The Supreme Court unanimously rejected an appeal by the Child and Family Agency (CFA) against two decisions of the High Court requiring it to apply for special care orders for troubled teenagers. The orders had been made by Mr Justice Heslin and Mr Justice Jordan and supported by the guardians ad litem for the two children. Though agreeing that the children qualified for special care, the CFA had argued that as there were no special care beds available there was no point of applying for special care orders.
In giving the lead judgment in the case, Mr Justice Hogan stated: “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. In the face of overwhelming evidence as to the treatment which these children required, the failure to do so can only be regarded as an example of a statutory body refusing to give effect to legislation enacted by the Oireachtas.”
He rejected the contention of the CFA, that it could not comply with the order because it did not have the staff to resource special care beds, on the basis that if implementing the legislation setting up special care was too onerous, the remedy was to amend the legislation. For the court to accept the CFA’s reasoning would be to undermine the legislative function of the Oireachtas, he said.
Background
The case concerned two teenage children who the Supreme Court referred to as M and B. The children had troubled histories, which included violence and abuse. Both children had been in the care of the Child and Family Agency (CFA) and had been subject to interim care orders. Both children had periods of having gone missing in care.
With regards to M, following significant incidents, the CFA had been satisfied that there was a reasonable cause to believe that M required special care. Special care permits the CFA to admit children to a specialist residential unit and if necessary to detain the children in that unit. In special care children receive intensive therapeutic support from a comprehensive range of services, including education, which would otherwise not be available or not be able to be delivered to the child in an ordinary community setting. Such orders are made by the High Court as detention of the child is involved.
The decision to make an application for special care was supported by M’s family and M’s guardian ad litem (GAL). The CFA’s special care referrals committee agreed that M fulfilled the criteria for admission to special care. With regards to B, again following significant incidents, the CFA was satisfied there was reasonable cause to believe that B required special care. This was supported by B’s guardian ad litem (GAL).
Mr Justice Heslin had made an order of mandamus (requiring something to be done) to compel the CFA to apply for special care orders for these two children. The argument of the CFA was that as there were no special care beds available there was no point of applying for a special care order. However, once the mandamus order was made, the CFA had to make the application for an order to place the children in special care and Mr Justice Jordan made these orders.
The CFA appealed both these orders to the Supreme Court. The CFA stated that they had to appeal both these orders as they could not be complied with because no special care beds or placements were available. Given the significant public importance of these proceedings and that there were at least nine other children who were waiting to be admitted to special but could not be because no beds were available, these appeals had “jumped the queue” into the Supreme Court to be heard as a matter of urgency. The matter was heard by five Supreme Court justices which included the Chief Justice.
Supreme Court hearing
The parties involved were the CFA, the two GAL’s and the parents. As the matter was of significant public importance the Attorney General (AG) was made a notice party and was present at the proceedings. All parties were represented by solicitors and senior and junior counsel. Submissions had been forwarded to the court and exchanged between parties prior to the hearing.
Submissions by counsel for the CFA
The counsel for the CFA said that there were a number of such cases. There were approximately nine children waiting to be admitted to special care where no special care beds were available. As there were no beds available when a special care order was made the CFA was not able to comply with the order. He said no court could make an order that a person or entity could not comply with.
He said that section 23C of the 1991 Child Care Act described what a special care unit was and the care requirements of it. Section 23D described the interplay between special care units and the criminal justice system. Section 23D(6)(a) would be determined in all cases once a decision was made to admit a child to special care.
The special care order was introduced in 2011 and was implemented in 2017, there was no previous regimen. He said special care was introduced to deal with the increasing and growing needs of the children like M and B who had significant needs. Section 23F stated that special care should not apply to children under the age of 11 years.
He said where the CFA had reasonable cause to believe a child may need special care the child must be assessed. The threshold for special care must be met and the child’s needs must require special care. These were two different tests: the CFA must have reasonable cause to believe the child required special care and the child’s needs required special care. The High Court must examine both as there was an important distinction.
Section 23G was the notification to various parties that an application for special care was to be made. He said under section 23F(2)(a) the CFA shall not apply for a special care order unless it was satisfied and had made a determination there was reasonable cause to believe the child required special care. He said that the CFA must have had a reasonable cause to believe special care was required but in section 23H the court must be satisfied that the special care was needed by the child.
The Chief Justice asked if there was an obligation on the CFA to provide special care. Counsel for the CFA said the legislation stated the CFA shall provide special care if a special care order is made. Counsel for the CFA said that was the purpose of the High Court order, which was in section 23H of the 1991 Act. He said the High Court order was necessary to facilitate special care, because part of a special care order gave the CFA the ability to detain a child.
However, it did not follow that special care would be given. It was important to note that within the section 23H that all provisions directed and used the word “shall” and “shall” implied that the CFA must. However, at the end of section 23H, the 1991 Act stated that the high court “may” make a special care order. It was this difference and change from “shall” to “may” meant that the High Court had a discretion. This meant the court did not have to make a special care order even if the circumstances of the case required it.
Counsel for the CFA said section 23H was mandatory by the use of the word “shall” but there was discretion given by the Oireachtas at the end of the section by the change from “shall” to “may”. He said the Oireachtas, through legislation, could not have demanded that children be detained. It would have been a trespass by the Oireachtas to make a detention order, this was why special care orders, with the associated detention aspect, were referred to the authority of the High Court, which can make a detention order as part of the special care order. He said the Oireachtas by the use of “may” had given the High Court the discretion to exercise this authority.
He said the CFA could not comply with this order as no special care beds were available. He said: “Would the CFA apply to the High Court to not make an order, equally the CFA could not apply for an order they could not comply with. How could the CFA ask for an order to be made if it was of no benefit to the child? What would be the point of the order if the special care bed was not available.” One of the Supreme Court justices said: “Well, it would be of benefit if a bed was available within a week, the order would be in place and the child could be placed in the special care unit.”
Counsel for the CFA replied: “If that was the case it would be on a first come, first served basis. The child awarded the special care bed would be provided with a bed on the basis on who had their application before the court first and it would not be according to need.” He said only the CFA and other professionals were able to assess the children, the assessment of which child received the special care bed was not the purview of the court. The CFA had undertaken all the assessments and knew the needs of all the children in their care. The CFA knew who and which child was most needy.
He said it was the statutory obligation of the CFA to apply for a special care order under section 23H once the threshold had been met. An issue would only arise if no special care bed were available. The Oireachtas had set out eight factors, listed in section 23H(1) of the 1991 Act that the court had to consider and all eight were child centred. After consideration of all those eight factors the High Court then may make an order.
The CFA had to have reasonable cause to make the application, the High Court must consider and ensure that it was satisfied that the special care order was required, then the order is made. The order may admit the child to the care of the CFA who would detain the child in special care in accordance with the High Court order. The CFA provided the special care bed but in the circumstances of these two children and others the CFA were not able to comply with that order and admit the child to special care because they did not have a special care bed.
He said the question asked at the end of the eight steps in section 23(H)(1)(a)–(h) was critical to the analysis, as it did not say that the High Court “shall” but that the court “may” make the order. The use of the word “may” and not “shall” gave the High Court a discretion, namely, that it may not make the order or that it could refuse to make the order. This was a type of residual discretion that the Oireachtas intended the High Court to have so the ultimate discretion was with the High Court.
He said: “It simply cannot be the case that the High Court can have permission to make an order that cannot be complied with.” He said there was no place for an order that was impossible to comply with. The High Court could not make an order to commit a child to special care, where the CFA had no special care bed. However, he acknowledged the obligation remained with the CFA to make an application to the High Court for an order.
He said that when the legislation was initially drafted it was not in the mind of the drafters or in their contemplation there would not be a bed available for special care. The CFA were mandated to make the application for special care by the statutory instrument (SI) 637/ 2017. This legislation bought Part IV of the 1991 Act into being and the inference was, of course that the beds would be available. The legislation had to be capable of being operational, it was never assumed that there would never be enough places. The Oireachtas was conscious of this, but the number of children who needed special care had increased significantly from when the legislation was first drafted. He said there had to be a discretion in the 1991 Act because the legislature could not have envisaged an order that could not be complied with.
The entire scheme of special care came within the purview of the CFA. However, if the resources were not available, what were the CFA supposed to do? In relation to the numbers involved, he said that the circumstances of 2011 were different from 2017, and were not the same today.
The Chief Justice asked if that was relevant. Counsel for the CFA said: “Yes, it is, there are 26 beds in total and the issue is about that.” The CFA had to perform their duty, they were not entitled to disregard it, but the court could not order mandamus where the order could not be complied with. He asked was it better for the court to make an order, when they knew there was no special bed available, and knew the order could not be complied with, or for the court to make no order. He said that section 23H was broad enough for the court to make that discretion.
One of the justices said it was possible to comply with the order, the CFA had a duty to comply and did not have a discretion. She said: “How can the CFA make an application that an order which they are mandated to make and then say they cannot comply with it. It was impossible to make an application to not grant an order. The CFA have delayed making applications for special care orders because it did not have special care beds.”
Counsel repeated that the CFA could not ask the court for an order it could comply with. As the CFA knew they would not be able to comply with these orders there were delays in the applications. He said the CFA acknowledged there was a statutory duty to ask the court for the special care order, but it was an order with which they could not comply.
He said the CFA had several children waiting for applications to be made for special care orders. These were the most vulnerable children. Counsel for the CFA likened these applications to emergencies. These children were in crisis before the time of detention. Special care orders were sharp, significant orders.
One of the judges said: “Do not all the children that a special care order is made for not have the entitlement to be admitted to special care. Is it not the duty of the CFA to admit the child to special care once the order has been made?”
Counsel for the CFA said there were children who should be admitted to special care but there were no beds so they could not be admitted. Sometimes a child’s circumstances changed, and they might no longer require special care, the situation was often very fluid. The CFA had to make the best of the resources it had available. The agency had to take the steps to admit a child to special care but that might mean another child who needed special care might not be admitted because this child might have a greater need.
He said the CFA did not have the funds to staff the special care beds. The CFA was restricted by the public service pay agreements and could not operate outside of these agreements. The nature of the work in special care units was arduous and the CFA was not permitted by the public pay agreements to offer incentives or allowances to staff to work in the special care units. The CFA would like to alter or give allowances to attract staff, but this was outside the control of the CFA. The CFA would like to open and operate more special care beds, but they were not in control of the pay scales and were unable to pay incentives to recruit staff. Extra payments or allowances were not within the CFA’s gift.
He said that the CFA also had to comply with the Health and Information and Quality Authority (HIQA) regulations. If the HIQA standards were not complied with, HIQA had the authority to sanction the CFA, which could include closing special care beds. He said the standards governed not only the physical space of the buildings, but also staffing ratios, training and rosters. If the CFA were to admit a child to a special care unit that did not reach the standards and requirements set by HIQA there was the danger that the placement would be closed.
He referred to the case of Brady v Cavan County Council [1994] 4 IR 99, which stated that the minister did not have to provide the funds to repair the road, and which had been upheld by the Supreme Court. He agreed that the CFA accepted that in the High Court, In Re: KM [2018] IEHC 651, Justice Reynolds had urged the CFA to address their staffing issues and acknowledged this case was not appealed.
Counsel for the CFA said what would happen if the court were to make the order, what would be the next step? Would the Chief Executive Officer (CEO) of the CFA have been bought to court to face a contempt of court charge? He said there was a difference between a person who would not comply with a court order and a person who could not comply with a court order.
It was accepted by the CFA that the legislature and the 1991 Act had told the CFA what and how to care for children who required special care. It was the office of the court to enforce the will of the legislature, but it was just not possible for the CFA to do that. He said the use of the word “may” in section 23H envisioned this.
He said that with regard to one of the children a special care bed would have been available within three weeks and that the High Court should have exercised its discretion. The CFA had wanted a delay in the order being made. There were alternatives, the court could have asked for the order to start in three weeks’ time. He said the other alternative was that the matter could have been adjourned for three weeks until the bed was available or that there could have been a stay on the order, meaning that the order would start when the bed was available.
One of the justices said if a stay or adjournment were permitted, and another application for special care for another child who needed it more was made would that child not receive the bed? Counsel for the CFA said that it then might fall to the High Court judge to decide which child received the bed.
Submissions by counsel for the guardians ad litem (GAL)
Counsel for the GALs stated that the focus was the best interests of the child. He stated that an order for special care had been made, no special care bed was available and the CFA had wanted the order set aside.
He gave the history of the children and their grave need for special care which had been set out in the judgment of Mr. Justice Heslin of 13 October 2023. M had suffered all forms of abuse and neglect. She had been admitted to the care of the CFA in 2021 and while in the care of the CFA had continued to suffer abuse and harm. B had a similar story.
He said that section 23(F) of the 1991 Act required the CFA to make a determination that special care was necessary and in these cases that determination had been made. There were three special care units with 26 beds, only 14 beds were operational. He said he believed that to have changed recently as a further bed had become available, now 15 beds were operational. He said that section 23B (3)(a) and (b) stated that the CFA shall provide special care units. The CFA would administer and maintain those units under the specific regulations of the Health Act 2007 section 8(1)(b). It was the obligation of the CFA to comply with the HIQA regulations. It was the statutory responsibility of the CFA to administer and maintain special care units. One of the justices said: “But surely the CFA can only comply if they have the funding to resource special care units?”
Counsel for the GAL said that the staffing issues had been raised in 2018 as per the judgment of Ms. Justice Reynolds In Re: KM [2018] IEHC 651 and it had been the responsibility of the CFA to address those staffing issues. These issues were not new. The CFA had known of the issues for the last five years. The CFA should have addressed them, and it was their responsibility to have addressed them. He said that a business case for extra payment for staff was only made in September of 2023. It had taken five years for the business case to have been made and in those five years the issue had not been addressed.
He said the CFA had stated in its affidavit to the court it was their responsibility to maintain and administer special care units. It was their responsibility to take action to ensure that responsibility was met. The Chief Justice said: “The CFA are fundamentally bound by the controls and the money available.”
Counsel responded that the CFA had remedies and it was not sufficient to say they did not have the money. In their affidavit they had not stated they did not have the money, they stated they did not have the staff. Another justice said that it was impossible for the CFA to comply with the order as they did not have a special care bed. Counsel for the GAL responded that it was possible for the CFA to comply with the order as the child had now been admitted to special care.
He said the critical part was that the CFA had not opposed the declaratory orders that were made but objected to the mandamus order that had been sought and made. He said that it was correct of Mr Justice Heslin in the High Court to make an order of mandamus because the declaratory order had had no effect and had been ignored by the CFA.
He said there were two specific factors that were applicable to the present circumstances. The first was the acknowledgement that the declaratory order had been ineffective. The second was that the longer an authority sat on their hands and procrastinated the more important it was for the court to make an order of mandamus.
He said the CFA had the statutory obligation to provide special care to children and they had not done so, they were in breach of their statutory obligation. It was also of concern to both GALs that the CFA had by their own policies lengthened the procedure for the admission of a child into special care, which delayed the process. He said that Mr Justice Heslin had found the process used by the CFA was to deliberately delay the making of a special care order.
He said the social workers had made detailed referrals which had been sent to the special care referrals committee and then to the director of special care. These two steps, one to the referral committee and the second to the director, were not in the 1991 Act, the CFA had introduced these two steps. Notwithstanding those steps the CFA were obliged to make a determination if a child needed special care and once that determination was made, the application to the High Court for a special care order had to be made.
Counsel for the CFA had suggested that in section 23H there was a discretion for the High Court through the use of the word “may”. He said this did not give a discretion that the High Court “may” or “may not” make the order, but that it “may” make the order once the conditions have been satisfied. In these cases, the conditions were satisfied as the CFA had applied for the orders. He said once the order had been made, it must like all court orders be complied with.
He said if the order was not complied with then an application for contempt could be made. A justice of the Supreme Court asked: “Would the CEO of the CFA be bought to court for a contempt application, would they go to jail until the contempt had been purged?” Counsel for the GAL said that it was not relevant to discuss what might or might not happen in contempt proceedings. In contempt proceedings a court had many options open to it including directions, fines, and custody. In any contempt proceedings the CFA would be able to explain their reasons for their contempt which the court could take into consideration. The court could exercise its discretion in any contempt proceedings.
He said no GAL wanted to bring contempt proceedings, but the GAL was appointed by the court. The duty of the GAL was to vindicate the rights of the child and to secure the child’s best interests. Section 24 of the 1991 Act stated the best interests of the child was to be the paramount consideration.
The CFA were duty bound to secure a special care bed for these children and the CFA had not done so. He said that if the CFA could negate their obligations because it was not possible to fulfil them for any reason or no reason, then section 23 and 24 of the 1991 Act would be set at naught.
Submissions by counsel for the parent of M
Counsel for the parents said that the best interests of the child were the paramount consideration. He said there was no discretion in section 23H and the CFA were obliged to admit the children to special care. He said that if section 23H did confer a discretion then any factor the CFA chose to introduce could be used to delay or prevent a child’s admission to special care.
The Chief Justice asked: “Are you saying categorically there is no discretion?” The counsel replied: “The only reason for discretion would be is if it was in the best interests of the child.”
Counsel said the legislation was like a domino effect. If all the conditions of section 23H(1)(a) – (g) had been met the order had to be made. Another Supreme Court judge asked; “If an order should be made that could not be complied with, would that order not be futile. If an order were made and there was no special care bed, the order would exist but would not be enforced.”
Counsel for the parents said the order had concrete benefits. If a special care order were made and no special care bed was available, the order would be in place and as soon as a bed was available the order could be fulfilled. It also had the benefit that even if the child were not in a special care placement and the child absconded, An Garda Síochána could attempt to search, locate, or return the child to a place of safety. When a special care order was made it had to follow that the child would be admitted to special care that day, but even if the child were not admitted there were benefits to the child of the order being in place. He said it was not in any child’s interests for a special care order to be delayed.
He said if the CFA did not comply with the court order, the next step would be contempt proceedings. This was not the problem of this application or hearing, it would be the problem of the court hearing the contempt proceedings. There would be many avenues open to the court which would or could include sanctions. It would also be open to the court to canvass the reasons for the contempt which the court might consider in amelioration of any sanction it might impose.
Asked what would happen if the court accepted that the CFA had made every effort to secure a special care bed but had been unable to do so, the parents’ counsel replied the court may find there was to be no sanction against the CFA. Regardless of whether the CFA were sanctioned or not, it did not absolve them of their statutory duty.
A justice of the Supreme Court said: “The court was asked to hear this case as a matter of urgency, but the children of this application are now in special care, the reliefs have been granted, what was the end point, what is the relevant legal issue?”
Counsel for the parents said that a declaratory order should have been sufficient to vindicate the rights of the child, but the declaratory order was not sufficient because the order was not complied with. He said it should not have been necessary to seek an order of mandamus, the CFA should have complied with the declaratory order. He said declaratory relief should have been enough and adequate but it was not.
There had been issues with the availability of special care beds for over five years. He said there was no discretion, when a determination for special care had been made, the CFA had to make an application for a special care order and admit the child to special care. It was not suggested that this was easy. It was acknowledged there were extreme difficulties which included staff recruitment and retention but equally there were positive obligations of the state to vindicate the rights of the child. He said there were qualified rights under the Constitution and the European Human Rights Charter (ECHR) which could not be outweighed or negated by the difficulties the CFA faced.
If the CFA were permitted to use the fact that they could not recruit or retain staff as defence of their statutory obligations as in this case, it would be a defence in every case. A justice of the court said: “The CFA is not the State, and it is the State which is responsible for ensuring the rights of people are protected.”
Counsel for the parents replied that the CFA was a State agency and was accountable if their actions affected people. The State was under a positive duty to have processes in place that protected rights, the State had discharged this duty to the CFA. There was an absolute obligation that children’s rights were vindicated and protected
The Chief Justice asked: “At what point can the defence of impossibility be used, would we put the CEO of the CFA in jail?” Counsel replied he hoped that would not happen, but the State had a duty to protect the rights of children and it had enacted legislation to give the CFA the authority to do this. This duty and obligation to the children took precedent over any admonishment that may or may not be imposed because of the failure to do so.
The Chief Justice said: “Surely there has to be a balancing act, it would be unthinkable to permit a public servant to be put in that position.”
Counsel replied that the position was difficult, but the position was not new, and it had been so for many years. The declaratory order that had been previously made had not been enough. The High Court found that mandatory orders were necessary to vindicate these children’s rights and the CFA had still not complied with them.
Submissions by the counsel for the parent of B
Counsel for the parent of B said the Oireachtas had imposed on the CFA the duty to provide special care to those children who needed it. Once the CFA had made a determination that the child needed special care, the CFA had to apply for a special care order and admit the child to special care. He said the court could not infer that the use of the word “may” at the end of section 23H(1)(a) – (h) to mean the court or the CFA had a discretion.
He said things had changed. The Oireachtas could not have foreseen the difficulties and how the needs of children have changed. However, there were no caveats within the legislation and there was a deliberate choice to use specific words which must be given their ordinary, everyday meaning. It was the duty of the court to ensure that legislation was complied with. Failure by the CFA to comply with that duty meant that the CFA would be open to the penalties that any violation of legal obligations bought.
He said there had been staffing issues within the special care units. The staff in these units were subjected to verbal and physical, abuse and assault. The difficulty of the public sector pay scales that the CFA were obligated by meant that recruiting and retaining staff had become very problematic. The CFA had been aware of these issues.
However, there had been options open to the CFA to address these issues. It was open to the Oireachtas to amend the legislation and it had not done so. It was open to the Government to re-examine the funding issues and it had not done so. It had been open to the CFA to bring a business plan for staff incentives and it has taken them five years to do so. It was not for the court to step into those shoes.
He said that if section 23H permitted the CFA a discretion, then it would not be in the best interests of the child. The difficulties of the CFA were not consistent with the child centred approach of the legislation.
He said that the Brady case was not applicable as it concerned the state of the roads. It was a resource issue, but it was not a resource issue that was associated with a fundamental right. The Chief Justice said the roads were so bad that people had died, and it did have an impact on personal circumstances. Counsel responded and said that the right was not an elevated right and there was a duty on the court to vindicate all rights.
He said it was for the CFA to explain why they could not admit the child to special care. Their affidavit at length explained the difficulty of the public sector pay scales and how they had to adhere to them. The CFA had stated there were additional allowances, but their affidavit had stated that to recruit and retain staff an extra allowance of up to €10,000.00 per annum was needed. This was the business case that had been put forward in September of 2023.
However, it had been as far back as 2018 when Ms Justice Reynolds in the High Court had stated the staffing issues had to be addressed as a matter of urgency. He asked what had the CFA have done? The CFA have given no information as to what has happened since 2018. There have been no reasons as to why this issue had not been addressed. He said the onus was on the CFA to explain what has happened since 2018, it was not sufficient for the CFA to say they had staffing issues.
The Chief Justice asked: “What would be sufficient?” Counsel for the parents said, if this were a recent problem it would be sufficient for the CFA to explain what the difficulties were, what they had done and intended to do but this staffing issue was not a recent problem, it had been going on for five years. This was not the first time the issue of special care had been before the court.
The Chief Justice said: “The CFA cannot generate its own revenue.” The counsel replied that he accepted that, but the CFA can and should have made all efforts to address the deficits it had. It had an obligation to limit the impact of the deficits it had. He said the court had to make a mandatory order where the CFA had not complied with a court order.
Submissions of the Attorney General (AG)
Counsel on behalf of the AG said that previously the first statutory scheme was provided for in the 1991 Act which had been amended and section 23 was inserted to govern the area of children in need of special care. He said in section 23H the word “may” was used not “shall”, which was not as strong and did not obligate the CFA. He said there were two issues to be decided, should the High Court grant a special care order and should Mr Justice Heslin have made an order of mandamus. He said that the principles, structure, and scheme of the 1991 Act had to be examined in the light of known statutory interpretation.
He said by the use of the word “may” meant the power to make the order but not the obligation to make the order. This implied that the emphasis was that once the conditions were satisfied, the court was in the position to make the order and if the conditions were satisfied then the order could be made. It implied the order could not be made if the conditions set out in section 23H(1)(a) – (h) were not satisfied. He said that if the conditions were satisfied, the power to make the order was granted and then that “may” became an obligation to make the order.
He said that what the court was being asked to do had to be questioned. He said section 23 in its structure had set out the requirements, completely and cumulatively. It was only once the conditions had been met could the order be made. He referred to other sections of other acts notably section 54 of the Adoption Act 2010 where the word ‘shall’ was used to specify conditions that must be met and once met the court could make an order. It was the comprehensive and cumulative nature that gave the court the ability to make the order. He said once the conditions were satisfied that “may” became a “shall” and there was no room for discretion. The Chief Justice said there had to be some discretion for the court. Counsel for the AG said that if the conditions were met then there was the obligation to make the order.
He said that special care was a particular type of care that was restrictive. It was only intended to be used if it was the only way to protect the life and welfare of the child. He said the emphasis was on the care the child required to be safe. The requirements and conditions had to be met for special care to be authorised.
He said the overview of the Act had to be seen in the light and under the umbrella of the best interests of the child. Section 23 had to be interpreted in line with sections 3 and 24 of the 1991 Act, that the paramount consideration was the best interests of the child. These sections were also interpreted in the light of the Constitution and section 24 had been amended to reflect the changes in the Constitution. He said given the emphasis that was placed on the best interests of the child why would the court be given discretion?
He said the 1991 Act was a social act and had to be interpreted from a purposive approach, which is what was the purpose of the 1991 Act, and it should be interpreted narrowly. However, it had to be remembered that the court could not disregard that there was a detention element to a special care order.
He said that there were two effects of a special care order. The first was that the CFA could if it thought it was necessary for the care and protection of the child, detain the child. As there was a detention aspect to the order, a time limit had to be placed on an order for three months unless it was extended. The second was it committed the child to a special care unit. He said a special care unit was to provide the special care. It was important to note that the special care order imposed an obligation and directed action. Section 23C defined what special care was. Special care was to address behaviours, the risk of harm such behaviours posed to a child’s life, health, welfare, or development. It included assessments, examination and or treatment, it also provided for education supervision. It provided for the release from special care. He said it was possible to provide for special care while not in a special care unit.
He said it was the submission of the CFA that it was impossible for them to perform this statutory obligation, and therefore the order should not be made. However, counsel for the AG said that it was possible to make the order and admit the child to special care but not admit the child to a special care unit. He said that an order had been made in the High Court which directed that a child be admitted to special care but that the order had not specified which special care unit. He said it was not necessary for the order to specify a unit.
He said that section 23H (1)(h) stated that the CFA can detain the child in a special care unit. It did not state that the CFA must specify the unit. He said that in section 23NA(4)(b) the CFA must take all reasonable steps to inform the parents of the name and location of the unit where the child is detained.
The Chief Justice said that if there was a warrant to detain a person, the person must know they have the authority to detain you and the place where you are detained. Counsel for the AG said the 1991 Act does not say an order for special care had to specify the unit. The parents have to be informed where the unit is, if it is in the best interests of the child.
He said it was his interpretation that the CFA was not confined to the special care units available but that special care could be provided outside of a special care unit. He said section 23NF(2) permitted a variation in a special care order for various purposes such as medical assessments or treatments or for educational purposes. He said by the insertion of section 23NF, the 1991 Act had contemplated a scenario where a child could be the subject of a special care order but not in a special care unit.
He said there were long-term difficulties of stepdown unit placements that had been highlighted in other judgments. He said that some children were ready to leave special care but there were no stepdown units to transfer them to, so they blocked a special care bed. He said the CFA had to operate in a world of what was available, not what should be available.
There were therapeutic benefits associated with special care, the educational provision, and the ability of An Garda Síochána to return a child. He said it was possible for a child to be in special care but not be placed in a special care unit. He said that the 1991 Act was prescriptive but the legislature was aware of the resources available. There had to be a purposive approach. The CFA could give as much of the special care it could in the light of the resources until a special care bed in a special care unit became available. The use of section 23NF may make the impossibility as advanced by the CFA possible. He said it would be possible for judges to make a combination of orders, an order under section 23H and an order under section 23NF.
Decision
Written decisions were given and published by Mr Justice Hogan, the primary decision and Mr Justice Murray. These decisions are available at: https://www.courts.ie/acc/alfresco/796cc5a9-988d-4a74-95ca-486117082f8b/2024_IESC_6_(Hogan%20J).pdf/pdf#view=fitH
and
Mr Justice Hogan’s decision, the primary decision, was lengthy and fully examined all the areas raised by all parties in their submissions. Mr Justice Hogan stated he was of the view and opinion the High Court orders were correct.
The decision noted the interplay between the decisions of the two High Court judges. At part five of his decision, Mr Justice Hogan asked if the High Court should have granted an order of mandamus directing the CFA to make an application or a special care order. He noted that an order of mandamus will only be made where it was just and convenient to do so. He said at paragraph 95 of his judgment:
“On any view of the distressing facts of these cases the CFA could not properly have concluded other than that there was ‘reasonable cause to believe’ that both children required 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. In the face of overwhelming evidence as to the treatment which these children required, the failure to do so was can only be regarded as an example of a statutory body refusing to give effect to legislation enacted by the Oireachtas.”
He said that in the circumstances Mr. Justice Heslin had the authority to make an order for mandamus and he was correct in doing so.
At part six of his decision, he examined the proper construction of section 23H(1) of the 1991 Act. He noted the arguments made by the CFA that the use of the word “may” implied a discretion and noted the argument of the GAL’s that the word “may” meant “shall”. Mr Justice Hogan found that there was a difference between “shall” and “may”. He said that difference was intentional. He said: “For my part, I consider that the use of the word “may” in these circumstances does imply the existence of a discretion as to whether to make a special care order.” He said the High Court did have a discretion to make or not make a special care order and in the circumstances of this case Mr Justice Jordan was correct to make a special care order.
At part seven of his judgment, he examined whether the High Court should have declined to make the special care order under section 23H(1) of the 1991 Act due to the lack of resources. He noted at paragraph 126 that there was nothing in the relevant section to suggest that the statutory obligations were dependent on resources. If this legislation was too onerous or costly the remedy lay with changing it.
He said at paragraph 124 “I cannot improve on the words of Lord Sales in R. (Imam) v. London LBC [2023] UKSC 45, [2023] 3 WLR 1178 at 1193: “When it is established that there has been a breach of such a duty, it is not for a court to modify or moderate its substance by routinely declining to grant relief to compel performance of it on the grounds of absence of sufficient resources. That would involve a violation of the principle of the rule of law and an improper undermining of Parliament’s legislative instruction.” He therefore rejected the application by the CFA that it could not comply with the order because it did not have the staff to resource special care beds.
At part eight of his judgment he noted that in a democratic State which is governed by the rule of law, all organs of the State are obliged to comply with court orders. In the event of non-compliance, the possibility of enforcement by means of the contempt jurisdiction would arise. However, he noted that in these proceedings, the children had now been admitted to special care and the CFA were not in contempt of a court order, the issue of contempt was purely hypothetical. However, this would be a possibility and would have to be given the most careful consideration. Mr. Justice Murray fully agreed with the conclusions that Mr. Justice Hogan had reached.
Section 23 of the Child Care Act 1991 is available at:
https://revisedacts.lawreform.ie/eli/1991/act/17/revised/en/html#PARTIV
