprised of a medical social worker, occupational therapist, clinical nurse practitioner and two psychiatrists. At Jane’s Place (a service for women in homelessness and/or addiction), the mother’s counsellor continued to be a great support.
The barrister brought the mother back to the day when the District Court judge granted an initial ICO for Baby C. “What happened next on that day?” She replied that she returned to the Rotunda Hospital from court at around 3pm. She said there were lots of people in the room and Baby C was taken from her “pretty much immediately”. She was told that she could not breastfeed from that point, and could not express milk. She was given a sample pot and was told, if two tests were clear, she could resume breastfeeding. “Were you told that the judge ordered that [the cessation of breastfeeding]?” “Yes.”
She described another toxicology test completed at Tusla’s HQ at Northwood in Santry some days later, which produced a positive result, but the man from the institution conducting it said it could have been caused by her mental health medication, and could have been a false positive. The mother said she was not offered a third test by the CFA. Instead, the CFA informed the Rotunda of the false positive, and the Rotunda carried out a third test. The mother was unhappy with how long it was taking to get the results of the tests, the Randox test being tested in Belfast, and the Rotunda test being sent to the UK.
The mother confirmed there had been no referrals in the previous month. She said she was coping a lot better than she would have before she started to attend Jane’s Place and the Rotunda. She had not spiralled into self-destruct mode, and claimed to “now have tools to deal with things better”. She had seven certificates in DBT training that she attained of her own volition.
Barrister: The CFA feels it is too early for you to have custody of Baby C. They feel access is going well.”
Mother: “I love seeing them (Baby B and Baby C), they are the best part of my life. I am 100% open to support. I just want to be able to care for my children.”
Barrister: “You understand they want an assessment.”
Mother: “I am open to a PCA. I think I should be with him [Baby C] for that assessment.”
Barrister: “Would you live with the midwife who was prepared to take you in?”
Mother: “Yes.”
Barrister: “Would you live at a family hub?”
Mother: “Yes.”
Barrister: “Would you live at a mother and baby home?”
Mother: “Yes.”
Barrister: “So you would do whatever is required to have the care and custody of your child?”
Mother: “Yes. I believe it is in his best interests.”
The mother gave further evidence that she was unhappy with Baby C suddenly being moved on to baby formula. “I have milk literally tailored to his needs, instead of processed, unnatural feeds.” She had requested that the CFA use slow-release bottle teats, designed for use when moving from breast-feeding to bottle-feeding, if the CFA was insistent on moving Baby C onto formula. The mother said the social worker told her the bottles were not available in Ireland, and that if she wanted those bottles to be used, she would have to provide them herself. The mother ordered eight bottles online and provided them to the CFA to be given to the foster carers.
She said that at a recent GP visit, the doctor was concerned that Baby C was not meeting weight gain targets. The foster carer was concerned that Baby C was bringing up a lot of the formula feed. The GP prescribed Gaviscon, to be administered up to six times a day. The mother said that her solicitor wrote repeatedly to the CFA regarding the feeding issue and had received no response. Then, the mother’s legal team brought an application to the High Court, asking that it be ordered that the baby was entitled to receive his mother’s milk.
After that application was made, in the intervening weekend, Baby C had become very unwell and was brought to hospital. The mother described how, on Saturday afternoon, she received a voicemail from an out-of-hours social worker looking to discuss Baby C, but did not leave a number. She had found Tusla’s out of hours numbers and eventually got through to someone who told her Baby C was very unwell, but would not tell her where he was or what was wrong with him.
At around 1.30 pm on the Saturday, she was informed that he had been brought to Temple Street Hospital at approximately 12.30 am the previous night. A lumbar puncture procedure was carried out on him to rule out meningitis. The mother said that the CFA was adamant that she was not allowed into the hospital to see Baby C. As it was the weekend, the CFA did not have access workers available to supervise such a visit.
Later on the Saturday the CFA relented and allowed the mother to visit Baby C, accompanied by her solicitor, who agreed to supervise. At that stage, the mother said the only information she had was that he had a high temperature. She recalled how it was difficult to see him with a cannula in place: “He was asleep and whimpering. I’d never seen him do that. He curled up in my chest and immediately went to sleep.”
The barrister asked if she had any other concerns regarding how Baby C was being looked after. She referred to concerns about his car seat, his clothing and the fact that the foster carers had cut his finger when cutting his nails.
The barrister asked if the mother had anything else to say. She said: “Everyone has made the assumption I’ll be no good, but I haven’t been given a chance.” She confirmed her current access plan to be two days a week with Baby B in one Tusla office and three days a week with Baby C in another. She had never missed an access visit with Baby B in the previous 15 months, except once due to illness.
The CFA’s barrister listed the 16 referrals made in 2025, ranging from An Garda Síochána, domestic violence refuges, and maternity hospitals. The mother said the barrister had given a list, but the mother did not accept all referrals had been investigated. Some, to her mind, did not happen. “If there was such a degree of referrals about me, a pregnant, homeless woman, why didn’t they put in place supports? Getting the family hub was down to me, not the CFA. The CFA gave me no supports and then swooped in and took my child.”
The CFA’s barrister put it to the mother that Baby C was prescribed Gaviscon for reflux and that it was not related to stopping breastfeeding. The mother replied that he had never suffered from reflux when he was being breastfed. The mother said that the HSE’s guidelines state that if you are going to stop breastfeeding, it should not be done suddenly, and “that is what the CFA forced me to do”.
Mother’s counsellor
The mother’s counsellor had a B Sc in Counselling and Psychotherapy, and Tusla accredited certifications in Children First and Working with Vulnerable Adults. She confirmed she had been seeing the mother for five months and continued to meet with her weekly for counselling sessions. She confirmed that she regularly contributed to and participated in peer reviewed research. Overall, she said that her process was to meet the client/patient where they were at, and to be future focussed. The solicitor for the GAL asked the counsellor if she was qualified in DBT therapy, which she confirmed she was not.
She said that the weekly sessions with the mother focused on dealing with trauma, attachment issues, grief, emotional regulation, and positive coping strategies. She said she had seen “significant increase in emotional regulation.” She said she believed the mother was coping really well in the circumstances. “She is consistently showing up and putting the work in. I have no concerns. I don’t see why she should not be allowed to parent with appropriate supports in place.” When asked whether she thought the PCA should take place before or after the mother was reunited with Baby C, the counsellor said: “I am not aware of any reason why she should not be allowed to mother.”
Mother’s Solicitor
The mother’s solicitor had filed a sworn affidavit before court. The barrister asked the solicitor if she had written to the CFA since the initial ICO was granted. “Yes, immediately, to close gaps and to progress matters. We were very concerned that breastfeeding was stopped abruptly. There was no tapering off. Baby C was immediately put on formula. I asked for a feeding plan.”
The CFA’s barrister objected that she did not see how lack of correspondence went to threshold. The mother’s solicitor replied: “If we are to proceed on the basis of ‘everything will be sorted out in the future’, this is concerning when nothing has happened in the last month.”
The judge said he was also concerned. The CFA’s barrister said again that it did not go to threshold, and she noted that a care plan was required within six weeks of a child being first taken into care.
The mother’s solicitor carried on with her account of the previous weeks.
“The first 24 hours were very difficult. Access was cancelled. I wrote again with a view to engage. I asked for a copy of the order that allowed them stop breastfeeding. I asked for a feeding plan. I still have not received anything. My client is autistic. She goes off plans. It was our intention to meet the CFA’s goals. There has never been a stated goal post. I have asked for a reunification plan. I’ve asked for more access in the community. What is not expected is updates on court dates. That is quite unhelpful.
“Baby C has dropped from 50 per cent to 15 percentile of his weight trajectory. We knew two samples had been done and one was pending. We thought feeding would resume. But there has been no correspondence. She is not a drug user or drinker. I couldn’t understand how the CFA would take a step that would cause harm. There were and are step options, for example donor milk, milk stored in the Rotunda.
“We looked into an option of a private assessor completing a PCA within 8 weeks. We provided an option of the midwife who agreed to a supervised living arrangement. We listed five options used by Tusla and the HSE as 24-hour monitored placements for different people with different needs, including Nua Healthcare, Daffodil Care. We received no response. We cannot refer her. The referral has to come from the CFA.
“I have researched as much as I can. I understand they are under-resourced. It is in no one’s interest for this to drag on with no assessment, as with Baby B. We say the applications to the mother and baby units prejudiced our client. The up-to-date Rotunda report was not included with those referrals. The referrals were filled out under time pressure by the social worker. The Rotunda was supportive of them going to a mother and baby unit. The Rotunda supplied an up-to-date report for court today, and they maintain their support of the mother. The Rotunda and Jane’s Place were prepared to maintain their support of her if sent to a mother and baby unit.”
The barrister asked the solicitor: “Do you think the PCA should take place before or afterbeing reunited with Baby C?” “I think she needs to parent him in an environment with 24/7 supports. It is not enough to just observe them at access.” “How long have you been writing to the CFA?” “Since the last court date. No engagement. There has been no traction.
“There are a number of barriers. The CFA has to agree to it. Funding. It is important that it is done with the CFA. We cannot do this alone. We need feedback and we haven’t got that.”
The barrister asked: “Do you know today what the CFA wants?”
The solicitor answered: “Only from what’s said in court. It is easier to decipher what they don’t want. All professionals involved in her care are supportive of her going into a supervised unit. She managed very well with him in the Rotunda for the first two weeks.”
The CFA’s barrister remarked that, in all her years of experience, she had never seen a respondent’s solicitor give evidence, and commented: “I have no intention of calling my solicitor.”
She asked whether the mother’s solicitor had any child welfare or protection qualifications. “Child safety for Sports Ireland,” the solicitor replied. The CFA’s barrister asked: “Why didn’t you bring a section 47 application for breastfeeding to be restored?”
“Because we thought there was to be an urgent meeting and our correspondence went unanswered.”
The barrister listed the placements proposed by the mother’s legal team. She said there were only three official mother and baby units in Ireland, and those were the ones canvassed by the CFA. The mother’s solicitor disagreed that the CFA has canvassed those homes (one of which was closed due to staff shortages) before coming to court. She said that they were only canvassed after she spoke with a senior member of the law firm acting for the CFA on the day of court.
The GAL’s solicitor put it to the mother’s solicitor that the appropriate legal recourse would have been to bring a section 37 or section 47 application, the former concerning access and the latter to get directions against the CFA.
Closing Remarks
The mother’s barrister summarised their position as being “we’re a month down the road. We feel nothing has been done. It feels like the CFA is coming to court and now making proposals.”
He addressed the judge: “Your concern is [another judge in this court] made an interim care order a month ago and why would you override this? In granting the order, that judge said it was an either/or situation, whereby Baby C would either stay with the mother or go to the CFA, but we say it was not an either/or situation.”
He referred to section 19 of the Child Care Act 1991, where the test is the same, but the order, a supervision order, was less intrusive. He said that section 3 of the Act, the Constitution, case law and Tusla’s handbook all state, where possible, a child should remain in the care of its parent. He said he believed the court had jurisdiction to grant a supervision order. “Everyone understands there should only be intervention where required. We are really anxious they are reunited. What must not happen is that you are frustrated from making an order because they [the CFA] won’t tell you what is required.”
In her closing remarks, the CFA’s barrister disagreed that the court had jurisdiction to make a section 19 supervision order in the current circumstances. “The Child Care Act 1991 is very nuanced. Section 17 does not allow the court to make a section 19 order if the threshold is not met. The Oireachtas did not provide for this. The options open to you [the court] are to refuse or grant an extension of the ICO. You could make section 47 directions.”
In her closing remarks, the solicitor for the GAL said that the court must take into account the factors listed in section 24 of the 1991 Act before reaching a decision, Baby C’s best interests being the paramount consideration. She reiterated that in independent PCA was needed.
Judge’s Decision
At around 8pm, the judge rose to consider his decision. On returning, he summarised that this was an application to extend an ICO for a baby born in November 2025, who was now six weeks old. He confirmed that he went through his notes taken, the reports and authorities handed into court.
He said he did not wish to criticise, but wanted to make some comments. Regarding the first witness, the judge said that she had informed the court she had reviewed the file but then could not answer questions. There were sections missing from her co-signed report. The judge said he believed she should have been put in that position. Referring to the fact that different social workers were allocated to the baby’s sister, who was similarly taken into care at birth a year earlier, the judge said, “if there are already social workers entrenched in that case, they should also have been allocated to this one”.
Regarding concerns raised, the judge said: “The GAL is basically saying breastfeeding should be resumed asap.” He noted her concerns regarding the mother’s mental health and risk of the baby being placed in harm’s way. He noted that there were 16 referrals in the previous year and the CFA as a result had had significant concerns. The judge said the court was told that a meeting was due to go ahead, but was not told when. The GAL had repeatedly sought a report from the mother and baby unit in the UK, where the mother spent eight weeks with her first child. It was the CFA’s role to request that report and that had not yet been done.
He said that the mother had come across as “a kind, caring person”. She had had issues and traumatic events. The judge was especially sorry to hear about her sister, who he said had “had her life taken from her.”
He continued: “There are issues around diagnosis and the mother says she has been misunderstood by services. She has given evidence about how she feels now and has done a lot of work. She could reside with the midwife who offered to take her and the baby in. As well as Emotionally Unstable Personality Disorder, she was also diagnosed with antisocial personality disorder, which she does not accept. She does not agree with some referrals and stated in evidence that ‘it didn’t happen’. The psychotherapist gave evidence that she accepts that a PCA would be helpful. The solicitor who gave evidence, based on a sworn affidavit, has acted professionally and in the best interests of her client. She contacted the CFA but received no response.”
The judge noted that he must take into account the factors listed in s.24 of the 1991 Act before reaching his decision, the child’s welfare being the paramount consideration. He deemed that, as the child had already been taken into care by the CFA, he was not inclined to hold that he would have jurisdiction to make a s.19 supervision order. There was no reference to s.19 in s.17 of the Act, he said, and the child was in care pursuant to s.17. He reiterated that various agencies from different counties made 16 referrals since the previous March 2025. He said the question remained why the referrals were not acted on, and he noted that the mother disputed some of the referrals.
Referring to the issue of breastfeeding, he said: “She is expressing, but the milk is not being accepted by the CFA. I don’t understand how it can’t take place. The GAL supports immediate resumption. If there is an issue with drugs, urinalysis can be used. I don’t understand why that is not resolved at this stage.
“I am concerned by how long the PCA is going to take. An assessor needs to be identified. Letters of instruction have to be agreed. There needs to be a timeframe put in place. The Care Plan is overdue, while I acknowledge that there are two weeks left in the six-week timeframe from the initial ICO. This must be given urgency in this case.”
“At this point, I have to decide whether to extend”, he said.
“I have reasonable cause to believe the order should be extended. Obviously, there is no consent, so I cannot extend beyond the 28 days stated in the Act.”
He lifted the in camera rule, to advance progress in the case.
“The care plan should be done by next month. There has to be something put in place regarding a PCA. This is not a section 47 Direction. And I would ask the CFA to look at resuming the element of breastfeeding.”
High Court application
Some days later the mother’s lawyers brought an Article 40 habeus corpus (“produce the body”) application to the High Court concerning the baby. In parallel, a District Court judge had extended an interim care order (ICO) for the baby earlier in the week. Described by the judge as an “innovative” interpretation, the habeus corpus application was brought in an attempt to vindicate the baby’s right to his mother’s breast milk.
The barrister for the CFA told the judge that a meeting of all professionals involved concerning the breastfeeding issue was due to occur later that week. The judge said she was very conscious that this application could “create an uncomfortable precedent for children in the care of the State.” Mindful of the District Court proceedings running alongside this High Court application, the judge said she “did not intend to create a parallel process”. She proposed adjourning the Article 40 application until after the professionals’ meeting had occurred.
The mother’s barrister said that the meeting should have happened the previous Tuesday but had been cancelled, and the District Court judge had been critical of the fact that it was cancelled. He said that the CFA had still not given a firm day and time when the meeting would take place.
The High Court judge said she expected the meeting to happen. She reminded all involved that this was a regime for Baby C and that perhaps the less said, the better, as all would have to work together. She emphasised that the court’s primary concern was speed: “If we spend a day on law today, and I have to consider it, that could be slower than waiting for the meeting to take place.” She adjourned the matter for a day.
The next day the matter appeared before the same High Court judge. The mother’s barrister said that the baby’s health was suffering due to not being breast fed. He said that after being suddenly moved to formula feeds, the baby ended up in hospital, had to endure a lumbar puncture procedure and had been placed on Gaviscon reflux medication up to six times a day due to regurgitating formula feeds and dropping off his weight gain trajectory.
The mother’s evidence was on affidavit. Her barrister confirmed that she had provided two clear toxicology tests but had not yet been allowed resume breastfeeding. He said that the mother and her legal team were disturbed that Baby C was taken off breast milk despite there being no evidence of drug use by the mother. He said that it was the CFA’s and national best practice that “breast milk is best”, and he asked that the court to “abide by Baby C’s constitutional rights and let him have his mother’s milk.”
The CFA’s barrister was critical of the fact that the mother’s legal team had not brought a section 47 application in the District Court asking the court to direct the CFA to allow breastfeeding. She noted that the Child Care Act 1991 also allowed for the District Court to make a section 47 Direction on its own motion and it had not done so. The District Court had left breastfeeding “to the discretion of the CFA”.
She warned that the High Court application was creating a process parallel to the District Court proceedings also in being. She noted that a District Court judge extended the baby’s interim care order earlier in the week and he made no section 47 direction. Referring to the mother’s visit to Baby C in hospital the previous Saturday, the CFA’s barrister said that she had had shingles but had failed to inform the CFA or the hospital.
The CFA’s barrister confirmed that a professionals’ meeting had taken place. They proposed that the mother could attend Tusla offices on the morning of access visits and express milk under the supervision of a Tusla staff member. Baby C could then be fed the milk during the access visit in the afternoon. The barrister noted that there would be no facility to follow this plan over Christmas, but that expressed milk could last up to seven days in the freezer and could be supplemented with formula if needed over the holiday period.
A barrister for the GAL said he wished to endorse the comments of the CFA’s barrister. He said that SMcG v CFA [2017] 1 IR 1 set out grounds for a habeus corpus application in child care matters, which involve a “fundamental denial of justice and the release of the child”. The barrister said, in the current case, “it is not really a case of justice having been denied, more that it has not been sought”, referring to the fact that no section 37 or 47 application had been made regarding breastfeeding, discharge, or access.
He said that, when it concerned breastfeeding, a section 37 and/or section 47 application in the District Court only required two days’ notice. He was concerned that the High Court was being used as a parallel jurisdiction, whereas the District Court had jurisdiction under the 1991 Act.
The judge asked the mother’s barrister: “Why have you not made a s.47 application?” The mother’s barrister said he believed a habeus corpus application would be quicker. He said that neither the mother nor his legal team had been invited to the professionals’ meeting. He said: “If we leave without an order, this will all dissipate.”
He said that the mother had attended a GP for the shingles and it was not something that would prevent her breastfeeding. “It’s not an issue. If it was, they [the CFA] would not be agreeing to breastfeeding.”
The judge said: “There seems to be a total lack of trust between the applicant and the CFA.” She asked the mother’s barrister: “What is the difficulty with the plan? It may not be the applicant’s ideal situation, but it falls far short of the court making an Article 40 order. I cannot order how breastfeeding will take place. I don’t see how you can proceed [with the Article 40 application] in the teeth of a workable, even if not ideal, solution.”
Having received further instructions from the principal social worker, the CFA’s barrister noted that access and expressing could be reversed and that the CFA would inform the mother and her solicitor in writing immediately of any change. From the first week of the new year, the social work team would look at moving the plan forward, for example, whether it would be feasible for the mother to express milk at access visits with her other baby (Baby B).
The mother’s barrister noted for the record that they did not believe the plan to be in line with best practice. In particular, they found it unsatisfactory that the mother would be supervised while expressing milk. However, on the basis that breastfeeding was to resume, he withdrew the Article 40 application.
For completeness, the judge made a formal order refusing the application. She said she would hear applications for costs in the New Year. She invited the parties to file written submissions on costs, due to the unusual nature of this application.