The High Court has dismissed an Article 40.4 application challenging the detention of a mother and the placement in care of her minor daughter during deportation proceedings, finding both measures lawful within the limits set out in its judgment.
The mother, identified in the judgment as P. O., had a deportation order made against her in 2008. The court heard that she and her daughter, identified as G. E., were to be returned to Nigeria. Gardaí entered their home at the Mosney Accommodation Centre in Co. Meath late on 26 July 2016. The judge accepted that the mother did not expressly invite the officers in, but found that the arresting officer had statutory authority to enter and arrest her, and that the other officers present were assisting in that duty. He concluded that their presence did not violate the applicants’ constitutional rights.
The daughter was not subject to arrest under the relevant immigration provision. The applicants argued that she had nevertheless been detained in practice. The judge rejected that submission, finding that she remained in her mother’s custody and under her control until she was taken into care. The mother had initially cooperated with arrangements to travel, but refused to board the flight at Dublin Airport. The court found that her decision ended that cooperation and frustrated the deportation arrangements.
When the mother was to be taken to Mountjoy Female Prison, a Garda removed the daughter under section 12 of the Child Care Act 1991, citing the immediate risk to her welfare because no one was available to care for her. Tusla took her into care. A District Court emergency care order was made on 29 July, followed by an interim care order on 4 August. The mother consented to her daughter remaining in care on the same terms while the High Court inquiry continued.
The applicants challenged the care orders and argued that the childcare process had been used to facilitate deportation. The High Court accepted the explanation for the District Court procedure, found the care orders had been made within jurisdiction, and concluded that the placement in care was lawful insofar as it could be regarded as detention. It also found the mother’s arrest and detention proportionate and lawful in the circumstances.
The court did not decide that the daughter had been arrested: it found she had not been detained before being taken into care. It ruled that the mother’s detention was lawful and dismissed the application.