Wednesday, 23. July 2014
23. 01. 13. - 18:00
By Matthias Loinig
A high profile legal case involving the custody of a sick child has taken a spectacular turn after it emerged that there were irregularities in the expert witness accounts which lead to the child being removed from the father’s care.
Due to an expert witness account Ines was taken from her father's custody and handed to the mother. Now the grandmother is suing for compensation as a result of the inconsistent report and its consequences.
Austria's justice system had already been underfire earlier this year for the way they forced their way into a man's home and confiscated his seriously ill daughter after deciding her disabled mother should have custody based on this single expert report.
The expert witness involved in the case Frau Dr. Eva S. and who was responsible for the report was questioned by senior expert witness Prof. Dr. Gerhard K about her methodology whilst creating the expert report which the decision to remove the child from the father’s care was based upon.
As a result of the questioning it has now been alleged that there were irregularities and it is claimed that minimal requirements with regards to creating experts reports for court proceedings were not met meaning the child was removed from her father’s care based on a substandard report.
It was established that even the basic standards were not adhered too - her findings were neither recorded on tape or documented or recorded in any references.
Prof Dr K. claimed that this revealed that many vital points were not clear in the report and there were irregularities.
The original expert witness had claimed that she had been able to communicate normally with the child’s mother without mentioning the mother is deaf. She also said it was not important to her whether the mother understands the questions as it is her who is the representative.
It was also unclear why the expert only included the mother in the report and not the child’s closest carers such as the father and the grandmother in the report.
Even though the father and grandmother had played a large role in the child's care they had not been included in the report.
Dr. Eva S. said however: "In the instruction to carry out the expert report it was clear that I should only asses the mother’s capability to look after the child"
She went on to say that in a telephone conversation with judge Mag.Monika L.-H. they just said when referring to the father "he doesn't matter".
Allegedly the judge meant to say that the father has no chance of receiving custody by default.
The judge will be questioned about these allegations at a later stage.
The case now has to be assessed to examine on what basis the mother was given custody.
Senior expert Prof. Dr. K. is now carrying out an investigation to check the report and he will produce a written report based on his evidence.
The Austrian Times understands that Ines, who was born in Austria in December 2008, is suffering from congenital heart disease and her health is dependent on the proven track record of care she was given by her father.
Her disease is the most common type of birth defect and causes more deaths in the first year of life than any other birth defect.
In some cases congenital heart diseases can be treated with medication alone, but others need to be treated with one or more heart surgeries.
In Ines' case, the disease was very serious and could not be treated with medication alone. She needed and still needs close care and attention.
Both of Ines' parents were unskilled workers and although they were deaf they could care for themselves and lead normal lives. However, they would both need help in caring for Ines because the supply and administration of medicine as well as communication with doctors was very important for their daughter. In this respect their disability could cause problems and as a translator for sign language, the mother of Ines' father was a great help in Ines' treatment.
In October 2009, when she was nearly one year old, Ines’ parents separated and Ines was left with her father. At first, Ines' parents agreed to joint custody and from the day she left Ines with her father until 15 May 2012, Ines' mother only saw her once a month under supervision. Ines' father continued to care for Ines and oversaw her medical treatment.
In 2012 Ines' mother filed for custody of her daughter despite having seen her for no longer than 5 hours and having had very little experience of caring for her or providing her with any of the necessary medical care.
Throughout the custody battle between Ines’ parents, several witnesses reported that it was clear her mother was unable to cope with Ines and her special needs. Also, a witness from the mother's side said that in his opinion the father provided all the care for Ines whereas he felt there was an unemotional relationship between Ines and her mother. The father's family has speculated that the only reason Ines' mother applied for custody was because her family had pressured her into doing so.
When some witnesses testified that the mother was violent towards her child, her visitation rights as a mother had been restricted.
An expert witness was then consulted in order to determine whether it would be in the best interest of the child to transfer custody from the father to the mother. The expert witness studied the contact between Ines and her mother for half an hour and came to the conclusion that the transferral of custody should be granted.
The expert witness acknowledged neither the child’s close relationship to her father nor the consequences that the transferral of custody may have on the critically ill child.
Neither the father nor the grandmother was included in the expert witness analysis, although the court file stated that they were the family members to whom the child related most closely.
On the basis of the analysis, the judge decided that Ines should be with her mother.
All of the child’s doctors – her cardiologist in particular – raised concerns that the child’s health could be at risk if she had to leave her familiar surroundings.
On 5 May 2012 the child’s psychologist alerted the Youth Welfare Office, as well as the court.
In regard to a further pending heart operation for Ines, the psychologist stated that it would be in the child’s best interest for her father, with whom she shared a strong connection, to be admitted to hospital with her. The psychologist feared that the child could otherwise suffer from anxiety, panic attacks, shiftlessness and developmental delay. However, the concerns of the psychologist did nothing to sway the decision of the court.
On 15 May 2012 the Executive Authority appeared in front of the father’s house, entered the property with the help of a locksmith and took Ines from her father.
Immediately after the child was removed, she was taken to the hospital near Linz where the pending heart operation then took place. Her father was not allowed to see his daughter during her stay in hospital.
Following her release from hospital, Ines was not allowed to go home to her father but had to move to different surroundings where she would be without him. The father was not allowed to see his daughter until 2 months later - their meeting was for one hour under supervision.
On 3 August 2012 the first court hearing took place. The judge made clear that the child’s father should be allowed access to his daughter for one hour per week under supervision in case he were to try to kidnap her. If he did not accept the judge’s offer he would have no right to visit his daughter.
In June 2012, the father requested that Ines underwent a psychological examination because of trauma which may have been caused by her removal from his care. In addition he applied for temporary custody as he felt that his daughter was in imminent danger and he also requested the right to unattended visitation, arguing that his lack of contact with his daughter was not in her best interest.
Since June, nothing has happened.
Although the father originally filed the application in Zistersdorf, the court which had previously dealt with the case remained in control because the judge of this court was deemed as having a better knowledge about the case. However, this judge then moved to Krems, which in turn made the court in Zistersdorf competent once more. Nevertheless, this court will close on 31 January 2013 due to a restructuring of the courts in Lower Austria and the further fate of this court file remains uncertain.
Under the old judge, the father requested to put on record that he was forced to accept the offered visitation right (one hour per week under supervision) because he would not be granted access to his daughter otherwise. In this instance, the old judge recorded: "The father’s and the grandmother’s numerous requests could be seen as an attempt to "colour" the protocol in their favour."
By doing this the judge could well have influenced the attitude of the next judge to pick up the court file.
While time was lost in the disputes between the two courts, Ines’ mother was able to cut all contact
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