M v The Child and Family Agency; B v The Child and Family Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 13 October 2023
• Neutral Citation: [2023] IEHC 559
• Court: High Court
• Docket Number: [2023 1024 JR]

In the Matter of M Born on the [Date] of September 2007

and

In the Matter of Article 40.3 and Article 42 a of the Constitution

and

In the Matter of the Childcare Act 1991 (As Amended) and The Inherent Jurisdiction of the High Court

Between

M (A Minor Suing through Her Guardian Ad Litem and Next Friend Helen Tully)

Applicant

and

The Child and Family Agency

First Named Respondent

and

MM

First Named Notice Party

and

MMM

Second Named Notice Party

In the Matter of B (A Minor Born on the [Date] of February 2007

and

In the Matter of Article 40.3 and Article 42 a of the Constitution

and

In the Matter of the Childcare Act, 1991 (As Amended) and The Inherent Jurisdiction of the High Court

Between

B (A Minor Suing through His Guardian Ad Litem and Next Friend Francis O'Callaghan)

Applicant

and

The Child and Family Agency

First Named Respondent

and

BB

First Named Notice Party

and

BBB

Second Named Notice Party

[2023] IEHC 559

[2023 1024 JR]

RECORD NO 2023 / 1025 JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Mark Heslin delivered on the 13 day of October 2023

Two applications were heard together, on an urgent basis, on 5 October 2023. The circumstances of each child-applicant are different, but the legal issues are the same in both. For reasons which will become obvious, this court has attempted to minimise delay with respect to a decision.

Introduction

1 . In the manner presently explained, both applicants are children, aged 16, who meet the criteria for admission to special care. The respondent does not suggest that special care is not what both children need. The respondent acknowledges that it is in breach of its statutory obligations pursuant to the Childcare Act, 1991 (as amended) (“the 1991 Act”). In particular, the respondent concedes that it was obliged to make a “ determination” pursuant to s. 23 (F) (7) of the 1991 Act. Furthermore, the respondent concedes that it is in breach of statutory obligations pursuant to s. 23F (8) of the 1991 Act given its failure to “apply” to this Court for a special care order.

2 . The respondent contends that the appropriate response by this Court should be limited to the making of declaratory orders reflecting these admitted breaches of statutory duties. However, the respondent is strongly opposed to the court granting any mandatory orders which would require the respondent to comply with its statutory obligations. The respondent argues that mandatory orders would be impossible to comply with; would be futile for the court to make; and would be of no possible benefit to the applicants. Why the respondent adopts this stance was pleaded, as follows, in each statement of opposition:-

“ Due to capacity and staffing challenges within Special Care, the Agency is currently unable to provide a specific timeframe as to when the Agency will be in a position to make an application to have [the Applicant] admitted to Special Care.

This is despite every effort being made by the Agency to address these capacity and staffing challenges. The Agency is continuing to engage in comprehensive care planning regarding [the Applicant] in order to manage and mitigate against any potential risks while [the Applicant] awaits admission to Special Care” (see paras. 5 and 6 of the statement of opposition in respect of the application brought by M, which mirrors, precisely, the pleas at paras. 6 and 7 in the statement of opposition in respect of the application brought by B).

3 . Before proceeding further, I want to express my gratitude to counsel for the applicant, respondent and notice parties, respectively, each of whom made oral submissions with great clarity and skill, supplementing detailed written submissions, all of which I have carefully considered. During this judgment I will refer to the principal submissions made. For present purposes it is sufficient to say that the notice parties, through their respective counsel, emphasised their serious concerns for the child in question and, in each case, support the applications, i.e. contend that this court should make appropriate mandatory orders, in addition to declaratory relief.

Pleaded relief

4 . In addition to reporting restrictions; the appointment of a Guardian ad litem (“GAL”); and leave pursuant to O. 84, r. 20 (items 1 to 3, inclusive) the relief sought, from item 4 onwards of para. (e) of the applicant's statement of grounds, is as follows:

“4. A declaration that the decision of the respondent to defer making the determination pursuant to section 23F (7) of the Childcare Act 1991 (as amended) until a place in special care is available, despite having considered and approved that the applicant meets the criteria for special care under section 23 of the 1991 Act, is in breach of its statutory duties and is unlawful.

5. An order of certiorari quashing the decision of the respondent to defer its duty to comply with the provisions of section 23 of the 1991 Act as amended by part IVA of the Childcare Act 1991 in respect of the applicant, pending a placement in special care becoming available for [the applicant].

6. If necessary, an order of mandamus directing the respondent to determine (in accordance with section 23F (7) of the Childcare Act 1991 as amended) whether [the applicant] requires special care.

7. Further, if necessary, an order of mandamus directing the respondent to make an application for an order placing the minor in special care if it determines that the child requires such care under section 23F (7) of the Childcare Act 1991 as amended.

8. A declaration that the respondent has failed in its continuing duties and obligations to provide appropriate care and accommodation to the minor in accordance with its statutory duties and in particular its duties pursuant to the Childcare Act 1991, as amended, and of Bunreacht na hEireann, in particular Articles 40.3 and 42A thereof.

9. Further, if necessary, an order of mandamus directing the respondent to provide appropriate care and accommodation to the minor in accordance with its statutory duties and in particular its duties pursuant to the Childcare Act 1991, as amended.”

Para. 4 of each Statement of Grounds goes on to seek relief by way of an early return date; damages; further or other relief; and costs (items 10 to 13, inclusive).

The ‘net’ dispute

5 . It is fair to say that the hearing before me centred around relief in the following terms:-

• • a declaration that the respondent has breached the statutory obligations imposed upon it by s. 23F (7);

• • a declaration that the respondent has breached the statutory obligations imposed by s. 23F (8);

• • a mandatory injunction requiring the respondent to comply with its statutory obligations per s. 23F (7); and

• • a mandatory injunction requiring the respondent to comply with its statutory obligations per s. 23F (8).

The 1991 Act

6 . To understand relevant statutory provisions in context, it is appropriate to make reference to Part IVA of the 1991 Act, which sets out the regime for the bringing of all applications for special care.

Duty to provide special care / special care units

7 . Section 23B begins in the following terms:

“ Provision of special care and special care units.

23B.—(1) The [Child and Family Agency] shall provide special care to a child in respect of whom a special care order or an interim special care order has been made for the period for which that special care order or interim special care order has effect.

(2) The [Child and Family Agency] shall not detain a child in a special care unit unless the detention is pursuant to, and in accordance with, a special care order or an interim special care order made in respect of that child or the High Court has otherwise ordered.

(3) The [Child and Family Agency] shall—

(a) provide special care units, and

(b) maintain and administer special care units provided by it under paragraph (a),

and shall comply with regulations, if any, made under the Act of 2007 in relation to special care units and standards, if any, set out under section 8(1)(b) of the Act of 2007.. (emphasis added)

The use of the word “shall” in s.23B makes clear that the respondent is mandated to provide special care in “ special care units”.

Special care

8 . The definition of “special care” is given in s23C, as follows:

“ 23C.—In this Part “special care” means the provision, to a child, of—

(a) care which addresses—

(i) his or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare, and

(ii) his or her care requirements,

and includes medical and psychiatric assessment, examination and treatment, and

(b) educational supervision,

in a special care unit in which the child is detained and requires for its provision a special care order or an interim special care order directing the [Child and Family Agency] to detain the child in a special care unit, which the [Child and Family Agency] considers appropriate for the child, for the purpose of such provision and may, during the period for which the special care order or interim special care order has effect, include the release of the child from the special care unit—

(i) in accordance with section 23NF, and

(ii) where the release is required for the purposes of section 23D or 23E, in accordance with section 23NG.”

Determination that a child requires special care

9 . Section 23F of the 1991 contains, in relevant part, the following provisions:-

“ Determination by [Child and Family Agency] that child requires special care.

23F.—(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.

(2) Where—

(a) the [Child and Family Agency] is satisfied that there is reasonable cause to...