On 30 October the Irish Supreme Court heard submissions in a case concerning a one-day old baby placed in emergency care by the HSE. The breastfed newborn was taken from his mother, even though there was no allegation of wrongdoing on her part. The physical separation of mother and child was because the High Court found there was an “artificial” distinction between the mother and child as separate legal entities.
According to the child’s senior counsel, there are two important public interest issues that flow from this “artificial” distinction.
The first issue is whether the rights of a child and parent can be heard when an application for an emergency care order (ECO) is being based on the other parent’s alleged wrong-doing. This relates to fair procedures. Under current procedures, the mother (an innocent party) did not have an opportunity to be heard at the time the ECO was made, and would only have an opportunity to be heard when the interim care order was sought.
The second issue is whether the High Court should have to consider if the child can remain with the innocent party parent. The child’s senior counsel argued that there was a “positive obligation” on a court to consider whether removing a child from an innocent parent was justified, but the High Court did not consider this when granting the ECO.
The HSE’s senior counsel argued that, because the child had now been reunited with his mother, his appeal against the High Court finding was moot and raised no sufficiently important issue to require determination by the Supreme Court. At this stage Supreme Court has reserved judgment on whether the case features sufficiently important legal issues to proceed to hearing.
As highlighted by the HSE’s senior counsel, mootness can be a problem in cases like this that have a public interest element. Legal proceedings are moot when there is no longer a legal dispute between the parties. This doctrine of “mootness” is a barrier to public interest litigation as it means that a plaintiff cannot pursue their claim if their individual problem, on which their claim is based, has been resolved. This is so even if the problem may arise for others in a similar situation. In this case, counsel for the child’s father also supported the application to determine these public interest issues, because they had implications for many other families. Chief Justice Susan Denham noted however that this was not a test case.
Click here to read an article in the Irish Times about this case, and click here to read another Irish Times article.
Click here to read more about mootness and other barriers to public interest litigation on the PILA website