A High Court judge has appointed a guardian to independently represent two young teenagers at the centre of a court battle over whether they should be returned to their father, who has custody of them.
The children remain in foster care organised by Tusla early this month after they told their school authorities their father had taken their mobile phones and they did not wish to return home to him.
The father, who is separated, says the phones were being used to contact their mother, his estranged wife, in breach of a court order and that she has poisoned them against him. He says he placed them in voluntary care on July 2nd to avoid a scene at the school but, when he sought their return the following day, Tusla failed to return them.
He claims there is no lawful basis for their remaining in foster care, for reasons including the District Court had refused to grant Tusla an emergency care order.
Legal proceedings
Tusla says it has not acted unlawfully and will proceed with an application for an interim care order before a District Court next Monday.
There are currently four sets of legal proceedings concerning the children.
The father has initiated High Court judicial review proceedings seeking various orders, including directing Tusla to hold a fresh investigation into his complaints of parental alienation.
He claims an earlier investigation by Tusla was flawed and also wants to overturn its findings of coercive control by him of the mother, which he strongly disputes.
He has also brought an application for an injunction directing the children’s return.
There are separate District Court family law proceedings and care proceedings concerning the children.
Injunction motion
When the High Court proceedings were mentioned before Mr Justice Anthony Barr on Tuesday, Micheál P. O Higgins SC, for the father, asked for an urgent hearing of the injunction motion.
Noting Tusla wants a guardian ad litem appointed to represent the children, counsel argued that application should be made formally. The mother has a similar application before the District Court, he said.
Feichin McDonagh SC, for Tusla, said it has not acted unfairly in any way. “The core issue is there are two young teenagers who refuse to live with their father,” he said.
Whatever the reason for that, they are adamant at present they will not return to him, but there has been a lot of contact in terms of trying to resolve the issues, counsel said.
Guardian
It is essential a guardian be appointed because the voice of the children needs to be heard, not least because of the Children’s amendment to the Constitution, he said. It was not enough for the father’s side to say their views are known, the situation required “more than a one line response”.
Mr O’Higgins said the District Court had appointed an independent family therapist to report to it and it seemed the therapist concluded there was parental alienation, “orchestrated by the mother to poison the children away from their father”. The therapist considered there needs to be an uninterrupted period to have the children back with their father or a relative of his to try and undo the damage caused by parental alienation, counsel said.
It seems the mother has ongoing access to them by phone, causing ongoing psychological damage, he added.
Having heard the sides, Mr Justice Barr said he would appoint a guardian ad litem as nominated by Tusla. He was satisfied that was in the best interests of the children and the fairness of the litigation. He was “most anxious the children’s voices are heard” and appointing the guardian now would help move the process on.
He adjourned the father’s injunction application for mention early next week with a view to fixing an early hearing date.
