The CEO of the Child and Family Agency (CFA) sent an affidavit to the Dublin District Court in response to a request from the court a week earlier to attend in order to explain why a boy for whom a special care order had been made had not been admitted to special care. He was now missing in care.
The solicitor for the boy’s parents said that he wanted time to consider his response to the CEO’s affidavit. He said that the CEO had set out the systematic process of how the special care system operated but had not addressed the issues of why this teenage boy had not been admitted to special care.
He said that because there were no special care beds available the CFA had devised what they have called special emergency arrangements (SEAs). The solicitor said these SEAs were unregistered, unregulated and in the words of the CEO of the CFA in her affidavit “less than optimal”. He said if the CFA were unwilling to stand over the SEAs, why should the court. These SEAs were costing a fortune and there was no quality assurance. The CFA was not fulfilling their statutory obligation.
He said that everyone, the parents, the GAL, and the CFA all agreed this teenager needed to be in special care, but he was not. The court needed assurance that these SEAs were monitored and in the absence of regulation and registration needed oversight by the court.
The solicitor for the CFA said the CFA were fulfilling their obligations and statutory duty. She said that there were standard operating procedures for the SEAs.
The judge said the court required the following with regards to this teenage boy: Confirmation of the SEA for this boy, who were the staff and what were their qualifications; if they were agency staff what agency was being used and who approved that agency; the approved list of care providers; copies of the service provider agreement and copies of the standard operating procedures of SEAs; how the SEA’s were audited and a copy of the schedule of the national audit team.
The judge also said the court required in writing from the Chief Regional Officer (CRO) the relevant management plans and care plans for this teenage boy.
Evidence from the social worker
The social worker said a new placement had been arranged for the boy but that the boy was currently missing in care. She said that she had spoken with the boy’s father, but he had not heard from him. An Garda Síochána had been informed the teenage boy was missing. She said the staff had been trying to engage the boy and had been trying to contact and locate him. The interim care order was still necessary and was keeping him safe.
Under cross-examination by the solicitor for the parents the social worker said that the new placement was a new SEA but the boy had not yet stayed one night in it. The solicitor for the parents said that the boy’s basic needs were not being met given that he was missing in care.
Evidence of the guardian ad litem
The guardian ad litem (GAL) said this boy was not a lost cause if he had the correct placement. The boy was being failed because of a lack of an appropriate placement. He was being picked up daily by An Garda Síochána.
She said that consideration had to be given to a placement outside of the jurisdiction. She said that the boy was still the subject of a special care order but there was no special care bed. The GAL said the boy wanted to go to special care. He moved from the previous placement which was an SEA to a new placement, another SEA. His new SEA was only being inspected today, the day of the court hearing. The GAL sked: “How does that comply with the CFA’s own standard operating procedures, when they are supposed to inspect SEA’s before they open?” The GAL said no reassurance was being offered.
The judge’s comments.
The judge said he was at a loss for words. One SEA was suspended, another was set up and had not been inspected. He said there was a special care order, but no bed was available. This situation had huge risks.
He noted the social worker was doing her best in the circumstances. He said the court was being asked to extend an interim care order to keep this boy safe but was he safe. He said that he would extend the interim care for one week only and wanted supplemental affidavits from the CEO as to why the CFA’s own standard operating procedures were not being followed.
Hearing one week later
When the case returned to court one week later, the interim care order was later extended. The teenager was still in an unregulated and unapproved emergency placement and regularly absconded from the placement.
The judge had summoned the Chief Executive Officer (CEO) of the CFA to court to explain why there was no placement for the teenager, however, the CEO was later permitted to provide her response in an affidavit. The judge said that the affidavit was very detailed, and he would have to review it further.
The solicitor for the CFA said that due to no special care beds being available the CFA were using special emergency arrangements (SEA) which are not regulated because they are not registered, but the aim is to make them as consistent as possible. She said that the CFA would have to use them for the foreseeable future or until the crisis that the CFA finds itself in is alleviated in some way. She agreed that the special emergency accommodations are less than perfect but said that it was out of the CFA’s control.
The judge said that he was concerned about the use of unregistered placements. He referred to the last paragraph of the CEO’s affidavit where the CEO said that she is “aware that the service is less than optimal, we are aware of that crisis daily, but to be fair, that is a matter for the agency and not a matter for the court.” The judge said that the use of the accommodation that the CEO refers to as less than optimal, it is actually inappropriate. He then referred to an Irish Times article, Tusla unwilling to ‘stand over’ children in unregulated accommodation: Demand on child and family agency services has doubled in past 10 years – Irish Times, 6th February 2024, and said that if those comments are incorrect then the agency should correct them.
The solicitor for the guardian ad litem (GAL) said that the GAL supported the application as it was the GAL’s view that the best place for the teenager was in special care. The solicitor said that he also had two observations to make. The first was that the CEO of the CFA was on the radio that morning and could have clarified the CFA’s position in respect of special emergency accommodation. The second is that if the CFA is in breach of their statutory duty, then they should have addressed that.
The social worker said that the teenager came into foster care approximately one year ago, but he was known to the agency since he was a baby. She said that the special care order was made but there were no placements available. The teenager had been housed in a residential unit where the staff checked on him every hour by sending him text messages and keeping in contact with the teenager’s father and the Gardaí if he went missing, however he was now in an unregulated SEA placement where the staff are not actually caring for or managing the teenager.
The accommodation is a house managed by a private provider with two staff on duty per each 12-hour shift. The social worker could not confirm if the SEA staff were Garda vetted. She said that the teenager sometimes responded to texts but other times he would not. The teenager had been arrested for theft and once he had jumped out of the social worker’s car window when she had collected him after he had gone missing. The social worker was very concerned and said that the teenager’s pattern of going missing had started before the teenager went into care. The teenager had initially been taken into care on a voluntary basis as his parents struggled with his behaviour.
Judge: “Since he has been in care he has been absconding and dealing with drugs. Do you accept that the risk to him is at the extreme level?”
Social worker: “Yes, judge.”
The social worker said that the teenager had absconded from the SEA and a special arrangement meeting document indicated that the staff of the SEA may not have been aware of when the teenager returned. The GAL had contacted the unit and was told that staff on shift were not aware of when the teenager returned to the unit. The judge asked the social worker if that surprised her and she responded that it did.
The judge said that the case was very complex. He said that the special care committee considered that the teenager’s referral met the criteria for special care and an order for special care was granted by the High Court, but the teenager was not in special care because there were no beds available.
Judge: “So, we have a child that has serious needs, he should be in special care, one of the more serious orders to be made in the state as it restricts their liberty. They deem him to be at risk, but he cannot be in special care because there are no beds, is that the position?”
CFA Solicitor: “Yes judge.”
The GAL said that everyone involved in the case accepted that the situation was untenable. The teenager was at risk on a daily basis. The teenager was going missing regularly and was picking up criminal charges. There were systemic issues with the placement. The GAL said that she made a call to the house to find out when the teenager had returned, but the staff could not tell her.
On another occasion when the teenager had returned after having gone missing there was no food in the refrigerator for him. The GAL had to bring him out to get him something to eat. The teenager had said that he would like a carvery dinner, but he was told by the staff at the SEA that he was only entitled to two rolls and a takeaway once a week, even though he had been missing for two weeks. The manager of the SEA had to step in and overrule the employees and said that the teenager could have a carvery every night if he wanted.
The GAL said that she had asked the SEA staff whether they had social care experience, social care education, garda vetting or experience working with young people. She said that in a regulated placement the staff would have the proper qualifications and it was her view that the teenager should be in special care as the level of risk to him was “off the scales”. In special care he would be contained and detained. She said that when the teenager was living at home, he was able to maintain some sort of relationship with his family, but since he has been in care those relationships have broken down.
The GAL said: “A qualified yes that I support the extension of the interim care order. What are the other options? The [teenager] does not want to go to special care, he said that he would try to escape. He is a lovely young lad, and with the right placement we could help turn his trajectory. He now has a criminal record and there is possible child sexual exploitation.”
On the next date the CFA solicitor said that the social work team was trying very hard to engage with the teenager.
The father’s solicitor said that there were ongoing concerns regarding the SEA’s compliance with operating procedures. He said that the SEA had been operating for approximately six months and the CFA confirmed that the SEA complied with standards, however they were not real standards. He said that the standards the CFA referred to were a veneer designed to make something that should not be in place look respectable.
The judge said that the court was not in a position to micromanage the SEAs but he would do so given that the teenager was clearly in a place that was not suitable. He said that given the CFA intended to continue using the special emergency arrangements, then they should have inspections and ensure that the staff were Garda vetted. The court wanted to ensure that what was set out on affidavit was actually being followed.
The solicitor for the CFA said that given the unprecedented crisis it was clear that the CFA had to rely on the SEA placements for now. All the professionals were trying to do their best.
The social worker said that since the last date the teenager only stayed in the SEA for a short period of time. He went to the SEA, stayed for an hour, left, then returned. He had been arrested for theft and assault and was being detained in a children’s detention facility. The social worker visited the teenager in detention and the teenager told her that he would like to remain in the detention facility to try and get the help that he needed so that he can return to his family.
The GAL said that the detention was benefitting the teenager. She said that he looked well, he was sleeping and eating well, and he was engaging with educational services, but unfortunately there were no therapeutic services available to him in the detention centre. She said that the teenager was involved in an altercation at the detention centre and had to be brought to the criminal courts. The teenager’s family visited him, but they were exasperated.
She said that the circumstances of the teenager not being in secure care was criminal. Regardless of the placement, he was not in a place that is sufficient to meet his needs. She said that the CFA was not meeting its obligations and as a result the teenager will end up with more criminal charges.
The judge said that the accumulation of what had happened over the past few weeks was that the teenager has ended up in a children’s detention centre. It was unclear as to when a placement for him in secure care in the UK would be available.
The judge asked the GAL if, given that the teenager had engaged in criminality and there was possible child exploitation, would the teenager move up the ranks of priority for a secure care bed. The GAL said that the possibility of child exploitation came initially from the SEA workers and was reported to the Gardaí. The risk to the teenager was lessened to a degree while he was in the detention centre. Once he was released he will return to the SEA, so it might appear that there is less risk to him while he is detained.
The judge extended the ICO for one week only as the issue of secure care was before the High Court that week.
Subsequent hearing
On the next date the court heard that a secure care bed had become available. The solicitors for the father and the GAL made an application to direct that the teenager not be informed of the secure care bed in advance of the High Court hearing on the next day as he was considered a flight risk. The judge noted the solicitor’s concerns and directed that the teenager not be informed that a secure care placement was available for him.
It was also noted that Tusla therapy services did not provide assessments for children housed in SEA arrangements. The solicitor for the CFA said that there was no policy that excluded children housed in SEAs to be assessed.
The court extended the ICO for a further 28 days and requested that the Chief Regional Officer of the CFA explain in writing whether there is a policy to not provide assessments to children being housed in SEA arrangements.
