M (Suing by His mother and next friend J) v Director of Oberstown Children's Detention Centre
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 18 September 2020 |
| Neutral Citation | [2020] IECA 249 |
| Docket Number | Appeal No. 2019/237 |
| Court | Court of Appeal (Ireland) |
| Date | 18 September 2020 |
AND
[2020] IECA 249
Whelan J.
Haughton J.
Murray J.
Appeal No. 2019/237
THE COURT OF APPEAL
This is an appeal against the order of Simons J. of 3 May 2019 refusing the appellant's
application for judicial review. At the time of the application the appellant, then aged fifteen years and a “child” within the meaning of the Children Act 2001, as amended (“the 2001 Act”), was being detained at Oberstown Children Detention Centre (“Oberstown”) pursuant to detention orders made by the District Court following his conviction for various offences. The principal relief sought was an order of certiorari in respect of certain separation measures applied to the appellant, particularly over a six-day period between 18 to 24 September 2018.
In the course of this appeal, an order was made prohibiting the publication or broadcast of anything that would, or would be likely to. identify the appellant.
The grounding affidavit of the application for judicial review was sworn by the appellant's solicitor. Mr. Matthew Kenny, and filed on 20 September 2018 and its averments warrant consideration. At para. 10 Mr. Kenny asserted that the appellant was subject “to an ad hoc punishment regime” and was being denied “any procedural rights in respect of the punishments he [was] subjected to.” At paras. 12 and 13 he averred that following “a disturbance in the gym” on 16 September 2018, the appellant was “detained in solitude,” “prevented from interacting with the other boys,” “prevented from attending school” and “denied access to all social activities and communal meal times.”
He deposed to a lack of procedural safeguards surrounding the separation measures :-
“…The Applicant has not been provided with any formal written decision containing adequate reasons regarding the imposition and continuation of this punishment regime. … was denied an opportunity to make representations in respect of this punishment regime. … was denied an opportunity to appeal the decision to subject him to this punishment regime. … has not been informed of the proposed duration of the punishment and is consequently subject to an indefinite period of segregation.” (para. 15)
Mr. Kenny exhibited email correspondence of 18 September 2018 between himself and Mr. Pat Bergin, the Director of Oberstown. relating to the separation measures in question in which the Director explained that the appellant was not being punished but rather was being assisted with the management of his behaviour. Mr. Kenny also referred to earlier email exchanges with the Director in relation to separation measures imposed on the appellant previously in July and August 2018.
At para. 17 Mr. Kenny characterised the July and August 2018 separation measures applied by Oberstown to the appellant as his having been “subjected to this ad hoc punishment while in detention.”
The statement of opposition denied that the appellant was subject to an ad hoc punishment regime or was placed on separation as a punishment. It stated at para. 4 that:-
“Following his involvement in serious disturbances, the Applicant was placed on separation, in accordance with Oberstown's Single Separation Policy. The decision to place him on separation was taken in the interests of his own safety, the safety of other residents and staff on the unit and in the interests of good order and security on the Oberstown campus as a whole and was not a punishment.”
The affidavit of Pat Bergin, Director of Oberstown, is of some importance, not least because it is very comprehensive but also because nowhere does the appellant either dispute or contradict its key averments. Neither did the appellant seek to cross-examine the Director at the substantive hearing in regard to it which, in light of the arguments being pursued in this appeal, warranted some explanation. None was forthcoming. The Director described the manner in which the challenging behaviour of a detainee is managed in Oberstown, including by way of a rating system with corresponding benefits for meeting required behavioural goals and the implementation of a relationship model of interaction between detainees and staff informed by on-site research and international best practice.
The Director gave details of three incidents in July, August and September 2018 in which the appellant had displayed “challenging behaviour”. Significantly, nowhere does the appellant dispute these details.
The Director averred that the appellant and another boy forced their way into the residential care worker's staff office. They began vandalising it and when an attempt was made to stop them, a staff member was struck on the head with a tennis racket. The appellant was physically restrained. He was brought to his bedroom and staff members attempted to contact his mother to inform her of the incident. Over the following days, he was allowed to make phone calls to his mother, father and girlfriend. He was given time in the yard and in the unit's multi-purpose room which contains a television and video games. He received a visit from his solicitor on 11 July 2018. That evening two staff members had a lengthy discussion with him about his behaviour. He accepted that the intervention had been made in his best interests.
The Director averred that the appellant was verbally abusive to staff members and made an attempt to physically hurt an individual care worker. He was physically restrained and brought to his bedroom and kept on separation for the following two days. He was allowed time in the multi-purpose room and yard and made phone calls to his father and girlfriend. He refused to engage in a reading programme with support staff. He was put on a structured. supportive programme when taken off separation.
The relevant extracts of the Director's affidavit describing the incident on 16 September 2018 are set out as an appendix to the High Court judgment. To summarise, it was averred that the appellant and two other young people engaged in an “8 hour stand-off with staff members and refused to leave the campus sports hall; that the appellant directed verbally abusive slurs of a highly sexualised nature and threatening language towards staff members: and. that he only agreed to return to the residential unit at 1.30 a.m. He also threatened to hurt staff members and fellow residents at various points on 17 and 18 September 2018. The Director described the measures imposed on the appellant over the two days following the incident, noting that an attempt was made to reintegrate him into the unit's routines on 17 September 2018 with which he did not cooperate. The following features of that regime are of particular note:
i. the appellant was allowed to reside in his bedroom:
ii. his mother and father were informed of the incident and that he had been placed on separation;
iii. education materials were brought to the appellant in his bedroom;
iv. the appellant was given access to the multi-purpose room and yard;
v. the appellant was allowed to make telephone calls to his mother, father, girlfriend and solicitor: and,
vi. the appellant had a consultation with his solicitor on 18 September 2018.
A six day plan was then put in place by the management, running up to 24 September 2018. which allowed the appellant to have limited interaction with fellow residents and provided for regular observation and review by staff members.
The Director's affidavit described in detail the Oberstown Single Separation Policy (May 2017) and the procedures for the use and recording of separation measures. The Director deposed that these procedures were informed by the High Court decision in S.F. (a minor) v. Director of Oberstown Children Detention Centre [2017] IEHC 829, [2018] 3 I.R. 466.
He identified key elements of the operation of the policy in practice:
i. separation of a young person beyond fifteen minutes is to be authorised by a Unit/On Call Manager:
ii. such authorisation is to be based on facts received from staff dealing directly with the young person following risk assessment;
iii. a review of all relevant documents is to be conducted and if continued separation is authorised, there is a requirement that the incident form be signed after each period of two hours;
iv. the young person's needs for food, drink, medical services, reading materials and fresh air all must be met; and,
v. the Deputy Director must be consulted where there is a request to authorise separation beyond an eight-hour period. The attempts made to resolve the issues/behaviour and the need for separation to continue beyond the eight-hour period must be explained in accordance with the records maintained and other relevant paperwork. A review of the authorised separation must be undertaken each morning by the Deputy Director.
The Director reiterated that the appellant was placed on separation in accordance with the policy to ensure his own safety, the safety of other residents and the general security on the campus.
In a comprehensive written judgment delivered on 3 May 2019, [2019] IEHC 275, Simons J. dismissed the appellant's application for judicial review. After outlining the factual and procedural background of the case, the trial judge turned to consider the evidence adduced on behalf of the appellant, observing at para. 20 that following S.F. (a minor) v. Director of Oberstown Children Detention Centre, “the determination of whether separation measures represent...
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‘Schools with Security’: Pitfalls in Pursuit of the Penal Detention of Children in Ireland and England
...on the use of segregation in young persons’ detention in England and Wales, see Stone (2020). 17. See also: M. v. Director of Oberstown [2020] IECA 249 which dismissed a detainee’s application for judicial review of separation measures following indiscipline, deemed by the Appeal Court to h......