A mother in a direct provision centre refused to accept the discharge of an Emergency Care Order, which would allow her children to be returned to her. The children had been in the care of the State for five nights during a period of incarceration of the mother. She had been arrested at her home prior to being incarcerated as the State had been seeking to deport her for a number of years. She had subsequently been released and was now living in a direct provision centre, where she said she had concerns for the children’s safety if they were returned to her there.
The HSE brought an application to discharge the Emergency Care Order, the social worker had interviewed the children and the mother and there were no concerns around her care of the children. The only reason for the ECO had been the non-availability of the mother due to her incarceration.
The mother told the court that she wanted her solicitor to represent her. She had refused to sign the retainer for the Legal Aid Board solicitor prior to the proceedings. She said she understood the ECO would run until Friday, her solicitor was available on Friday, two days away.
The judge said: “This court has nothing whatsoever to do with your immigration case, if you or your solicitor attempted to bring any of those issues into this court I can’t deal with them.” He said however that he understood she had built up a relationship with her solicitor and had a significant amount of trust and confidence in him and therefore would like to have his advice.
The mother had written a letter to the District Court, the judge wanted to know if she wanted him to read it. She said, “yes”. Essentially it was a letter of complaint, stating that her solicitor was not given enough notice to attend.
The judge said: “I fail to see how the interests and welfare of your children would be served by continuing an order to keep them in care, when on the basis of the evidence it is patently unnecessary to do so, that cannot be in their interest … If you have complaints it seems to me that the complaints should be brought to other places. I regret you don’t have a lawyer here so he could assist you.
“I don’t want [the mother] going away from here feeling her case has not been heard properly. I have to balance that properly against the case that the children are being returned to her care, it is in the interests of their welfare for them to be returned to the mother.”
The HSE solicitor suggested adjourning the matter to allow the mother’s solicitor to be present.
The judge asked the social worker if the children had expressed their wish. “Yes, they want to be with their mother, they have never been separated from her, they don’t seem to be aware of what is happening, they seem to have been quite shielded from her circumstances.”
The mother was sworn in. “Do you understand that the application is to discharge the order in respect of your children, if it is discharged they will be returned to your care immediately, if it is not, they won’t, do you understand,” asked the judge.
She said she did not want it discharged. She had not been able to sleep last night (in the direct provision centre). She said she had stopped paying the traffickers and was afraid she would not be able to protect her children in there. “I love my kids but their security it very important to me.”
She did not want an opportunity to speak with a solicitor from the Legal Aid Board, she said, she trusted her own solicitor.
The judge said there was a question he did not want to ask which was: “Are you prepared to accept the return of your children and to care for them, if you answer it in the negative it may have consequences for the future…serious legal consequences…I am recommending to you that you take legal advice before you answer that question.”
He said he had no option but to adjourn the application. “There are huge consequences to this, I don’t think you understand the consequences of what you’re doing and I don’t think the consequences of what you’re doing are necessarily what you think they might be. Your children are now in care and remaining in care because you wish to have legal advice and they are not where they want to be. I don’t want to have a situation where the children are in care for a minute longer than necessary, where a parent is possibly refusing to take them.”
After a brief adjournment the case returned, the HSE solicitor said she had spoken to the mother’s solicitor who said the mother was concerned for the children’s safety but did want them back. The HSE solicitor told the court the direct provision centre was a gated complex with 24 hour security, there was a swipe for the rooms. The mother’s solicitor could be in court the next day.
With very considerable reservations the judge adjourned the application till the following day, when the mother’s solicitor was present. The Emergency Care Order was discharged, and the children were returned to the care of their mother in the direct provision centre.