B and Another v B.B. and Others; M and Another v M.M. and Others; F and Another v F.F. and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Jordan
• Judgment Date: 25 October 2023
• Neutral Citation: [2023] IEHC 632
• Court: High Court
• Docket Number: RECORD NO: 2023 353 MCA RECORD NO: 2023 355 MCA

In the Matter of: B, a child

Between:

The Child and Family Agency

Applicant

and

B.B.

First Named Respondent

and

B.B.B.

Second Named Respondent

and

F.O'C.

Third Named Respondent

In the Matter of: M, a child

Between:

The Child and Family Agency

Applicant

and

M.M.

First Respondent

and

M.M.M.

Second Respondent

and

H.T.

Third Respondent

In the Matter of: F, a child

Between:

The Child and Family Agency

Applicant

and

F.F.

First Respondent

and

F.MCK.

Second Respondent

[2023] IEHC 632

RECORD NO: 2023 353 MCA

RECORD NO: 2023 354 MCA

RECORD NO: 2023 355 MCA

THE HIGH COURT

SPECIAL CARE

EX TEMPORE JUDGMENTS of Mr. Justice Jordan delivered on the 25 ^th day of October 2023 .

Child B.

1 . This is an application in respect of a child B. It is an application under the Child Care Act, 1991 which is brought to the Court by the Child and Family Agency. It is an application which seeks a Special Care Order in respect of this child who was born in 2007.

2 . The application comes before the Court with some history of litigation in that an application was made in the judicial review list for orders compelling the Child and Family Agency to bring this application before the Court. That application was successful in the judicial review list and has resulted in a written judgment of Heslin J. cited as M v The Child and Family Agency, B v The Child and Family Agency [2023] IEHC 559.

3 . The somewhat novel feature of this application is that it is an application by the Child and Family Agency in circumstances where they are compelled by Court order to bring the application before the Court. It is an application which comes before the Court in the ordinary procedural way in terms of the originating notice of motion and grounding affidavit — but with more comprehensive affidavits and exhibits due in part at least to the history of litigation in the judicial review proceedings.

4 . Thus, I am dealing with this application as an application by the Child and Family Agency for a Special Care Order. The unusual feature of the application is that it is an application for a Special Care Order by the Child and Family Agency and yet it is asking me not to make the Special Care Order because it would have difficulty providing a bed. In fact, I am told that there are two more applications, not dissimilar to this one, to be heard after this one and that the Child and Family Agency is of the view that one of the children is in greater need than the other two and the Child and Family Agency considers that the order ought to be made in that case but not in the others.

5 . That is an unfortunate position for the Child and Family Agency to be in in terms of its presentation to this Court. It is also an unacceptable presentation or an unacceptable approach to its obligations.

6 . I have considered the evidence before the Court i.e., the grounding affidavits of E.B. and of M.G. and the documentation exhibited with them. I require to be satisfied of certain matters before I make an order under s.23H of the Child Care Act, 1991 and the matters which I require to be satisfied of are those set out in s.23H(1) (a)-(h) inclusive;

“23H.—(1) Where the High Court is satisfied that –

(a) the child has attained the age of 11 years,

(b) the behaviour of the child poses a real and substantial risk of harm to his or her life, health, safety, development or welfare,

(c) having regard to that behaviour and risk of harm and the care requirements of the child—

(i) the provision, or the continuation of the provision, by the Child and Family Agency to that child of care, other than special care, and

(ii) treatment and mental health services under, and within the meaning of, the Mental Health Act 2001,

will not adequately address that behaviour and risk of harm and those care requirements,

(d) having regard to paragraph (c), the child requires special care to adequately address—

(i) that behaviour and risk of harm, and

(ii) those care requirements,

which the Child and Family Agency cannot provide to the child unless a special care order is made in respect of that child,

(e) the Child and Family Agency has carried out the consultation referred to in section 23F(3) or, where the Child and Family Agency has not carried out that consultation, the High Court is satisfied that it is in the best interests of the child not to have carried out that consultation having regard to the grounds provided in accordance with section 23F(9),

(f) in respect of the family welfare conference referred to in section 23F(5)—

(i) the Child and Family Agency has convened the family welfare conference and the Child and Family Agency has had regard to the recommendations notified in accordance with section 12 of the Act of 2001, or

(ii) it is in the best interests of the child that the family welfare conference was not convened having regard to the information and grounds provided in accordance with section 23F(10),

(g) for the purposes of protecting the life, health, safety, development or welfare of the child, the child requires special care, and

(h) having regard to paragraphs (a) to (g), the detention of the child in a special care unit, as it is required for the purpose of providing special care to him or her, is in the best interests of the child,

the High Court may make a special care order in respect of that child.”

7 . I have gone through each of these requirements and indeed have gone through the comprehensive detail on each in the grounding affidavit of E.B. and the position is that each of the criteria are met. I am satisfied, in fact I could not but be satisfied in respect of each of the ingredients. This young child is at very serious risk by reason of the matters detailed on affidavit and rather than improving with time the situation is disimproving it would appear with time.

8 . It is urged upon the Court that it ought not to make the Special Care Order which the Child and Family Agency has applied for in the application which is before the Court. It is urged upon the Court that the Court should not do so because a bed is not available. This Court is familiar with difficulties in staffing special care units. The Court is familiar with the special care unit at Coovagh House in Limerick, Ballydowd near Lucan and at Crannóg Nua in Portrane. I have visited these special care units on a number of occasions going back over the years. The position is that the total capacity of the three units is twenty-six if fully staffed. The current capacity is fifteen and was I am told until very recently fourteen. I am told, and again this has featured in applications made in this list in recent years as a problem, that there is a problem staffing the units and that there is a problem arising by reason of public service agre...