L.M. v The Child and Family Agency
| Jurisdiction | Ireland |
| Judge | Mr. Justice Charles Meenan |
| Judgment Date | 23 May 2023 |
| Neutral Citation | [2023] IEHC 289 |
| Court | High Court |
| Docket Number | [2023/90 JR] |
and
[2023] IEHC 289
[2023/90 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Mr. Justice Charles Meenan delivered on the 23 rd of May, 2023
. The issue at the heart of this application is one that frequently arises in judicial review proceedings. The issue is whether lack of resources, be they financial or otherwise, relieve an authority such as the respondent (the CFA), from discharging its statutory duties.
. As will be clear, the applicant is a deeply troubled person posing serious risks both to herself and others. The Oireachtas by enacting the Childcare Act 1991 (as amended) (the Act of 1991) has set out a statutory framework whereby care, safety and support can be given to the applicant. However, the CFA, the body designated to put these steps in place, maintain that they have not done so because of the absence of a placement for the applicant due to a lack of resources. The CFA have also raised issues that the placement of the applicant in such a unit without resources could potentially expose it to sanction by the Health Information and Quality Authority (“HIQA”).
. This application is one of a number of applications that are pending in the court in which similar issues are raised and this case was designated by the court as a “lead case”. However, it is the case that the statutory duties on the CFA where resources are an issue have been the subject of two earlier decisions of the High Court. I will refer, in some detail, to both these decisions which are clear and were not the subject of an appeal by the CFA.
. I will now set out, in a somewhat brief form, the applicant's situation.
. The applicant was born on 27 November 2005. Her parents had serious issues which were concerning for the welfare of the applicant. These included neglect, witnessing inappropriate sexual behaviour, exposure to behaviours of self-harm, concerns around alcohol and drug use and poor living conditions.
. The applicant had three foster placements, all of which broke down and the applicant was then placed in residential care. Problems with the applicant had persisted and included mental issues, engaging in physical attacks and self-harm. A report from the applicant's guardian ad litem, prepared for the District Court in January 2023 sets out the ongoing concerns:-
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(i) The applicant has expressed suicidal ideation on a number of occasions, has superficially self-harmed and, on 17 November 2022, reported she had taken an overdose of medication. There is significant concern that the applicant may actually cause serious harm to herself even if this is not her true intention.
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(ii) The applicant has placed herself in unsafe situations. She has very little understanding of self-safety and, thus, there is a high risk in respect of how she interacts with males. There are concerns that the applicant has and continues to engage with older males online (this has recently been referred to An Garda Síochána).
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(iii) The applicant has had a number of episodes of being missing from care. During the summer of 2022, the applicant absconded from staff whilst shopping in a shopping centre. She remained missing for a few days and there were reports that she had stayed in Dublin City Centre with a male and taken “hard drugs”.
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(iv) A very serious incident took place on 5 January 2023 where the applicant was reportedly collected by four males and asked to engage in “sex” with them. The applicant reported this.
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(v) The applicant's life skills are nowhere near where they need to be and there is significant concern given that she will be an adult in November 2023.
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(vi) The applicant struggles in her relationships with others and can become abusive to staff, engaging in assault and causing property damage.
. Section 23F of the Act of 1991 provides as follows:-
“(1) The Child and Family Agency shall not apply for a special care order in respect of a child unless it is satisfied that the child has attained the age of 11 years and it has made a determination, in accordance with this section, that the child requires special care.
…
(7) Where a family welfare conference—
(a) has been convened in accordance with subsection (5) and the (Child and Family Agency) has had regard to the recommendations, if any, notified under section 12 of the Act of 2001, or
(b) …
and the (Child and Family Agency) is satisfied that there is reasonable cause to believe that the child requires special care it shall make a determination as to whether the child requires special care.
(8) Where the (Child and Family Agency) determines that there is reasonable cause to believe that for the purposes of protecting the life, health, safety, development or welfare of the child, the child requires special care the (Child and Family Agency) shall apply to the High Court for a special care order.”
. It is clear that the wording of subss. (7) and (8) is mandatory in nature. I will be referring to authorities which support this interpretation.
. Section 23H refers to the making of special care orders by the High Court:-
“(1) Where the High Court is satisfied that—
…
the High Court may make a special care order in respect of that child.
(2) A special care order shall specify the period for which it has effect and that period shall not exceed 3 months from the day on which that order is made unless that period is extended under section 23J and shall—
…
and the High Court may make such other provision and give directions, as it, having regard to all the circumstances of the child, considers necessary and in the best interests of the child.”
. Thus, although the High Court has discretion in making a special care order, this discretion is to be exercised having regard to the circumstances and needs of the child. It follows from this that the non-availability of a placement for a child in a special care unit cannot be a reason for the court not to make a special care order.
. On 13/14 December 2022, the National Special Care Referrals Committee met to consider the applicant's case. The following decision was reached:-
“The determination of the National Special Care Referrals Committee is that the case of L.M. now fulfils the criteria for admission to special care. Please be advised that the referral information has been forwarded to the service director for special care for determination in accordance with the legislation.”
. This determination ought to have “triggered” the provisions of s. 23F(7) of the Act of 1991 but this did not happen. As no determination was made under subs. (7), no application was made to the High Court as is provided for in subs. (8).
. In the course of the proceedings, the applicant served on the CFA a Notice to Admit Facts as follows:-
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(1) The respondent's service director, National Residential Care, has never refused to make a determination under s. 23F(7) of the Childcare Act 1991 where same has been recommended by the respondent's Special Care Committee unless there has been a material change in circumstances in respect of the presentation of the relevant child in the period between the decision of the Special Care Committee and the determination of the service director, National Residential Care.
This fact was admitted by the CFA.
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(2) Since the judgment in ( A.F. v. Child and Family Agency Unreported, 28 January 2019, Faherty J.), the respondent's service director, National Residential Care, has always made a determination under s. 23F(7) within three weeks of the Special Care Committee's decision that a child requires special care.
This fact was admitted by the CFA.
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(3) Since the judgment in A.F. v. Child and Family Agency [2019] IEHC 435, the respondent has always moved any application for a special care order within three weeks of the Special Care Committee's decision that a child requires special care.
This fact was admitted by the CFA.
. It should be noted that, as regards (1) above, there has been no “material change in circumstances” of the applicant.
. On 3 February 2023, the High Court (Phelan J.) granted leave to the applicant to seek the following reliefs by way of judicial review:-
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(1) An order of mandamus directing the respondent to apply to the High Court for a special care order in respect of the applicant pursuant to s. 23H of the Act of 1991 forthwith.
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(2) A declaration that the decision and/or policy of the respondent to defer the making of an application for a special care order is unlawful when the CFA has, as of 14 December 2022, determined that the applicant requires special care.
. When the judicial review proceedings were initiated, it was believed that the CFA had made a determination under subs. (7). When the applicant became aware that this was not the case, an amendment of the statement of grounds was delivered seeking certain additional reliefs including:-
“If necessary, an order of mandamus directing the respondent to make a determination that the applicant requires special care pursuant to s. 23F(7) of the Act of 1991 forthwith.”
. The notice parties (save the first named notice party) were joined to the proceedings out of a concern that if the CFA could lawfully defer meeting the requirements of subss. (7) and (8) because of the lack of a placement, this would render the statutory provisions unconstitutional. Hence, the following relief was sought:-
“If necessary, insofar as the decision and/or...
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