T.D. and Others v Minister for Education

CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date25 February 2000
Neutral Citation[1998] IEHC 173,[2000] IEHC 21
Docket Number[1997 No. 461 J.R.]
Date25 February 2000

[1998] IEHC 173


No. 461 JR/97






N (F) V MIN FOR HEALTH 1995 2 ILRM 297




Constitution; childcare; special accomodation for children; judicial review; constitutional obligation on State to provide suitable accomodation for young people; problem of children being sent to Oberstown Remand Centre in circumstances where it was inappropriate and possibly damaging to them; no information as to the numbers of persons requiring facilities of the type in question; whether attempts are being made to rectify the situation; whether the application for judicial review should succeed Held: Progress being made; certain information to be placed before the court to enable the situation to be monitored, such as information regarding the steps being taken to provide adequate facilities; case to be listed for further consideration T.D. v. The Minister for Education - High Court: Kelly J. (ex tempore) - 04/12/1998

The State has a constitutional obligation to provide suitable arrangements to contain and treat unruly children.

For many years, religious orders provided facilities to deal with such children but, with the decline of vocations, the burden of providing such places shifted to the State. The problem had not been addressed by the legislature or executive, so applications began to be made to the High Court as a place of last resort.

The court ordered that it should be kept abreast of developments by affidavits giving details of the outcome of the forthcoming senior managers' group meetings, the number of high-support places provided and required by Health Boards nationally, steps being taken to provide appropriate premises, staff, facilities and funding, the estimated time required for the provision of such facilities, any overall plan to deal with the problem and any other relevant matter.


JUDGMENT of Mr. Justice Kelly delivered ex tempore on the 4th day of December 1998.


The problems of young people and children who, for their own welfare, require special accommodation and therapy are so well known that it is hardly necessary to rehearse them again.


It is now more than 3½ years since Geoghegan J. delivered his judgment in the case of F.N. v. Minister for Health (1995) 2 I.L.R.M. 297. He summarised his decision in the following way:-

"In summary I take the view that the State is under a constitutional obligation towards the applicant to establish as soon as reasonably practicable, either by use of Section 58(4) of the 1908 Act or otherwise, suitable arrangements of containment with treatment for the applicant".


That was the first of many cases in which recourse was had to this Court on the part of needy children. The reason for such recourse was the failure on the part of the other organs of Government to provide any or any adequate facilities to deal with such children.


It is clear from the evidence that I have heard on this application that over a long number of years such children were provided for by homes run by religious orders and congregations. With the decline of vocations to the religious life, these orders and congregations have had to withdraw from the provision of such facilities.


The burden of providing such places has therefore shifted to the State. The State was manifestly ill-prepared for the assumption of such obligations.


The vacuum created by this state of affairs was not filled by legislature or executive and so applications began to be made to this Court as a place of last resort with a view to asserting and enforcing the rights of such young people which were not being catered for as they ought to have been by the other organs of the State.


In the passage which I have just cited from the judgment of Geoghegan J., he expressed the view that the State was under a constitutional obligation to provide suitable arrangements of containment with treatment for the applicant and others like him.


What has happened since then has been set out in my own judgment in D.B. (A Minor Suing by his Mother and Next Friend S.B.) v. The Minister for Justice and Others (unreported judgment delivered 29th July, 1998). I will not repeat what I said there. It is sufficient to record that such was the lack of progress in honouring the declarations made by Geoghegan J. that I felt it necessary to grant a mandatory injunction against the Minister for Health and Children compelling him to proceed to establish a high support facility at Portrane by a specified date. On that occasion I said:-

"It is regrettable that this course has to be adopted. I am, however, satisfied that the Court could not keep faith, either with its own obligations under the Constitution on with the minors with whose welfare it is concerned, unless intervention is made now.

Accordingly, the injunction sought will be granted and I will discuss the form of the Order with Counsel presently.

Before I do so I have to point out that no proposals have been forthcoming as to what is to happen in the short term. If applications continue to be made to Court at current rates, I will continue to be confronted with impossible situations as a matter of regularity for the next four years. That situation should have been at an end by now. I therefore reserve the right to intervene, by way of injunction if necessary, to ensure the provision of a short term solution in any case that requires it".


I am satisfied that insofar as the long term needs of the Eastern Health Board in this sphere are concerned, they will be addressed by the provision of the facilities contemplated at Ballydowd and Portrane. But the problem of what is to happen in the meantime remains.


It was with a view to appraising the position in this regard that I directed information and evidence to be put before the Court from the Eastern Health Board and the Department of Health and Children. I did so because the predictions which I made in July came to pass with great rapidity.


Again, I need not detail the cases which I have had to deal with throughout the Long Vacation and for the first two months of this term. It is enough to record that I have had a number of serious and tragic cases where children have had to be sent to Oberstown Remand Centre in circumstances where that facility is not merely inappropriate for them but is positively damaging to them. In each case the only environment more damaging to them than that one would occur if they were at large on the streets.


It is quite clear that their rights have not been addressed appropriately even though declared by this Court over 3 ½ years ago. The administrative torpor and absence of planning described in my judgment of 29th July, 1998 is largely responsible for this. That is not to deny or underestimate the problems involved in providing these facilities. There could not have been any instant solutions but this Court did not require that impossibility to be achieved. Geoghegan J. required that the facilities in question be provided "as soon as reasonably practicable". Certainly, much more progress ought to have been made than was the case.


Before considering the position as it now emerges in evidence. I wish to one again make it clear that I have the greatest regard for the personnel of the Eastern Health Board and the various institutions which have been called upon to house and maintain these young people. Nobody could envy them their task.


I also appreciate how difficult it is to recruit suitable trained staff to man facilities of the type required. I note with approval that work on this aspect of the problem is already under way with a view to staffing the proposed facility at Ballydowd, which will not of course open for some considerable time yet.


Nonetheless, the interim position remains unsatisfactory. Even now there is no information before either the Department of Health and Children or this Court as to the numbers of young people in the State who require facilities of this type pending the coming on stream of Ballydowd and Portrane.


The Eastern Health Board does have such figures in respect of its catchment area but has no plans to cater for all such persons even on a short term basis. The simple mathematics of the figures put before me show that fifteen to twenty people require to be catered for and there will be eleven places, at a maximum, provided in the short term. Four to five of these have been promised through the good offices of the Southern Health Board and the Mid-Western Health Board. It is, I think, no coincidence that these "possible" places were offered during the hearing of the evidence in the present application. Little or no information has been placed before me as yet on this aspect of the matter.


The evidence of Mr. Collins from the Department of Health and Children leaves me under the impression that at last the urgency of this situation is now appreciated and that steps are under way to address it. Certainly, the present position of the Department, from the point of view of the provision of finances, is a vast improvement on what was the case before. The senior managers group identified by Mr. Collins appears to be suited to apprise the Department of what is needed and how it should be provided. The pity is that it took three months from my judgment in July of this year to even set up this group. One wonders if it would have been set up at all or, if so, how long it would have taken had I not given directions in early October concerning the...

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