Health Service Executive (South Eastern Area) v W.R

• Jurisdiction: Ireland
• Judge: Mr. Justice MacMenamin
• Judgment Date: 18 July 2007
• Neutral Citation: [2007] IEHC 459
• Docket Number: [2005 No. 484 SP]
• Court: High Court
• Date: 18 July 2007

[2007] IEHC 459

THE HIGH COURT

No. 484 SP/2005

Health Service Executive (South Eastern Area) v R (W)

IN THE MATTER OF AN APPLICATION PURSUANT TO

ARTICLES 40 AND 42 OF THE CONSTITUTION

AND IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 3 OF THE GUARDIANSHIP OF INFANTS ACT, 1964

BETWEEN/

HEALTH SERVICE EXECUTIVE (SOUTH EASTERN AREA)

PLAINTIFF

AND

W.R. (A MINOR BORN ON THE - DAY OF - 1990 REPRESENTED BY HIS SOLICITOR -)

DEFENDANT

AND

L.R.

NOTICE PARTY

AND

HEALTH SERVICE EXECUTIVE (SOUTH WESTERN AREA)

NOTICE PARTY

CONSTITUTION ART 40

CONSTITUTION ART 42

GUARDIANSHIP OF INFANTS ACT S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CHILDREN ACT 2001 PART II

CHILDREN ACT 2001 S227(1)

CHILDREN ACT 2001 PART III

S (S) (A MINOR) v HEALTH SERVICE EXECUTIVE (SOUTHERN AREA) UNREP MACMENAMIN 15.6.2007 2007 IEHC 189

K (D) (A CHILD) UNREP MACMENAMIN 15.6.2007 EXTEMPORE

N (F) v MIN FOR EDUCATION 1995 1 IR 409

CHILD CARE ACT 1991 S3

D (T) & ORS v MIN EDUCATION & ORS 2001 4 IR 259

SINNOTT v MIN FOR EDUCATION & ORS 2001 2 IR 545

CONSTITUTION

Child

Nature of child's constitutional rights - High Court - Inherent jurisdiction - Personal rights - Detention in secure unit - Duty to provide secure accommodation and treatment -Statutory functions - Constitutional duty on State to provide child with appropriate treatment in secure accommodation as soon as reasonably practicable - Delay in fulfilling obligation - Absence of space in any unit - Detention order not implemented - Whether means necessary to implement court order - Approach to be adopted to create improved framework for care of young persons at risk - Whether substantial program of reform needed - Sinnott v Minister for Education [2001] 2 IR 545 and TD v Minister for Education [2001] 4 IR 259 distinguished (2005/484SP - MacMenamin J 18/7/2007) [2007] IEHC 459

HSE v R(W)

Background

1 1. On 19 ^th December, 2005 the plaintiff initiated proceedings by way of plenary summons for the detention of W.R., a young person at risk, and his placement in Ballydowd Young People's Centre. Subsequent to that order, W.R. was detained in Ballydowd and thereafter was placed in a high support unit from which he absconded on 29 ^th April, 2006 and refused to return there.

2 2. Efforts were made by the care workers engaged in his case to persuade him to return but this he refused to do.

3 3. The Gardaí were asked to assist on a number of occasions in apprehending W.R. While this had the effect of ensuring that he was placed back in the high support unit, he continued to abscond to his family home in a large provincial centre.

4 4. On 18 ^th May, 2006 an application was made to the District Court in his home area for a full care order. This order was granted by Judge William Hartnett of the District Court with certain conditions attached thereto. Despite this order being in place, W.R. continued to abscond from the unit in which he was placed.

5 5. The matter was re-entered in the District Court on 8 ^th June, 2006 by the Health Service Executive to inform that court that its order was being continuously breached, and that W.R. was refusing to remain at the high support unit in question. W.R. was brought to the Court on that date by the Gardaí and was returned to the unit by them. He again absconded on 9 ^th June, 2006.

6 6. W.R. faced criminal charges for an assault on a staff member while he was in the support unit. When he absconded and went home he engaged in extremely violent and intimidating behaviour. This necessitated his sister moving out from the home. W.R.'s mother, L.R., was extremely fearful of being assaulted by him. She feared for her life.

7 7. In June, 2006 W.R. had returned home. He was refusing to co-operate or engage with the Health Service Executive or indeed any of the authorities. Consideration was given to placing him again in Ballydowd where he had resided from 23 ^rd September, 2005 onwards. As of July, 2006 there was no place available for W.R. in Ballydowd. All avenues had been exhausted in trying to obtain a place for him. He had in fact built up relationships with staff in that young people's centre and furthermore, that unit could afford him the safe and therapeutic environment in which to address the issues which were causing his challenging conduct.

8 8. An affidavit was sworn by Richie Nolan, a social worker employed by the H.S.E., indicating the necessity that W.R. be placed in Ballydowd. It should be pointed out that the unit in question is run under the aegis of the plaintiff who is the H.S.E. There was at the time an admissions policy whereby a committee, and an appeals committee would determine the issue of whether young persons should be admitted to the unit. For reasons which had to do with space allocation and staffing the application was declined on 12 ^th July, Both the H.S.E. and his guardian ad litem wrote to appeal that decision. This appeal was allowed on 28 ^th July, 2006. However, even by then there was no space available for W.R. but he was offered a placement as and from 9 ^th August, 2006.

The position in July, 2006

9 9. By late July, the home situation was critical. W.R. was continuing to live at home which he had effectively taken over. He was drinking, using drugs and threatening and menacing his mother, and had disengaged from any services provided by care workers. He had come to the attention of the Gardaí. He was suspected of being involved in a racist-motivated petrol bombing of a car belonging to an ethnic family in his community. He was keeping company with other young adolescents and adults known to the Gardaí to be involved in criminal activity. He was engaged in unruly behaviour. His mother was genuinely, and with good reason afraid for her life. Her son's behaviour was spiralling out of control. He had not been stopped from engaging in this behaviour. It was continuing on what was described by the guardian ad litem in one report as a "downward slope of destruction". He had no regard for others or himself. He had no boundaries. He had no capacity to self-regulate at any level. As a matter of high probability his conduct was either going to lead to W.R.'s own life being placed at serious risk or, more probably, the lives of others being placed at risk.

10 10. The difficulty of the situation was emphasised by the fact that all parties, including the H.S.E. were ad idem that W.R. should be placed in Ballydowd. While the court order required was obvious, there were no means necessary to implement that order or to ensure that there was a place available for this young person whose way of life had become a profound risk to himself and others.

11 11. On 31 ^st July, 2006 the court ordered that W.R. be detained by An Garda Síochána and placed in Ballydowd Young People's Centre. However, it was necessary to make an order staying the effect of this order until 9 ^th August simply because of the absence of spaces in that centre. The court directed that there be made available further reports so that there should be available up to date information on the progress of the minor in the meantime. The position was the cause of considerable anxiety, sufficient to warrant consideration by the H.S.E. of actually asking that W.R. be placed in St. Patrick's, a penal institution, despite clear issues which might arise regarding the invocation of inherent jurisdiction in this context and questions as to the propriety of such procedure in the absence of a criminal conviction.

12 12. The care worker in question, Mr. Nolan, involved himself to an unusual degree in the case. He managed to maintain a level of contact with W.R. W. refused to acknowledge any responsibility for any of his actions. He knew he had been engaging in serious criminal behaviour. He was aware that the H.S.E. had been looking for him to place him in a care unit. He stated furthermore, that if the Gardaí came to collect him he would blame his mother for putting him in care again and would kill her.

13 13. This type of threat had been made previously by W.R. when he had threatened to kill both his mother and himself and to leave a letter explaining his reasons for doing so. He alleged that his mother was a "bad mother". He verbally abused her. These allegations were entirely without substance. At all times W.R.'s mother sought to protect her son, despite what might be regarded as his intolerable conduct.

14 14. W.R. considered himself "untouchable", that he could avoid criminal responsibility and that he could frustrate the efforts of the H.S.E. and of those who were involved in his care to take steps for his own protection and that of his family.

15 15. Matters were rendered more difficult because W.R. was aware of me making of the court order. There were real risks because it could not be implemented forthwith. Even were W.R. to be placed in Ballydowd there was a further risk of a breakdown in any relationship which he had with Richie Nolan, the care worker.

16 16. The genuine problems which existed in the implementation of the order of 31 ^st July were not the fault of any one person. It was certainly not the fault of the director of Ballydowd who had taken up office in May of 2006 . What occurred was the result of many historical factors, a number of which were already being addressed, even at that time, and others which have been the subject of a review by the H.S.E. outlined later. This judgment records these steps.

17 17. On 11 ^th August, 2006 this Court made an order directing that the Special Residential Services Board be joined as a notice party to these proceedings in an effort to outline and understand the problems underlying this situation.

18 18. The situation which arose in this case was by no means unique. On a...