M Mc D, A Child: Mc D v Child and Family Agency and Others J B, A Child B v Child and Family Agency and Others M Mc D, A Child: and Article 40.3 and Article 42A of the Constitution and the Childcare Act 1991 (as amended) and The Inherent Jurisdiction of the High Court Mc D v Child and Family Agency and Others J B, A Child: and Article 40.3 and Article 42A of the Constitution and the Childcare Act 1991 (as amended) and The Inherent Jurisdiction of the High Court B v Child and Family Agency and Others
Jurisdiction | Ireland |
Judge | Mr. Justice Gerard Hogan,Mr. Justice Brian Murray |
Judgment Date | 26 February 2024 |
Neutral Citation | [2024] IESC 6 |
Court | Supreme Court |
Docket Number | Supreme Court Appeal Numbers: S:AP:IE:2023/000132 S:AP:IE:2023/000134 S:AP:IE:2023/000135 |
In the Matter of M McD, A Child
and
and
Guardian Ad Litem
In the Matter of J B, A Child
and
and
Guardian Ad Litem
In the Matter of M McD, a Child
and
In the Matter of Article 40.3 and Article 42A of the Constitution
and
In the Matter of the Childcare Act 1991 (As Amended)
and
The Inherent Jurisdiction of the High Court
and
and
In the Matter of J B, A Child
and
In the Matter of Article 40.3 and Article 42A of the Constitution
and
In the Matter of the Childcare Act, 1991 (As Amended)
and
The Inherent Jurisdiction of the High Court
and
and
[2024] IESC 6
O'Donnell C.J.
Woulfe J.
Hogan J.
Murray J.
Donnelly J.
Supreme Court Appeal Numbers: S:AP:IE:2023/000132
S:AP:IE:2023/000133
S:AP:IE:2023/000134
S:AP:IE:2023/000135
AN CHÚIRT UACHTARACH
THE SUPREME COURT
Special care orders – Welfare of the child – Child Care Act 1991 – Appellant appealing against special care orders – Whether the appellant was justified in not making an application for a special care order under s. 23F of the Child Care Act 1991
Facts: The appellant, the Child and Family Agency (the CFA), appealed to the Supreme Court against two separate special care orders of the High Court made pursuant to the statutory regime provided for in Part IVA of the Child Care Act 1991 (as amended). In the first case, Heslin J granted mandatory orders directing the CFA to make an application to the High Court for a special care order pursuant to s. 23H of the 1991 Act. The second case concerned the order made by Jordan J on 25th October 2013 in which he granted the requisite special care order. The issues which were presented were whether, first, the CFA was justified in not making an application for a special care order in respect of the two teenagers in the first instance under s. 23F of the 1991 Act and, second, having been ordered by the High Court to make that application, whether the High Court was justified in making an order providing for their special care under s. 23H of the 1991 Act even in circumstances where there was no immediate place available for either of the children due to staff shortages. This raised the wider question of whether the courts should refuse to make orders commanding a statutory agency to perform its statutory functions in circumstances where the agency contends that by reason of the lack of resources (in this instance, staff) it encounters real difficulties in performing those functions.
Held by Hogan J that Heslin J was perfectly correct in holding that the CFA was obliged to make a determination under s. 23F that it should apply for a special care order in respect of both children. Hogan J held that, in view of the overwhelming evidence that those deeply troubled teenagers required this care, the CFA could not properly have reached any other conclusion. Hogan J held that, while it is true that s. 23H(1) does not necessarily oblige the High Court to make the requisite special care order even where the eight enumerated conditions pertaining to the welfare of the child are satisfied, the circumstances in which it could decline to make any such order are exceptional. Hogan J held that the courts are obliged to give effect to legislative commands contained in Acts of the Oireachtas. Hogan J held that, in doing so, the courts are upholding – rather violating – the Constitution by giving effect to the wishes of the primary lawgiver in accordance with the democratic structure of the State.
Hogan J held that, as s. 23H is not expressed to be resource-dependent, Jordan J was correct in making the special care orders pursuant to s. 23H(1) in the appeals.
Appeals dismissed.
JUDGMENT of Mr. Justice Gerard Hogan delivered the 26 th day of February 2024
. These appeals concern the fate of two acutely vulnerable teenage children whom I shall describe as M and B. There is no doubt whatever but that both of these children require a secure and safe environment in which their complex behavioural and educational needs can be attended to. It is likewise accepted by all the parties to these appeals that this care can best be provided by the civil detention of both teenagers for a limited period of time through the mechanism of a special care order. The care of these children is, however, a difficult and demanding one and the Child and Family Agency (“CFA”) has encountered considerable difficulties in retaining the appropriate staff for this purpose. It is not that the CFA cannot obtain staff simpliciter: it is rather that it cannot obtain staff at the current rates of pay presently sanctioned by the Minister for Public Enterprise and Reform.
. It is these difficulties which have given rise to these two appeals. In essence, the issues which are now presented are whether, first, the CFA was justified in not making an application for a special care order in respect of these teenagers in the first instance under s. 23F of the Child Care Act 1991 (as amended) (“the 1991 Act”) and, second, having been ordered by the High Court to make that application, whether the High Court was justified in making an order providing for their special care under s. 23H of the 1991 Act even in circumstances where there was no immediate place available for either of these children due to staff shortages. This raises the wider question of whether the courts should refuse to make orders commanding a statutory agency to perform its statutory functions in circumstances where the agency contends that by reason of the lack of resources (in this instance, staff) it encounters real difficulties in performing those functions.
. The present regime in respect of special care orders is provided for in Part IVA of the 1991 Act, as inserted by s. 10 of the Child Care (Amendment) Act 2011. This provision was commenced on 31 st December 2017: see Child Care (Amendment) Act 2011 (Commencement) Order 2017 ( S.I. No. 637 of 2017).
. These appeals accordingly concern appeals by the CFA against two separate orders of the High Court made pursuant to this statutory regime. In the first case, M v. Child and Family Agency [2023] IEHC 557, Heslin J. granted mandatory orders directing the CFA to make an application to the High Court for a special care order pursuant to s. 23H of the 1991 Act. The second case concerns the order made by Jordan J. on 25 th October 2013, Child and Family Agency v. M. ( 2023, MCA 354) in which he granted the requisite special care order.
. As it happens, since the High Court made orders to this effect, two beds have become available which would accommodate the two children for the purposes of a special care order. To that extent, the case is in one sense technically moot. Since, however, the issue raised is a systemic one affecting the general operation of the special care regime, it is appropriate that this Court should now determine the general issue of principle raised by this appeal: see, e.g., Odum v. Minister for Justice [2023] IESC 3.
. It is not, I think, necessary to outline in any great detail the sad facts underlying these two cases. The first of them concerns M., a teenager, whose mother is currently in prison. M and her siblings were placed with extended family members before she and her sister started living with her father for a period. Two years ago, M and her sister were found in the house of a known sex offender and the children were then taken into care.
. At various stages in her life, M was subjected to physical, sexual and emotional abuse and neglect. It seems that while living with her adult sister for a period she witnessed horrific acts of domestic violence perpetrated by her sister's partner on her sister. M discontinued her education as of the second half of 2022 and has opted out from all therapeutic offers of treatment during her placement. Over the last two years she was experienced the loss of siblings and an aunt and uncle to whom she was close.
. In the two years prior to May 2023, concerns were raised about M's behaviour with regards to threats and assault on staff members at the residential placement by M where she was living. This erratic behaviour included the stealing of money; damage to property and attempted arson; the consumption of alcohol and cannabis; suspected cocaine use; and multiple hospital admissions due to alcohol misuse. M.'s court appointed guardian ad litem (“GAL”) suggested that serious consideration be given to a special care placement in November/December 2022. Throughout 2023 M's circumstances worsened, with a litany of instances of where she was missing from care. During this period, she was found to have had an inappropriate relationship with an older male and was socialising with a peer group which engaged regularly in drug and alcohol misuse and anti-social behaviour.
. M's risk profile worsened throughout May and June 2023. M had begun a relationship with a new boyfriend, and she consumed cocaine and other illegal drugs. Suspicions were raised that M's boyfriend had harmed her in an instance of domestic violence. When that relationship broke up it appears that her boyfriend shared intimate images of them online.
. On 28 th June 2023 a complex case meeting was held by...
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