About this case:

• Citation:
  [2024] IESC 6
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Gerard Hogan

Delivering judgment for the Supreme Court, Mr Justice Gerard Hogan emphasised: “A statutory agency such as the CFA is bound to uphold the Constitution and the law. It is not entitled to take it upon itself — even for the best of motives — to disregard that which the Oireachtas has prescribed as mandatory.”

Background

M, a vulnerable teenager, was subjected to physical, sexual and emotional abuse and neglect throughout her life. Complaints about her behaviour at her residential placement, including stealing, attempted arson, drug and alcohol use, resulted in her guardian ad litem suggesting that serious consideration be given to a special care placement.

A family welfare conference was convened on 14 July 2023 as required by s.23F(5) of the Child Care Act 1991 (as amended), in the course of which her family supported the CFA’s decision to make an application for a special care order.

B, also a vulnerable teenager, was diagnosed with oppositional defiant disorder, language difficulties and autism. B often left his mother’s home and his placements, leading to the granting of several care orders. On 20 July 2023, a family welfare conference was held, concluding that B required special care and protection due to his worsening behaviour, including intoxication, violence and drug-dealing. Again, it was recommended that an application be made for a special care order.

No determination having been made by the CFA as to whether M or B required special care, and consequently, no application having been made to the High Court for a special care order, judicial review proceedings were initiated seeking to compel the CFA to discharge its statutory duties.

The High Court

The CFA acknowledged that it was in breach of its statutory obligations to make a determination in respect of the children and to apply to the High Court for a special care order, but was strongly opposed to the granting of any mandatory orders which would force it to comply with those obligations as it could not recruit and retain staff at present pay levels.

Mr Justice Mark Heslin granted mandatory orders directing the CFA to apply to the High Court for a special care order in respect of M and B.

Mr Justice John Jordan subsequently granted the special care orders pursuant to s.23H of the 1991 Act, despite the CFA’s submission that it had no capacity to accommodate the two children. The judge stated that in light of the evidence and in the context of the welfare considerations in childcare proceedings, the word “may” in s.23H must mean “shall”.

The CFA appealed unsuccessfully to the Court of Appeal and sought a stay on the order of Mr Justice Jordan in respect of child B.

Leave to appeal to the Supreme Court was granted, in respect of whether the CFA was justified in failing to apply for a special care order in respect of M and B in the first instance and having been ordered to do so, whether the High Court was justified in making an order providing for their special care under s. 23H even where no immediate place was available due to staff shortages, and whether the court should refuse to make orders obliging a statutory agency to perform its functions where it contends that it will experience real difficulties in doing so by reason of the lack of resources.

The Supreme Court

Mr Justice Hogan set out inter alia s.23H of the 1991 Act, which provides inter alia that the High Court may make a special care order where the behaviour of a child over the age of 11 years poses a real and substantial risk of harm to their life, health, safety, development or welfare and where for the purpose of protecting them, their best interests require them to be detained in a special care unit.

Turning to whether the High Court should have granted the orders of mandamus directing the CFA to apply to the High Court for special care orders, the court considered that “s. 23F(7) provides that where ‘the Child and Family Agency is satisfied that there is reasonable cause to believe that the child requires special care it shall make a determination as to whether the child requires special care.’ …As a human tragedy played out right in front of their eyes over the summer of 2023, the CFA prevaricated and failed to perform its statutory duty. It ought to have made the determination necessarily envisaged in those circumstances by s. 23F(7) and its failure to do so can only be described as inexcusable.”

Mr Justice Hogan continued: “Of course, once the CFA had made such a determination, it was then obliged by the complementary provisions of s. 23F(8) to make an application to the High Court for a special care order. Faced with what can only be described as a studied failure to apply the relevant statutory provisions, in my view Heslin J. was perfectly correct in making the requisite order of mandamus…A statutory agency such as the CFA is bound to uphold the Constitution and the law. It is not entitled to take it upon itself — even for the best of motives — to disregard that which the Oireachtas has prescribed as mandatory.”

Dismissing the CFA’s appeal in respect of the orders of Mr Justice Heslin, the Supreme Court then proceeded to consider the appeal of Mr Justice Jordan’s orders.

Noting that the proper construction of s.23H(1) itself was the first issue, Mr Justice Hogan observed: “It provides that where the High Court is ‘satisfied’ that eight enumerated criteria have been complied with, it ‘may’ then make an order providing for the detention of the children for the purposes of a special care order. The eight criteria themselves all relate to the welfare of the child itself and these conditions are not expressed to be resource dependent.”

In respect of the word “may” in s.23H(1), the judge opined that “s. 23H(1)(h) requires the High Court to be satisfied that the making of such an order is in the best interests of the child in question — thereby giving force and reality to the constitutional injunction contained in Article 42A.4.1⁰ — the circumstances in which the High Court could properly decline to make such an order where these eight enumerated conditions are satisfied would have to be exceptional.”

Turning to the “critical question’ of whether the CFA’s lack of resources constituted ‘exceptional’ circumstances, Mr Justice Hogan said “if the courts were to allow statutory obligations to fall fallow on this ground, it would immediately raise separation of powers and rule of law issues”.

Recognising that the Taoiseach supplied a money message in respect of the legislation and that the Minister for Children and Youth Affairs signed a commencement order in December 2017 in respect of the amendments to the 1991 Act, the court confirmed that these acts were an implicit promise by the executive that the requisite funding would be made available.

The court reasoned that as the 1991 Act (as amended) had been commenced by the Minister, “it becomes the duty of the judicial branch to see that it is appropriately enforced in accordance with ordinary democratic norms and general rule of law principles”.

Upholding the orders of Mr Justice Jordan, the Supreme Court reiterated that if legislation proves too onerous or costly, the solution “lies in either amending or even repealing the legislation in question”.

Conclusion

Accordingly, the Supreme Court dismissed the CFA’s appeals.

In the matter of M Mc D, A Child & Anor [2024] IESC 6