M.G. v The Director of Oberstown Children Detention Centre
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 03 May 2019 |
| Neutral Citation | [2019] IEHC 275 |
| Docket Number | 2018 No. 759 J.R. |
| Court | High Court |
| Date | 03 May 2019 |
[2019] IEHC 275
THE HIGH COURT
JUDICIAL REVIEW
Simons J.
2018 No. 759 J.R.
Judicial review – Separation measures – Child detainee – Applicant seeking an order of certiorari in respect of certain separation measures applied to the applicant – Whether the disparity of treatment between adult prisoners and child detainees contravenes the constitutional right to equality before the law
Facts: The applicant applied to the High Court seeking an order of certiorari in respect of certain separation measures applied to the applicant over the course of a six-day period in September 2018. The proceedings raised issues as to the nature and extent of the legal constraints which apply to the director of a “children detention school” (as defined) in taking measures for the maintenance of order at the school. The applicant contended that before a child detainee can be separated from his or her peers on even a temporary basis, the director of a school is obliged to comply with certain procedural requirements. More specifically, it was submitted that a child detainee is entitled: (i) to a formal written decision containing adequate reasons for the separation; (ii) to notice of the terms of the separation, including its duration; (iii) to an opportunity to make representations; and (iv) to an opportunity to appeal the decision. This submission was predicated on an argument that the separation of a child detainee from his or her peers represents an interference with the child’s constitutional right to dignity and bodily integrity, and that such interference triggers a concomitant requirement for certain procedural safeguards. The applicant placed much emphasis in this regard on the judgment in S.F. v Director of Oberstown Children Detention Centre [2017] IEHC 829. A related argument was made to the effect that the disparity of treatment between adult prisoners and child detainees contravenes the constitutional right to equality before the law as provided for under Article 40.1 of the Irish Constitution. It was said that an adult prisoner has the benefit of certain safeguards under the Prison Rules 2007 which do not extend to persons detained at a children detention school, and that this difference in treatment represents unjustified discrimination.
Held by Simons J that the measures taken by the first respondent, the Director of Oberstown Children Detention Centre, in respect of the applicant were lawful, that the decision to separate the applicant from his peers on a temporary basis was entirely proportionate given the risk which his behaviour at the time presented to staff and other detainees, that the evidence indicated that the objective of the separation measures was a safety and security objective, and that there was no punitive objective involved. Simons J held that there was no obligation upon the Director to comply with the elaborate procedural requirements contended for on behalf of the applicant in the circumstances. Simons J held that it was sufficient protection for the applicant that the Director complied with the Single Separation Procedures (July 2018). Simons J held that the applicant’s reliance on the judgment in S.F. v Director of Oberstown Children Detention Centre was misplaced as the separation measures applied to the applicant did not exhibit any of the features which had been of considerable concern to the High Court in S.F. Simons J held that the applicant’s contention that there was a breach of the guarantee of equality before the law under Article 40.1 of the Irish Constitution was unfounded: first, the comparison between an adult prisoner and a child detainee is inapt in circumstances where the two are not similarly situated; second, and in any event, Article 40.1 expressly allows for the enactment of legislation which has due regard to differences of capacity. Simons J held that the difference in treatment of offenders based on age provided for under the Children Act 2001 serves a legitimate legislative purpose, is relevant to that purpose and treats both classes fairly.
Simons J held that the application for judicial review would be dismissed.
Application dismissed.
These proceedings raise issues as to the nature and extent of the legal constraints which apply to the director of a ‘children detention school’ (as defined) in taking measures for the maintenance of order at the school. The Applicant contends that before a child detainee can be separated from his or her peers on even a temporary basis, the director of a school is obliged to comply with certain procedural requirements. More specifically, it is submitted that a child detainee is entitled (i) to a formal written decision containing adequate reasons for the separation; (ii) to notice of the terms of the separation, including its duration; (iii) to an opportunity to make representations; and (iv) to an opportunity to appeal the decision.
This submission is predicated on an argument that the separation of a child detainee from his or her peers represents an interference with the child's constitutional right to dignity and bodily integrity, and that such interference triggers a concomitant requirement for certain procedural safeguards. The Applicant places much emphasis in this regard on the judgment in S.F. v. Director of Oberstown Children Detention Centre [2017] IEHC 829; [2018] 1 I.L.R.M. 459.
A related argument is made to the effect that the disparity of treatment between adult prisoners and child detainees contravenes the constitutional right to equality before the law as provided for under Article 40.1 of the Irish Constitution. It is said that an adult prisoner has the benefit of certain safeguards under the Prison Rules 2007 which do not extend to persons detained at a children detention school, and that this difference in treatment represents unjustified discrimination.
The principal relief sought in the proceedings is an order of certiorari in respect of certain separation measures applied to the Applicant over the course of a six-day period in September 2018.
For the reasons set out in detail herein, I am satisfied that the measures taken by the Director of Oberstown Children Detention Centre in respect of the Applicant were lawful. The decision to separate the Applicant from his peers on a temporary basis was entirely proportionate given the risk which his behaviour at the time presented to staff and other detainees. The evidence indicates that the objective of the separation measures was a safety and security objective, and that there was no punitive objective involved.
There was no obligation upon the Director to comply with the elaborate procedural requirements contended for on behalf of the Applicant in circumstances where (i) the separation measures were necessary to address an urgent situation; (ii) the separation measures were very limited and were reduced in severity over the course of the six days; and (iii) the separation measures were not intended to serve a punitive objective. It was sufficient protection for the Applicant that the Director complied with the Single Separation Procedures (July 2018).
The Applicant's reliance on the judgment in S.F. v. Director of Oberstown Children Detention Centre is misplaced. The separation measures applied to the Applicant in the present case do not exhibit any of the features which had been of considerable concern to the High Court in S.F. In particular, the Applicant had been provided with access to exercise, and to telephone contact with his family, at all times. The Applicant was also allowed to reside in his own room, and had access to educational and recreational materials. Moreover, the separation measures only applied for a period of six days, with the restrictions being reduced in severity over the course of those six days.
The Applicant's contention that there was a breach of the guarantee of equality before the law under Article 40.1 of the Irish Constitution is unfounded. First, the comparison between an adult prisoner and a child detainee is inapt in circumstances where the two are not similarly situated. Secondly, and in any event, Article 40.1 expressly allows for the enactment of legislation which has due regard to differences of capacity. The difference in treatment of offenders based on age provided for under the Children Act 2001 serves a legitimate legislative purpose, is relevant to that purpose and treats both classes fairly.
The Applicant is currently detained at Oberstown Children Detention Centre (‘ Oberstown’) pursuant to a number of detention orders made by the District Court following his conviction for various criminal offences. The Applicant is under the age of 18 years, and thus comes within the definition of a ‘child’ under the Children Act 2001.
The within judicial review proceedings principally concern events in September 2018 at Oberstown. These events were triggered by an incident on 16 September 2018. More specifically, on the evening of 16 September 2018 the Applicant was involved in an incident in the sports hall at Oberstown. No details of this incident have been provided by the Applicant's side, but it has been addressed in the affidavit filed by Pat Bergin, the Director of Oberstown (‘ the Director’). The relevant extracts from the Director's affidavit have been set out in an Appendix to this judgment. For present purposes, the incident might be summarised as follows. It seems that the Applicant and two other young people engaged in an eight-hour stand-off with staff. It is averred that the Applicant directed verbally abusive slurs of a highly sexualised nature and threatening...
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