High Court hears Roma mother may not leave Ireland with her child – 2014vol4#26

In the High Court, a judge heard that a Roma mother wanted to return home (she was from Eastern Europe), but the Irish State would not allow her to leave with her child, who was the subject of an Interim Care Order.

There were cultural difficulties, the mother’s barrister told the court; the case involved “inadequate parenting techniques that an Irish mother would not find herself in detriment of.” Furthermore, the mother could now not communicate with her child, who was being raised as an Irish child by an Irish family and learning English. The child was not entitled to citizenship and the mother just wanted to go home.

The CFA barrister told the court that provision regarding accommodation had been made for the mother by a voluntary group and she was in receipt of a social welfare payment of €140 euros a week. It was very unlikely that the Article 15 (of Brussels II bis) proceedings could progress (requesting that the Eastern EU country take jurisdiction of the matter as it had been the mother’s habitual residence). There did not seem to be an appeal mechanism. They had tried to get the Embassy involvement. The mother was also pregnant and there were potential proceedings in relation to the unborn child when born.

The barrister’s mother said the only option open to her client was to “go home on the bus and leave her child here.” The judge said she hoped there would be a plan in the very short term and adjourned the matter to the following week.

When the case returned, the CFA barrister told the court that proceedings under Article 15 of Brussels II bis were no longer applicable to the Roma woman. A judgment from [the Eastern European country] had arrived that morning to the CFA office rejecting the request of jurisdiction and therefore Article 15 proceedings could not be pursued. The CFA therefore had given him instructions to end proceedings before the High Court.

“The court is entitled to be told the details of the judgment,” said the barrister for the mother.

“There doesn’t seem to be any plan other than to put my client’s children in care until they are 18, because they are a Roma,” said the mother’s barrister. “Without her children she can go home, but she is reluctant to do that, my friend says the next stage is that the child goes into care till 18? Will the State finance her here till her child is 18? Will there be adoption? I’m quite sure the social work department are doing exactly what they deem to be appropriate.

“It would be utterly bizarre if my client has both children put into care in Ireland. She doesn’t speak English. What happens into the future? If a permanent Care Order is made then the rights of the parent are permanently cancelled. There does seem to be a bigger picture, my client’s child in [the Eastern EU country] would not be in any worse position than any other child there. It is not perfect, and does not match standards of the CFA but it would [match child welfare standards] in [the Eastern EU country],” said the mother’s barrister.

The judge asked for a translated copy of the judgement for the next sitting.

“This is a highly unusual case,” said the judge. “It is inter-jurisdictional and the first Article 15 where a request has been rejected, making it rather novel and unique. The court has to be mindful of the major gap in thinking in the case and there are huge cultural issues as far as I can see.”

She invited the mother’s barrister to bring an application to the court. There was a question of whether or not issues of EU law arose, said the mother’s barrister. The judge said that while it was a comprehensive case she would like to see some documentation on the mother relating to inadequate parenting. The CFA barrister informed the court that he would have a booklet put together for her, including the affidavits which had given rise to the application in the first place.

The matter was listed to come back in the following week and was listed for mention in the District Court the following day in relation to hearing dates for the Full Care Order.

Two weeks later, the CFA barrister told the court that the social work department now felt that it would not be in the child’s best interests to return home with her mother. It was a complex set of circumstances, the barrister said. It was now the view in the social work report that children in her country of origin under the age of two could not be placed in institutional/residential care. There was also the situation regarding attachment to her foster parents here in Ireland.

The mother’s barrister told the court that this was unanticipated; there had been a lot of steps backwards since last week. The CFA now had a concern regarding the child’s age that she could not be placed in institutional care in the mother’s home country. However she would reach two in spring. Furthermore as the mother would be going home to live with her parents, there was a reasonable expectation of the child going home and being reunited with her mother.

The mother’s barrister said the issue of institutional care was now a live concern because someone had read a report written by UNICEF in 2012. “The fact of the child being taken away from the mother is now being used as the justification for the child being taken away permanently; it’s almost as if the mother doesn’t bring anything special to the relationship. Of course [the child] displays separation anxiety when [the foster mother] leaves the room. The child will wake up when she is 13 years old and find the State took her away from her mother.”

The mother had no physical or no mental health disability, said her barrister. “One wonders if the CFA is going to take all Roma children into care at this stage. All that’s on offer is that we’ll take the kid into care permanently and give the mother English lessons.”

“I cannot for the life of me see why a joint letter from the parties cannot be sent,” said the judge [in answer to the rejection of the Article 15 application]. She did not see the proceedings being suddenly at an end, questions must be formally asked. “It does not sit well with me, it seems to me quite wrong that the child is being raised English speaking. I see a difficulty for the Irish state down the road in that regard, I am not happy with this situation at all.”

The judge said there were questions to be asked; if the mother and new baby travelled back to their country of origin, they would be present there and entitled to the protection of that State. If the child who is in care here is returned before the age of two with her mother and social worker what was the position to be? The judge required the CFA to take part in the preparation and construction of the letter.

“The Irish State is keeping on the burden of keeping a child in care here, possibly two [children], when the mother wishes to return. They should have a system to deal with it. The child may have an attachment with the carer but the mother is the mother of the child, to break that link in my view is very serious. This is utterly urgent.”

A draft letter would be forwarded to the CFA this week, said the mother’s barrister, and also provided to the court. The judge said there would be some direction by the court in relation to the draft as prepared.

“There’s an opportunity here to raise further questions that could lead to a resolution, that opportunity should not be lost. In the judgment [the rejection of Article 15] certain things could be pointed out that are inconsistent.”

The judge said it was crucial to see if the mother’s family of origin were willing to support her on her return. The mother should clarify that position.

Some weeks later, the mother gave birth to a baby and the CFA obtained an Interim Care Order in the District Court for the baby. Four weeks later, Interim Care Order extensions were sought for the baby and his half-sister.

The mother did not attend the hearing but gave her consent to the order. The half-siblings’ fathers did not appear and their solicitor did not have instructions. All three parents were represented by the same solicitor.

The guardian ad litem had been appointed and was at the initial stages of his assessment.

The social worker told the court that the baby’s father had only attended three access visits since the last court date. Meanwhile, the access visits had posed difficulty for the mother as both the young baby and the young child needed attention. Therefore the hour and a half of access was being staggered between the two children. There would be a separate half hour for the older child and her mum at the start of access, the last half hour would be for the mother and the baby.

The father was much less consistent than the mother at access, she had begun to take on advice and respond to it (in matters such as winding the baby).

A language development package in the language of her country of origin had been sourced online by the social work department and would be bought. The mother spoke both this language and Roma. The social worker told the judge that it had not been possible to source a Roma interpreter for the mother, and although her primary language was Roma she also spoke the other European language.
There were no formal Roma language packages or learning supports available. While Roma was the core language used by Roma people, depending on where they lived it would be mixed in with parts of other languages resulting in variations, said the social worker.

Segments in the access visits would be given over to the mother talking to the older child in Roma, talking about certain topics, traditions and where they came from.
A cultural mediator had been contacted that could offer the mother support in breaking down the cultural barriers and what was lost in translation. He was from the Roma community and the parents had responded well to him. He had a lot of connections to the Roma community and knew about resources that the department would not know of. He had a link to a particular woman who did parenting work within the community; the social worker was hoping that person would be suitable to work with the mother.

The CFA solicitor told the court that the case was still before the High Court, clarification was being sought from the authorities of the other country on the rejection of the Article 15 transfer (which the CFA were no longer supporting).

The social worker told the court that the social work department was no longer supporting an Article 15 transfer out of the jurisdiction. The department had found out that in her country of origin children up to two years were guaranteed a foster placement, however after the age of two they were at risk of being moved into a residential care setting. The child’s placement in Ireland was very important and she was turning two next year. [The baby had been put into the same Irish foster placement].

The judge said that there was no material change in circumstances and the threshold criteria continued to be met. There was also consent from the mother. She granted the Interim Care Order extensions for both children.

When the case was mentioned at the Minors’ Review List in the High Court a few days after the Interim Care Order extension, senior counsel for the CFA told the judge that a letter had been received from the authorities in the woman’s country of origin..

It was four or five pages in length, he said. On one view it seemed that if there had been a full understanding of what was being asked of them [the Article 15 application], the request might have been accepted. There may have been confusion as to how the Regulation [Brussels II bis] was operated between the two countries as well as a confusion of the mother’s actual desire to return home, (the authorities seemed to think she wanted to stay in Ireland while her daughter returned alone). The CFA senior counsel asked for the matter to go back to allow them to take instructions and to re-read the letter.

Senior counsel for the mother told the court that obviously it would not have been in the best interests of the child to be sent away to her native country from her mother and it was a bizarre understanding of the requested Art 15 application.

The judge suggested a composite reply from both senior counsels as well as an analysis as to how the authorities here view the Regulation and how the operating countries view it. A draft copy of this reply should be given to the guardian ad litem.

Senior counsel for the mother told the court there was a full Care Order hearing for the older child in the coming months in the District Court. If the child was to become the subject of a full Care Order it would mean that the mother would become entitled to any benefits an Irish mother would be entitled to. These included rent allowance, social welfare payments and child benefit.