S.S. (a minor suing by his guardian ad litem and next friend, M.L) v The Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 15 June 2007
• Neutral Citation: [2007] IEHC 189
• Court: High Court
• Docket Number: [2005 No. 90M]
• Date: 15 June 2007

[2007] IEHC 189

THE HIGH COURT

[No. 90M/2005]

HEALTH SERVICE EXECUTIVE (SOUTHERN AREA) v S (S) (A MINOR)

IN THE MATTER OF S.S (A MINOR)

AND IN THE MATTER OF ARTICLE 40.3, ARTICLE 41, AND ARTICLE 42

OF THE CONSTITUTION

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964

AS AMENDED

BETWEEN

THE HEALTH SERVICE EXECUTIVE (SOUTHERN AREA)

PLAINTIFF

AND

S.S. (A MINOR) REPRESENTED BY HIS GUARDIAN AD LITEM AND NEXT FRIEND M.L.

DEFENDANT

AND

M.S., S.C., AND THE SPECIAL RESIDENTIAL SERVICES BOARD

NOTICE PARTIES

CONSTITUTION ART 40.3

CONSTITUTION ART 41

CONSTITUTION ART 42

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

D (D) v EASTERN HEALTH BOARD UNREP COSTELLO 3.5.1995 1995/7/1981

CHILD CARE ACT 1991 S3

CHILD CARE ACT 1991 S4

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001 5 1050

CHILDREN ACT 1997 S3

CHILDREN ACT 1997 S24

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

G v BORD UCHTALA 1980 IR 32

G (D) v EASTERN HEALTH BOARD 1997 3 IR 511 1998 1 ILRM 241 1998 7 1838

AG v X 1992 1 IR 1

CONSTITUTION ART 42.5

N (F) v MIN FOR EDUCATION 1995 1 IR 409

D (G) v IRELAND 2002 35 EHRR 1153

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.4

BOUAMAR v BELGIUM 1989 EHRR 1

PEOPLE (DPP) v SHAW 1982 IR 1

N v HEALTH SERVICE EXECUTIVE (HSE) & ORS UNREP SUPREME 13.11.2006 2006 IESC 60

MESKELL v CIE 1973 IR 121

KOLANIS v UNITED KINGDOM 2005 1 MHLR 238

P(S) v EASTERN HEALTH BOARD UNREP GEOGHEGAN 27.7.1995 (ex tempore)

CHILDREN ACT 2001 PART III

CHILD CARE ACT 1991 S23

DPP (MURPHY) v P (T) 1999 3 IR 254

KONIARSKA v UNITED KINGDOM 12.10.2000 CASE NO 33670/96

N v HEALTH SERVICE EXECUTIVE (HSE) & ORS UNREP SUPREME 13.11.2006 2006 IESC 60

RE G (CARE: CHALLENGE TO LOCAL AUTHORITY'S DECISION) 2003 EWHC 551 (FAM)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

MCMICHAEL v UNITED KINGDOM 1995 20 EHRR 205

RE X BARNET LONDON BOROUGH COUNCIL v Y & X 2006 2 FLR 998

CHILDREN ACT 2001 PART II

CHILDREN ACT 2001 PART IV

CHILD CARE ACT 1991 S23(b)

MENTAL HEALTH ACT 2001 S25

HAUGHEY, IN RE 1971 IR 217

JOHANSEN v NORWAY 1996 23 EHRR 33

OLSSON v SWEDEN 1988 11 EHRR 259

CONSTITUTIONAL LAW

Child

Personal rights - Nature of child's constitutional rights -Duty to provide secure accommodation and treatment - Detention in secure unit -High Court - Jurisdiction - Inherent jurisdiction - Whether circumstances exist to invoke inherent jurisdiction of High Court - Whether High Court in exercise of inherent jurisdiction could make order for long term detention in secure care of minors - Whether long term detention in secure care was required in interests of education and welfare of minor - Whether procedural safeguards should be put in place for protection of rights of minors and parents and needs of family unit - Duration of detention - Whether any rationale for further detention of minor in secure care - Constitution of Ireland, 1937, Articles 40.3, 41 and 42 - European Convention on Human Rights Act 2003 (2005/90M - MacMenamin J - 15/6/2007) [2007] IEHC 189

S(S) v Heath Service Executive

This case dealt with two issues of law relating to the welfare of a 15 year old boy. Essentially, the court considered whether in the exercise of its inherent jurisdiction it could make an order for the long term detention in secure care of minors, where on the evidence such care was required in the interests of the education and welfare of such minor and if the court could so order, then what procedural safeguards should be put in place for the protection of the rights of such minors and their parents and the needs of the family unit under the Constitution and the European Convention on Human Rights Act, 2003. The view expressed by the child's guardian ad litem and his mother was that it was necessary for his welfare and protection that he be detained long term in some form of secure unit. However, there was no one unit in existence that appeared entirely appropriate to deal with the child's many difficulties.

Held by MacMenamin J. : That in the exercise of its inherent discretion this court must observe the principle that an order for placement of a young person in secure care to protect their life, health or welfare when seriously at risk, can only be made on a short term basis. Furthermore this jurisdiction must only be exercised in an exceptional case. It is clear from previous judgments, that in order to comply with rights under the Convention and the Constitution the rationale for an order for detention must be clearly identified, must have a therapeutic or welfare purpose, and be exercised only in circumstances where it is for the minimum duration. The jurisdiction to detain a minor may only be exercised on an interim or interlocutory basis and only, with regular review by the courts. Any categorisation of secure care into "short" and "long" term stays would be necessarily subjective.

Reporter: L.O'S.

1 Mr. Justice John MacMenamin delivered the 15th day of June, 2007.

2 This judgment is circulated in redacted form to avoid identification of the parties

3 1. At the conclusion of these proceedings on the 10 ^th day of May, 2007 I delivered judgment on two discrete issues of law which had been identified for determination. I indicated that the reasons for that decision would be furnished later. I now do so.

4 These issues were:

5 (a) whether the High Court, in its exercise of its inherent jurisdiction can make an order for the long term detention in secure care of minors, where on the evidence such care is required in the interests of the education and welfare of such minor and

6 (b) if the answer to (a) above is yes, then what procedural safeguards should be put in place for the protection of the rights of such minors and their parents and the needs of the family unit under the Constitution and the European Convention on Human Rights Act, 2003.

7 It is first necessary to consider the factual context in which these issues fall for determination.

Background

8 2. S.S., the minor the subject matter of these proceedings, was born in 1991. At the time of the judgment herein he was aged 15 years, but close to his 16 ^th birthday. His deeply troubled childhood and adolescence have left ongoing emotional and psychological scars. Such home or family unit as S.S. ever had have simply disintegrated.

9 3. S.'s mother (M.S.) and father (S.C.) live apart. The couple themselves had two children, both boys. At no stage has S.'s father played any significant part in his upbringing. His whereabouts are unknown. He is involved in another relationship. The parents by now have been parted for many years. Their relationship was always poor. They never married. As well as his one full brother S. has two half brothers who were born after his father left his mother.

10 4. The family was always in close contact with the social services. They lived on a halting site. There were concerns about domestic violence. S.'s mother herself was frequently in poor mental health. The parents separated more than once. S. himself at one stage went to live with his grandmother. This had most unfortunate consequences. He became the victim of sexual abuse. He returned home in March 1995. His mother suffered further periods of depression. She suffered harassment from neighbours. From early 1998 onwards all her children attended respite placements once a month.

11 5. In the year 2000 S's mother (Ms. S.) began a relationship with a neighbour. That man's wife found out. She physically assaulted Ms. S. She fled to another city with three of her sons, leaving one of S.'s brothers behind.

12 6. By 2002, the family were homeless. S.'s mother was unwilling to consider the option of going to a refuge with her children. Over the years care orders had been made in the District Court at various times regarding her sons with S.C. and her other sons, the younger of whom was born in 2003.

13 7. S. has been involved in excess of 30 moves in his life. As well as the short periods with his mother and grandparents, these include both foster placements and residential care in a number of units run by the H.S.E. Unsurprisingly this unfortunate young person, who has seldom, if ever, never known a settled house or family, has been described as having an "attachment disorder" due to an inability to form any close bond with any carer. He has been in and out of care since he was six years of age.

14 8. Efforts have been made over the years to place S. with foster parents. On each occasion such placements broke down as the foster parents felt unable to cope with S.'s disruptive behaviour.

15 The period in the custody of his grandparents had the result identified earlier.

16 9. When in care, S. consistently engaged in what is termed "challenging behaviour"; acts of violence and intimidation against staff members in the various units in which he was placed. While in the community he threatened members of the public, and acted inappropriately continuously. He inflicted damage to property on numerous occasions.

17 10. S. suffers from a number of psychological problems. His intelligence is less than normal. He has attention deficit disorder, engages in 'oppositional behaviour', including assaults on social workers and other carers. He frequently places his own life at risk. He has a history of cannabis abuse. It is believed that he has also been abusing cocaine.

18 11. Within the last two years S. was first placed in a high support unit. He absconded from there on numerous occasions, and lived rough in derelict buildings. He was the subject of further predatory sexual abuse from male adults who preyed on him.

19 12. Between 5 ^th October, 2005 and 12 ^th May, 2006 S. was...