About this case:

• Citation:
  [2024] IEHC 614
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice John Jordan

Delivering judgment for the High Court, Mr Justice John Jordan confirmed that “the court is satisfied that a core issue is pay” and added: “It is no mystery why there is a difficulty recruiting and retaining staff for such work in circumstances where they can find much easier and rewarding work outside of that environment and very similar rates of pay.”

Background

In the context of the High Court special care list, Mr Justice Jordan observed that for some months there had been a significant difficulty in the list as the court had made special care orders upon the application of the Child and Family Agency (CFA) which had not been given effect to due to the three State special care units failing to function at full capacity, such that there is now a section in that list entitled “No Beds Cases”.

Having concluded that this situation was deteriorating and that those interested in the welfare of the children and the High Court were entitled to know precisely why this is the case and what the cause of the problem is, the High Court conducted a focused review of the situations of five children in respect of whom it made special care orders which were not given effect to.

Having conducted the reviews and having determined that it was readily apparent that each of the five children required special care, or did when the special care orders were made and current, the court heard evidence from witnesses for the CFA.

Evidence from CFA

Kate Duffy, CEO of the CFA, gave evidence that of the 26 beds available across three units in the State, only 15 of those beds were occupied.

Ms Duffy cited the recruitment and retention of staff as a major problem, with 200 staff being required across those three units. Ms Duggan described issues such as violence, harassment and aggression towards staff and absenteeism due to assaults.

Another cause of the problem was stated to be the ongoing lack of appropriate alternative placements for children requiring therapeutic care, putting additional pressure on the special care units, and the absence of suitable step-down home placements following a child’s transition out of special care.

William O’Rourke, National Service Director for children’s residential services with the CFA, described its efforts to enhance the attractiveness of employment in special care units, with 22 individual measures and initiatives having been implemented. Notwithstanding these measures, the staff turnover issues persisted.

Mr O’Rourke highlighted that the issue of pay was a factor repeatedly arising in exit interviews with social care workers for the CFA, but that the special care allowance had not been increased despite the CFA’s requests over the years, noting that both the CFA and Department of Children were acutely aware that the CFA could not fulfil its statutory duties.

Mr O’Rourke stated that special care challenges require an “interagency and whole of government approach”, particularly in response to the sexual and criminal exploitation of vulnerable children.

Mr Kevin McCarthy, secretary general for the Department of Children, gave evidence that ‘business cases’ in respect of the CFA had been submitted by the Department of Children to the Department of Public Expenditure and Reform (DPER) but were not accepted for reasons such as being ‘cost-increasing’ and the likelihood of creating a precedent for further claims in the special care and other sectors, the ‘contagion issue’.

Having been referred to the fact that in 2018 the High Court issued a written judgment referring to the staffing crisis in special care and pointing out the need for immediate resolution, Mr McCarthy was then questioned as to how seriously the Department of Children had taken the ongoing breach of High Court orders and the Supreme Court’s judgment in M McD (A Child) [2024] IESC 6 which referred to the entire legal system being based upon the rule of law and compliance with court orders.

Mr McCarthy contended that this was taken very seriously and was a “huge priority” for the Minister and for the Department of Children.

Mr David Maloney, secretary general for DPER, gave evidence that the budget of the CFA had increased from €609 million in 2014 to €1.011 billion in 2024. Mr Maloney explained that DPER refused inter alia the CFA’s third business case as the key issue was not one of pay but arose in connection with placements and safety in the workplace.

The High Court

Mr Justice Jordan was satisfied that pay is a critical issue in terms of the recruitment and retention of staff in special care units, which pay “must be sufficient to make coping with the challenges of the work worthwhile for employees. Put simply, the pay for the work must be sufficiently attractive to recruit and retain sufficient staff. The evidence is to the effect that it is not so at present.”

Finding it understandable that the government departments were concerned to protect public funds and anxious to avoid the contagion effect in terms of pay, the judge found it clear that improved pay and working conditions would assist, although recognising that there is a limit to what can be achieved in terms of working conditions given the nature of the work.

The court did not agree with the Department of Children that the ongoing breach of High Court orders by the CFA was given the priority it deserved, and found that DPER had made a decision not to sanction any pay increase for CFA staff and had “began to work backwards from there to find reasons for not sanctioning the increase”.

Noting that since the High Court’s judgment in The Child and Family Agency v T.N. [2018] IEHC 651 the situation had “deteriorated to crisis point with regrettably no resolution in sight”, Mr Justice Jordan emphasised that the CFA is now very well-funded but is constrained in terms of improving pay conditions for special care staff.

The judge pointed out that what was lost in the talk of recruitment and retention was “the harrowing daily experience of staff endeavouring to care for and support children and young people who are frequently broken, traumatised, hopeless, actively suicidal and frequently bereft for all of their young lives of the parenting, love, nurturing and support that most children have and take for granted”.

The judge continued: “It does not require any imagination or speculation to understand the demands on social workers who are professional and conscientious and working in that environment. It is no mystery why there is a difficulty recruiting and retaining staff for such work in circumstances where they can find much easier and rewarding work outside of that environment and very similar rates of pay.”

Conclusion

Finding it clear on the evidence that the CFA, DPER and the Department of Children, working together, could solve the problem if willing to do so, Mr Justice Jordan stated: “It should not be necessary to add that they ought to find and implement the solution as a matter of great urgency. The necessary action ought to have been taken long before now.”

Child and Family Agency v. D.A. & Ors [2024] IEHC 614