Marguerite Kehoe BL

The inability of the Child and Family Agency (CFA) to provide sufficient special care beds has been the subject of several High Court judgments since The Child and Family Agency v TN and Anor [2018] IEHC 651.

These proceedings were accepted by the Supreme Court as a leapfrog appeal in the context of these systemic difficulties.

What is special care?

Special care is governed by Part IVA of the Act 1991. Essentially, a special care order permits the civil detention of a minor in a special care unit for a specified amount of time to provide them with therapeutic rehabilitation and medical services, including mental health services. There are three special care units, with only 14 of the 26 beds staffed and available to receive minors in Ireland.

Background facts to M and B

‘M’ and her siblings were placed in care after their mother was incarcerated. While in care, M assaulted staff members, was hospitalised on various occasions for alcohol and drug use, and engaged in abusive relationships, culminating in Gardaí intervention. Despite, the CFA forming view being formed that M fulfilled the criteria for special care, no formal statutory determination by the CFA was made under section 23F of the Act 1991.

‘B’ frequently absconded from his care placements for several days and would consume alcohol and drugs. B was involved in a serious altercation resulting in a broken jaw and Gardaí intervention. Despite, the CFA forming the view that B fulfilled the criteria for special care, no formal statutory determination was made by the CFA under section 23F of the Act 1991.

Lack of resources

The CFA submitted that its difficulties arise from the unavailability of sufficiently qualified staff rather than a lack of funding. The CFA submitted that it is bound by public sector pay scales and terms and conditions. This lack of staffing resources meant 12 special care unit beds were empty and unused.

The Supreme Court made several important findings. First, the Supreme Court held that TD v Minister for Education [2001] 4 IR 259 did not apply to these proceedings. The Court was not being asked to direct the Executive to apply funding to special care, rather the Court was directing that the CFA use the monies already allocated to it for the benefit of the minors.

Second, the Supreme Court also held there is a presumption that the Oireachtas enact laws and the Executive applies sufficient funds to exercise those laws. Therefore, it was incumbent on the CFA to spend its allocated funding in a manner that fulfilled its obligations towards the minors.

Third, the Act 1991 does not express that the CFA’s performance of its statutory duties depended on the availability of resources. If the lack of resources is a permissible statutory reason for non-performance, it would be contrary to the fundamental constitutional principles of the 1991 Act, i.e., the best interests of the child.

Finally, the CFA relied on Brady v Cavan County Council [1991] 4 IR 99 to support the submission that it would be impossible for them to comply with any court order due to the lack of available beds. The Supreme Court distinguished this case from Brady by stating that here, the statutory obligations related to a succinct and determined cohort of society and resourcing would be equally succinct in that regard.

Does the 1991 Act confer any discretion?

Section 23F (7) directs the CFA to make a formal statutory determination that the minor requires special care when certain criteria are satisfied. These criteria revolve around the issue of whether there is reasonable cause to believe that the behaviour of the child poses a real and substantial risk of harm to his or her life, health, safety, development, or welfare. In this instance, the CFA did not make this determination, which acts as a trigger for a special care application. The Supreme Court held that once the CFA formed the view that the child required special care, a failure to fulfil any formal internal procedure cannot prevent the statutory obligations from taking effect. There was no legal basis by which the CFA could not make the determination. Therefore, the CFA does not have discretion in deciding whether to apply for a special care order once the criteria under section 23F are met.

Section 23H provides that the High Court may make a special care order once the requirements are satisfied. In both M and B, Jordan J granted the special care orders. Jordan J held that he did not have discretion but, even if he did, to use that discretion to refuse the orders based on a lack of staffed special care beds would be incorrect. Further, the evidence put before him was that the minors required special care. To use his discretion and refuse the order would fly in the face of that evidence. The Supreme Court held that the High Court does have discretion but that Jordan J was correct in his view that he could not exercise this discretion based on a lack of staffed special care beds. This discretion was described by the Supreme Court as exceptional.

Conclusion

The Supreme Court upheld Heslin J and Jordan J’s decisions. A lack of resources is not a defence to failing to fulfil the CFA’s statutory obligations. The Supreme Court held that it is assumed that the government has made available sufficient funding to enable the CFA to fulfil its statutory duties. Finally, no discretion is afforded to the CFA in the special care process once the criteria for special care are determined. The High Court does have judicial discretion to be used in exceptional circumstances that uphold the best interests of the child.

This judgment highlights the CFA’s failures to provide the most vulnerable minors in Irish society with the necessary care they require.

• Marguerite Kehoe BL is a practising barrister. This article first appeared on the Law Library website.