The District Court heard an application over six days, seeking urgent directions as to the availability of a short-term private residential placement, and thereafter an inpatient bed in a psychiatric unit, for a teenage boy, who the court was told was suffering from “significant and immediate” mental health concerns. These concerns had given rise to 37 incidents known to Gardai, including what they deemed “a hostage and/or suicide incident,” when he threatened his parents with knives, and spoke of killing himself.
The parents’ barrister brought an application under section 47 of the Child Care Act, 1991 and also summonsed the HSE to the court to answer questions on the timing of assessments and availability of a bed.
The parents’ barrister said a secure care placement had originally been considered, but the parents felt that a private placement was more suitable to the teenager’s needs, as he was “very vulnerable.” He said the Child and Family Agency (CFA), was currently only offering the boy a bed in emergency accommodation for homeless children. He said the boy had already spent a week in this hostel, and that it was “not at all appropriate.” He said the boy was currently back home with his parents, but given the scale of his needs, an urgent private placement was required.
The CFA solicitor said there was a bed immediately available in the hostel, and another short-term placement had been identified. She said they had received a report from a consultant psychiatrist with the Child and Adolescent Mental Health Service, which referred the boy for inpatient assessment, but did not consider him to be an “immediate risk.”
The solicitor said that a “wrap-around service” was being provided for the teenager while he was at home in voluntary care, which involved “significant co-ordination and supervision by An Garda Siochana.”
The solicitor for the guardian ad litem (GAL) said the GAL was of the view the CFA needed to “trigger a referral to the private placement committee to establish what resources were available in this particular case in order to meet [the boy’s] needs.” He said the GAL did not consider the emergency accommodation being offered to him was suitable.
The parents’ barrister said there was a number of “serious incidents” involving the teenager and that a member of An Garda Siochana was present to give evidence in that regard.
Garda evidence
The Garda told the court that there had been 37 incidents involving the boy from 2019 onwards. He recalled a particular recent incident, when An Garda Siochana had reason to deal with the boy under section 12 of the Mental Health Act, 2001. He said his colleague brought the teenager to hospital where he was left in the care of the Health Service Executive (HSE), in a private room under supervision, but that a report subsequently came in that the boy had left the hospital and made his way back to Dublin, where he contacted his family to collect him.
The witness recounted a further recent and serious incident involving the teenager which had ultimately led to the application before the court. He said: “On the night in question, Gardai were called to attend an incident following a report of a male armed with knives at his family home. [The boy’s] father had put in the call and said that his son had two large knives and was threatening him and his wife. He said that he would harm either the Gardai or himself if the Gardai came to the house.”
The witness said the situation was declared “a hostage and/or suicide incident.” He said that members of the Armed Garda Support Unit, as well as two trained Garda hostage negotiators, attended the scene, but the mother and father had left the house at this point. He said that one of the hostage negotiators entered the home through the rear door, “where they discovered the teenager with self-inflicted wounds to his arms and face.” He said that after a lengthy conversation with the boy, he allowed medical personnel to provide him with treatment, after which he was detained under section 12 of the Mental Health Act, 2001.
The witness said that a doctor attended the teenager while he was in Garda custody, who advised the Gardai that his detention was unnecessary, so he was released. He said the teenager’s parents did not want him to return home that night, so a bed was sourced for him in an emergency hostel.
The witness recounted a further incident a few days later, when An Garda Siochana received a call from the teenager’s GP, where the teenager was attending with a support worker, saying that the boy had “threatened to commit suicide and was going to do it that night.” The witness said the Gardai attended the GP’s surgery and the boy was escorted to hospital for assessment.
Mother’s evidence
The boy’s mother gave evidence that her son had been back at home for a number of days, as the hostel where he had been placed following the recent incident, was “not at all suitable.” She said her son was “not safe” there, and was “afraid of these types of places.” She said he had been placed in very inappropriate situations by other people in the accommodation, who had offered him drugs and asked him to hold drugs for others.
She said the last few nights at home had been “okay.” She said her son was taking his medication, but was finding it difficult to sleep. She said that both she and her husband were “on edge, particularly at night.” She said her son was coming into their room to sleep beside them, but that he was very restless. She said although he was somewhat calmer recently, “there was no telling what could trigger him.”
She said that An Garda Siochana had been visiting the home in the late evening and night-time to carry out welfare checks on her son, which was “a great relief” for them. She said the Gardai who attended were very nice and her son was very happy to see them. She said she hoped a short-term private placement could be identified as soon as possible for her son, until he was admitted for inpatient assessment with the HSE.
Social worker’s evidence
The social worker gave evidence that the teenager had been known to the CFA since 2014. She said that psychiatric assessments had been carried out in 2014, and again in 2017, and that he had been attending a child and adolescent mental health service for a number of years. She said he was assessed by a consultant psychiatrist following recent events, “who did not consider him to be actively suicidal, or suffering from psychosis, but did make a referral for inpatient assessment.” She said that so far they had not been able to source an appropriate unit for him.
The witness said the boy had been placed in emergency accommodation after the events in February, but the staff there reported that although he was “a delightful young man,” he was engaging in alcohol and drug use when he left the hostel and that he would return later in the evening “under the influence.”
Judge: “Do you consider [the hostel] is appropriate to his needs right now?”
Witness: “Yes. I know there are concerns about others there who are homeless, but the facility is obliged to abide by Tusla protocols and there is good communication with us. I think the service is satisfactory in terms of what they can offer him right now…”
She said a collective risk assessment was being carried out in respect of a further placement, where it was envisaged the boy could be placed in the short-term.
The witness was cross-examined by the barrister for the parents, who queried the nature of the supports which had been made available to the family. The barrister asked why there had been only a support worker present in the hospital when the boy had absconded. The witness said there were “no child protection concerns,” so community supports were deemed adequate in the circumstances.
Parents’ barrister: “But where parents are unable to care for a child, do you not consider this to be a child protection concern?”
Witness: “There are no concerns in relation to the actual care of [the boy]. The category relates to child welfare, more so than child protection.”
The witness agreed the teenager’s GP had assessed him as being “actively suicidal,” but that a subsequent referral to a consultant psychiatrist had determined that he was not an immediate suicide risk.
The GAL’s solicitor asked the witness whether the better short-term proposition was to place the teenager within the private residential sphere. The witness said she was “required to follow CFA protocol” and could not progress to looking at a private placement until all risk assessments had been carried out in relation to the other CFA placements which had been identified.
GAL’s evidence
The GAL gave evidence that she had only been appointed by the court the previous day. She said she had reviewed the paperwork and had a lengthy Zoom call with the parents and the teenager. She said the boy was “a charming and articulate young man,” who had a “certain degree of insight” into his issues. She said he was aware that he was “not well” and that he “wants to get better.”
She said: “He is a gentle boy, with a warmth about him, which probably makes him a vulnerable target. He wants his drug and alcohol use to stop, he fears that if it doesn’t stop, he is not going to survive. He is clear that he is drawn to alcohol and drugs to stop whatever is going on inside his head. He says he is frightened by what happens when he drinks, he knows he blacks out and becomes violent, but has no memory of it.”
She said the hostel where the teenager had been placed originally was “completely unsuitable for his needs.” She said although the staff there were “smashing,” the residents all had their own significant issues. She said it was “right in the hub of inner city homeless accommodation,” and that it “smacks of a homeless hostel.” She said it was “a dangerous place to be in care, particularly in [the boy’s] circumstances, as he was not a street-smart kid.”
GAL solicitor: “Do you believe that if placed there, his welfare would be compromised?”
Witness: “Undoubtedly.”
GAL solicitor: “What about the other short-term placement identified by the CFA?”
Witness: “It’s another inner city placement, a long established boys home. It has the same profile as [the hostel], albeit it is not emergency accommodation. I don’t have any optimism that placing him there would keep him safe or meet his needs.”
The witness said a private placement was the preferable option. She asked the court to consider “by-passing Tusla protocol” to make a direction for a private placement identification. She said the CFA was “inhibiting itself” by being forced to abide by its protocol, which was not in the boy’s best interests.
The witness said that in addition, “the area manager for the HSE should be mobilised.” She said the boy’s mental health was an immediate concern, and that a court direction for the area manager’s attendance could assist the advancement of an inpatient bed in a suitable unit for the teenager.
The parents’ barrister asked the GAL whether it was appropriate that the teenager was at home currently. She said the wrap-around service was helpful, but it could not be sustained for a long period of time, given the significant amount of “round the clock support” which was required for the family while the boy was at home. She said it was only a “stop-gap” pending the identification of a suitable placement.
Parents’ barrister: “What do you say about the social worker’s interpretation of child protection risk?”
Witness: “Child protection risk can come from the child himself. I don’t attach the same weight to the intention of the parents which the social worker seems to.”
Judge’s direction
The judge said he had to consider how to “stitch all of this together.” He said he did not want to “discommode anyone, but there are times when the court has to make orders and decisions which may do just that, and this is what must be done.”
The judge directed that the CFA meet the following day “to explore the emergency private placement, as well as an alternative and sustained wrap-around plan for [the boy].” He said it was important to have an idea of what was going to happen with the referral for an in-patient bed with the HSE, “as this will inform other issues in terms of his placement.”
He listed the matter for mention two days later, in order to address the issue of the HSE witness possibly attending court. The judge did not make a direction in this regard, as he said he was unsure of his jurisdiction to do so, given the HSE was not a party to the proceedings.
When the matter came back before the court, the CFA solicitor said that the private placement committee had met and identified a possible short-term option outside of Dublin, and that a risk assessment was currently being undertaken to ascertain whether it was suitable for the teenager. She said the boy remained at home with his parents and the wrap-around service was currently functioning and was “quite extensive.”
She said she understood a witness summons had issued in respect of the director of community operations for the HSE, but they were unaware of what particular questions the director was required to answer. She said the CFA was actively working with the HSE to identify further supports for the teenager.
The solicitor for the parents confirmed that he was in the process of putting together a number of queries for the director in order to make progress in the matter and to avoid this person being required to attend court. He said he had “a responsibility to the parents to make progress towards securing an inpatient bed as soon as possible.” He said the parents were not happy with the most recent placement identified by the CFA, as it still did not meet their son’s needs.
The GAL solicitor said that although the GAL had “no strong objection to the new placement identified,” she considered it “sub-optimal.” The solicitor said the biggest issue was that the teenager needed a full psychiatric assessment, but the psychiatrist had determined that he was not in need of urgent assessment, and therefore he could be waiting a long time for an inpatient bed.
The solicitor said: “What can only be assumed is that there is a whole cohort of children ahead of [the teenager], who are also waiting for inpatient psychiatric assessment, and we would be asking the court to direct that [the teenager] is assessed ahead of these children… I’m not sure of the court’s jurisdiction in that regard.”
The CFA solicitor said that she had just received information which outlined that the teenager had not passed the risk assessment for the new placement which had been identified. She said they now needed to look at the options again. She said she had been advised that a legal representative for the HSE was available to attend court the following day in order to address the question of the in-patient assessment.
The judge said he was going to adjourn the section 47 application until then.
When the matter came back before the court the next day, a solicitor representing the HSE was in attendance. She told the court that as her client was not a party to the proceedings,
she was applying to have the witness summons struck out. She said the HSE would give a “firm commitment” to the court that it would engage fully in the process, so there was “no need” to seek the director’s attendance in those circumstances. She said the HSE had only received the list of queries from the parents’ lawyers the previous night, but had put together replies, which she handed into court.
The HSE solicitor said she had spoken with the consultant psychiatrist in the child and adolescent mental health service, as well as the executive clinical director, and had been assured that there was “absolutely no immediate concerns” about the teenager, and that “all normal procedures” were being followed. She said that as an additional measure, another appointment had been arranged with the consultant psychiatrist to see if there was any change in his view.
The CFA solicitor said that a referral had been made to a further adolescent inpatient unit, but it was not known if a bed was available there as of yet. She said the private placement committee was still working towards trying to find the teenager a suitable short-term placement while a bed was awaited.
The parents’ barrister said that although the HSE had provided replies to the queries raised, it was of concern that they would be leaving today “without any knowledge as to a time frame for when the HSE will be in a position to assess [the boy’s] case and make decisions on his care plan.”
The judge said that in circumstances where the HSE had given its commitment to the court that it would engage fully with the proceedings, “at this point everything that can be done is being done.” The judge withdrew the witness summons and adjourned the section 47 application to the following week.
When the matter came back before the court, the HSE solicitor said the teenager had undergone screening for a particular adolescent inpatient unit, and the report was “imminent.” She said it was hoped the report would confirm that the boy met the threshold for inpatient assessment.
The parents’ barrister said there was “an obligation on the HSE to find the teenager an institution which could take him, if this particular one refused to do so.” The barrister said the parents were also eager for the boy to undergo an Autism Spectrum Disorders (ASD) assessment, in parallel with the other mental health assessments, and that this was outstanding.
The HSE solicitor said the teenager’s drug and alcohol misuse issues needed to be addressed before any other disability assessments could be carried out. The barrister for the parents confirmed that the boy was “fully willing to engage with counselling” in this regard, but that the relationship with the previous counsellor had broken down. He said the parents were actively looking for another counsellor.
The matter was adjourned to the following week for further update.
When it resumed the barrister for the parents provided an update to the court that an Inpatient child and adolescent mental health unit was due to carry out an assessment as to whether the young person should be admitted as an inpatient, but the unit had not yet provided a timeline for the assessment. The court was told that a multi-disciplinary meeting had taken place the previous day and it was understood that the Unit had expressed the view that the boy did not meet the criteria for acute admission to the inpatient unit.
The barrister said that an autistic spectrum disorder assessment was also scheduled but was unable to take place until later the following month. The court was told that the parents had issued correspondence to the social work team in respect of a number of issues and the proposed timeline for the assessments. The barrister said that one of the issues raised with the social worker was the issue of counselling but no response had been received and he said that his clients were “in the dark as to the situation”.
He told the court that his instructing solicitor wrote to the social work team again indicating that if no response was received to the issues raised in the correspondence he was instructed to issue an application pursuant to section 47 of the Child Care Act 1991 seeking to join the HSE to the proceedings, and for a direction from the court for the admission of the boy to the inpatient unit for an assessment.
The barrister told the court that the parents had “sought to do this collaboratively” as the teenager had been identified as a child requiring an inpatient assessment but that he “did not meet the acute criteria”.
Parents’ barrister: “We take from that that there is no bed available but I can’t speak to that as we are not receiving responses in relation to our correspondence.”
The barrister said that the mother had wanted to outline the position to the court in evidence as she was concerned that “a rosier picture was being painted for the court in respect of the urgency” of the situation and it was not her experience of everyday life with her son. He said that the mother was very appreciative of the supports that had been provided by the CFA and they had made a difference but “the urgency still attaches and nobody is telling the court when the child might be admitted”. The barrister said that the situation was “not satisfactory” given the events that brought the child into the care of the CFA and the initiation of the proceedings in the first place.
Barrister: “The CFA will probably say that the supports are significant but they are a stop gap to plug a deficiency in the system of meeting his needs.”
The barrister outlined the parent’s exasperation in respect of the ongoing situation and sought leave to issue an application pursuant to section 47 returnable for early the following week, seeking the reliefs of joining the HSE to the proceedings and a direction in respect of the teenager’s admission for an inpatient assessment.
The barrister for the CFA outlined the circumstances of the multi-disciplinary meeting that had taken place on the previous day. She said that it was “essentially correct” that on an initial assessment the child was not acutely unwell but his needs were “chronic” so he did not meet the criteria for an emergency bed. The court was told that the child was on a waiting list and other options had been explored in other units around the country but they were unable to provide an inpatient bed.
The barrister said that the opinion was that the boy’s long-term needs could be met in a community setting with the assistance of the Child and Adolescent Mental Health Service. The barrister said that she appreciated that the parents needed further information and the CFA would continue to provide the supports for a further short period of approximately twelve days. She said the CFA believed that it was in “the best interests” of the teenager to reduce the length of supports as “some degree of normality needs to be provided to the child from next Monday”.
The court was told that the CFA was “moving to the position that he probably does not satisfy the requirements to be in the care of the CFA” and at home was the best place for the boy to be cared for by his parents. She said that “according to the doctor things are going well” and from information the CFA had received “his routine had improved” although the child was still presenting with anxiety.
The barrister said that the CFA was continuing to provide support for the further short period but then “will be reviewing the support”. She highlighted that there were “a number of factors at play such as if he was to get a bed”. Following the inpatient assessment that would take a number of days, the outcome of that assessment would determine “where the next step is” and she said “that is all the CFA have to offer”.
The solicitor for the GAL provided the updated report outlining “the wrap around plan that reasonably responds to his current presentation”. He said that the GAL remained of the opinion that the boy should remain in the home pending evaluation rather than in an adversarial forum where there were a lot of consequences. The solicitor told the court that everyone acknowledged that the boy required an inpatient assessment, but the dispute was about the urgency.
He said that the situation was “urgent but not acute in respect of the pressure on beds” and he described it as “the regrettable reality” as even if the assessment was undertaken there would be a “relatively swift discharge”. The GAL was of the view that it was “likely to result” in something community based that would be the appropriate way forward with the child in the family home. The GAL maintained the view that he was not a child to be placed in a CFA facility that would have “adverse effects” and be retrograde. He told the court that the GAL had also recommended that a family therapist be engaged for the child and his family. The solicitor said that to “somehow accelerate the assessment” was “not a panacea” but would only inform the plan.
The judge said that it appeared to him “without prejudging the section 47 application” that he had some doubts in respect of the prospect of joining the HSE and the court making an order directing the HSE to make a bed available. The judge said that “the court has to get people to do what they can do but it can’t make them do things outside their various remit”.
The judge said the court was “trying to deal with the sins of omission of not having done things that ought to have been done” and that the HSE will have a protocol. He described the situation as a “chronic problem rather than an acute one” and the boy “will be triaged in whatever way it will be”. The judge made a number of comments in respect of the average waiting times for assessments but that they were “the parameters that are there”. He acknowledged that it was “a very difficult situation” and agreed that the child was better off at home instead of a residential placement.
The barrister for the parents emphasised that it was accepted by the HSE and the professionals that the teenager required an in-patient admission for assessment.
Barrister: “We are left in this situation all the time where State institutions are saying this person requires that but it is not available.”
The barrister said that the parents were concerned that the HSE view was that the boy’s presentation was “not acute but at the same time are saying it is chronic” and that it was only a matter of time that the situation that brought about the proceedings arose again and that was a concern to the parents.
Judge: “Isn’t this the difficulty with things that are chronic? The HSE are dealing with chronic illnesses and life restricting conditions that are chronic and people have to wait a very long time. It is a problem in the whole system and the question is what to do with that and what can a court do with that system. You can make any application and it will be heard but my observation is that is all out there.”
The judge noted that “the assessment will inform what might happen after that” and if some community-based therapy was advised everyone would have to think carefully about it. He said that some form of family therapy might be of some assistance as “it might be helpful for things like coping strategies”, the GAL’s suggestion was worth careful consideration and that was why there was a court-appointed guardian. The judge gave leave to the parents to bring a section 47 application, listed the matter the following week and he said “hopefully something will materialise”.
When the matter came back before the court, the barrister for the parents updated the court and said that up until the previous Friday, the boy had been in voluntary care, but the CFA solicitor had very recently written to them indicating that “they considered he was no longer in voluntary care and therefore the section 47 application was spent.” The barrister said in those circumstances he was no longer proceeding with the application, but that “welfare issues remained at play.”
The barrister went on to say that when the correspondence was received from the CFA, a decision was taken to bring an application under section 11(1) of the Child Care Act, 1991, in respect of the HSE only, so as to protect the teenager’s interests. He said he was now asking the court to strike that application out.
The CFA solicitor said that although the boy was no longer in voluntary care, the CFA would continue to provide support to the family and it was now seeking to adopt “a collaborative approach with the parents.” The parents’ barrister confirmed the arrangement.
The solicitor for the GAL said as the teenager was no longer in voluntary care, the GAL’s involvement had concluded. The judge discharged the GAL in those circumstances.
The barrister for the HSE said that although it was unusual, she was applying for her costs in respect of her attendance for the parents’ application under section 11(1) of the 1991 Act. She said a representative for the HSE had been required to attend court on foot of a witness summons which had been applied for by the legal representatives for the parents. She said this had been struck out and the HSE did not seek its costs at the time.
She said: “On this occasion, it is not that I have an issue, but the fact is that there is an application for an unlawful order to make a clinical place immediately available for [the boy], and no court can grant an order of this nature, not even in the Supreme Court. The basic concept of the separation of powers could never allow this, and the courts have time and time again, said that they cannot interfere in this type of thing.”
The barrister said there were “very busy people within the HSE,” who were using “valuable time to deal with unnecessary and futile applications.” She said it was in those circumstances that she was asking for the costs of her attendance for the day. She clarified that the HSE “will not enforce the costs if awarded, but it is in principle that I am seeking the order.”
In response, the parents’ barrister said that the boy had been brought into the care of the HSE in February and had been placed in an emergency hostel for the weekend. He said the boy was then assessed by the Child and Adolescent Mental Health Service, after which a report determined that he required in-patient assessment. He said there was also a recommendation that the teenager engage in counselling for substance abuse, but there were issues with the previous counsellor, and a new one had now been identified.
He said: “With specific regard to the in-patient admission, the GAL also believed he required this and so the witness summons was deemed necessary at that time. I did not oppose the summons being struck out as the HSE advised that a representative would attend court.”
The barrister said the HSE was “trying to paint a picture of us oppressively bringing applications, despite the HSE clearly agreeing that the teenager did require admission for in-patient treatment.” He said the issue was simply “a matter of time in terms of when he should be admitted.” He said there was never any indication from the HSE as to when the boy’s admission would happen.
The parents’ barrister said the circumstances in which the teenager had been brought into care had been “extremely traumatic.” He said there was an ongoing concern that “an event such as this might happen again.” He said the level of support provided by the CFA “reflects the seriousness of the situation.” He clarified that the application under section 11(1) of the 1991 Act had only being brought because the HSE had failed to state when the teenager might be admitted for in-patient assessment. He said the HSE had since confirmed that it would happen “in the next week or so,” so the parents were accepting this and were happy to look to strike out the application.
The parents’ barrister went on to say that he had not led the court into error, as submitted by the barrister for the HSE. He said the court did have jurisdiction to hear the application and that the section of the Act in question “can be widely interpreted.” He said, “I would not advance an application which I did not consider had merit, or which I did not consider vested jurisdiction in the court.” He said in those circumstances, the court should not make any order as to costs as against the parents.
The barrister for the HSE reiterated that the court “will not and cannot make mandatory orders of this nature.” She said the court “cannot interfere with the clinical judgement of consultants.” She said that event when a court makes a declaratory order, “it will still exercise clear caution.” She said the HSE was seeking its costs “as a matter of principle only,” and would give an undertaking not to enforce the order if it was granted.
Judge’s ruling
The judge noted that the application under section 11(1) of the 1991 Act, had been withdrawn. He said the correspondence outlined that a number of questions were put to the HSE and responses were provided. He said, “whether or not the application was lawful, it seems to me to be an argument which does involve the separation of powers.” He said the court could not “disarm the architecture of the HSE,” and that he was “swayed” by the argument put forward by the barrister for the HSE. He said in those circumstances, he was awarding costs to the HSE, while noting the undertaking provided that the order would not be enforced.
