High Court finds failure of CFA to seek special care order was unlawful – 2019vol2#2

In a judicial review held in May 2019 the High Court found that the decision of the Child and Family Agency (CFA or Agency) to defer the making of an application for a Special Care Order until a place was available for a child who met the criteria for such an order was unlawful. This followed an earlier judicial review which found that the failure of the CFA to make a special care application for the same child was unlawful.

The applicant (the child), through his guardian ad litem (as next friend) sought a relief requiring: “a declaration that the decision and/or policy of the respondent [the Child and Family Agency] to defer the making of an application for a Special Care Order in the High Court in respect of the applicant, as required pursuant to s.23F(8) of the Child Care Act 1991 as amended, until a place is available, despite having made a determination pursuant to s.23F(1) and (7) that the applicant requires special care, is unlawful”.

The barrister for the guardian ad litem (GAL) set out the background to the case at the start of the proceedings. He told the court that the net issue of law concerned the statutory obligations of the CFA for those not merely in care but whose vulnerabilities and need for care and treatment are such that they require special care, a form of secure care, the distinguishing feature of which was the deprivation of liberty. What defined secure care was a very high level of need on the part of the child for stable care and treatment.

This case involved a teenage boy who had come into the care of the State under an interim care order (ICO) in late 2017. Then in late 2018, it came to the attention of the professionals involved in his care in his residential placement that in fact he would need special care. The matter was listed before the District Court in 2018 on the application of the GAL for the purpose of seeking direction in his care. During those proceedings the GAL was told that an application had been made by the social work department to the National Referral and Applications Committee.

Counsel for the GAL told the court that the key section of the Child Care Act 1991 (CCA) was 23F, including subsection 2a:

Where the CFA is satisfied that there is a reasonable cause to believe that the behaviour of the child poses a real and substantial risk of harm to his or her life, health, safety, development or welfare,

and 23F(8):

Where the CFA determines that there is reasonable cause to believe that for the purposes of protecting the life, health, safety, development or welfare of the child, the child requires special care the CFA shall apply to the High Court for a special care order.

“It says plainly on its face that where the CFA makes that determination it shall apply to the High Court for a special care order,” said counsel.

In December 2018, the National Special Care Referral Committee made the decision that the boy fell into the special category of need for secure care, this committee consisted of a variety of professionals with the benefit of an independent chairperson. The committee receive reports from the various people involved and bring their expertise to bear on whether the child fell into the special care category.

However, it was the position of the CFA in December 2018 that the formal determination under 23F(7) for an application under 23F(8) of the CCA to secure care was made by the service director for the CFA and not by the National Special Care Referral Committee.

The service director declined to make the formal determination in December 2018 pursuant to 23F(7), stating that the CFA was not in a position to make a place available in special care. A formal determination would have triggered the application to the High Court under 23F(8). This was judicially reviewed over the Christmas vacation in 2018 and in a judgment on 28th of January 2019 Judge Faherty determined that it had been unlawful for the service director to refuse to make the determination.

On February 6th the service director made the formal declaration pursuant to 23F(7), however the CFA did not make an application to the High Court for a special care order pursuant to 23F(8), declining to do so again for the same resource reasons in a letter to the GAL on February 11th, “as there are currently no vacancies in secure care”. They expressed the statutory obligation to be found in section 23F(8) in the following terms: “The Agency confirms that it will in accordance with its statutory obligation pursuant to the CCA 1991 as amended, apply for a special care order for [the child] as soon as is reasonably practicable.”

A notice of motion was filed on February 25th for leave to grant a judicial review hearing of the matter, returnable on the 28th of February following which there was a short exchange of affidavits.

The issue of mootness

The complicating feature in the case now, said counsel for the GAL, was that on March 5th the National Special Care Referral Committee purported to decide that the child no longer met the criteria for special care and for this reason the CFA now stated that these judicial review proceedings were moot.

Counsel for the GAL pointed out that the CFA had taken the position in the first set of proceedings that the National Special Care Referral Committee were not the decision-making body and the decision of the service director could not be undone. However, it now seemed that the CFA’s position was that the National Special Care Referral Committee could decide that the child no longer fitted the criteria for special care.

Furthermore, the CFA had now taken the position that the judicial review proceedings were moot because they were unable to make an application for secure care as the child did not meet the criteria. Counsel for the GAL submitted that the argument on mootness depended on the decision and its validity on March 5th, that decision was contested as well as the authority of the decision maker, the reasons leading to the decision and the rationality of it. It was a hotly contested decision.

The High Court had already found that in the first set of JR proceedings the delay in the decision of the responsible official was unlawful, therefore the application to the High Court should have been promptly made in February as the service director made the formal decision on February 6th. This would have meant the child could have had the care and treatment that he needed and was not otherwise getting and to allow a mootness argument was to allow the CFA to profit from their unlawful delay.

Counsel told the court that mootness was really about cases that had become hypothetical or academic. This child was very vulnerable and troubled with an extremely high need for care and treatment. Even if the case had now fallen below the threshold of need it had done so in a situation where it was previously above that threshold. For three months the child was in need of and not getting secure care, therefore even if one took the view that he did not meet the threshold at the moment there was no possible basis for being satisfied that he may not need it in the morning or next week.

There was evidence on affidavit before the court that the child remained vulnerable and so the issues could well become live in a short period of time. There was a real danger of further time being lost and wasted if the court did not grapple with the issues at this stage. “This child was not the only child who may need special care, this is the classic case in which there is a very real public interest in the very real statutory duties of the CFA,” said counsel for the GAL.

Counsel for the CFA told the court that it was the position of the CFA that it “cannot apply for a special care order without the availability of a placement for a child, there is a problem with attracting staff into the system, it is a difficult area to work in,” this was set out in the affidavit. This lack of availability of a placement had led to the first two JR proceedings in this case, to compel the CFA to make an application to the High Court.

Prior to the determination being made on February 6th, the National Special Care Referral Committee was still of the view that the child satisfied the criteria. On February 19th the Committee wrote to the social work team saying there appeared to be an improvement in the child’s presentation and they expressed a concern to the team that he may no longer satisfy the criteria. The team were asked to give a detailed report and address the requisite legislation regarding secure care. A professionals’ meeting was called on March 1st in relation to the request by the National Special Care Referral Committee for updates and to address the concern that the teenager may no longer meet the criteria. The meeting was attended by the GAL.

On March 4th the social work team sent in a detailed report to the National Special Care Referral Committee which was also sent to the GAL. The Committee then met by teleconference on March 5th and decided formally that the child no longer satisfied the criteria for special care, giving rise to this second set of JR proceedings where the GAL challenged the decision on the basis that he was not heard, that the decision was effected without notice.

Counsel for the CFA submitted there was no basis for this and furthermore, the last decision of the Committee had rendered the first set of proceedings moot and unlawful for the CFA to make such an application as section 23F(1) prohibited them from making an application unless it was satisfied the criteria were met:

23F(1): The CFA 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.

Counsel for the CFA told the court that the first set of proceedings were rendered moot by the intervention of the decision on March 5th and also on the up to date position of the child. The CFA could not be directly or indirectly brought by the High Court to make an application for the child. The second set of proceedings was also moot as the child no longer satisfied the criteria. There was no live controversy before the parties and no practical benefit to the child in entering into a hearing of the substance of the JRs.

While there was a jurisdiction for the court to enter into a consideration in having a JR it had to be under exceptional circumstances and there were none in this case. If in the future the child needed a decision made in relation to secure care then that decision would be made under the Act [CCA]. If the Agency acted unlawfully the High Court was there but it could not make a decision in case controversy happened in the future.

Ultimately the court was advised by the parties during the proceedings that it had been agreed the second set of proceedings did not require to be considered by the court.

In relation to the first set of proceedings, counsel for the father and the barrister for the mother (notice parties to the hearing) cited case law, referring to the Supreme Court decision in SMcG & JC v. Child and Family Agency [2017] 1 I.R. where Judge MacMenamin dealt with mootness, and where in his judgement Judge Charleton acknowledged that a discretion exists to hear a moot appeal in particular where the situation is capable of repetition.

Counsel for the father told the court that they wanted a declaratory relief that what had happened was unlawful. The child’s father was upset that his child did not get what he believed his child was entitled it had had effects on him and could have even more serious effects.

The barrister for the mother argued that the first set of proceedings were not moot, while the child was doing well he may in the future require secure care, this issue was affecting other children in the system therefore a live controversy remained and it fell within exceptional grounds. How was s23F(8) to be applied by the Agency in all of these cases? It was an issue that needed to be considered on a substantive basis because by the time the court got to it the problem was being considered by the CFA as moot, therefore it was a time issue.

The judge remarked that Judge Faherty had found in her decision of January 2019 that not applying to the High Court was wrong, “so surely the second failure must be considered equally wrong?”

Counsel for the CFA disagreed and said what was at issue in these proceedings was if the CFA were required to immediately apply to the High Court or not under section 23F(8).

“What is wrong with dealing with the issue now of not applying, grasping the nettle?” asked the judge.

“It has to be a live controversy,” replied counsel for the CFA, “there is no live controversy, and no practical benefit to come from the proceedings, the only outcome could be an advisory judgment that if the situation does arise that the CFA will bring appropriate proceedings.”

“At the same time,” said the judge, “if it was unlawful not to apply, does he not have an interest in having that determined?”

“I don’t accept that he does, there has been an improvement since February 6th 2019, the GAL is of the view now that he doesn’t require it, there are lots of statutes that require to be interpreted but the court’s function is not to interfere unless there is a live controversy …. the circumstances here are not exceptional, the point here can be raised by the appropriate applicant in future cases, if it arises again.”

He also put it to the court that parents could not litigate a systemic matter given the passage of time.

Senior counsel for the GAL told the court that there would be another deeply troubled and at-risk child and the substance of that case would be no different to this case and therefore public interest was engaged. The law was in a state of uncertainty.

The judge found in relation to the issue of mootness that section 23F(8) should be considered in the best interests of the child and that the public interest was involved.

Later in her judgment she noted that: “If the understanding of the relevant section by the CFA is incorrect this would result in a procedural flaw having ongoing effects not only potentially on the applicant who is currently aged 16 but also on other cases and therefore a determination on the issue is in the interests of the proper administration of justice. Furthermore because of the volatile behaviour of the applicant I am satisfied that an application for secure care is capable of repetition and accordingly the section should be considered in the best interests of the child.”

She then went on to consider the substance of the judicial review.

The judicial review of the CFA decision

The key relief sought by the applicant was a declaration that the breach of statutory duty in failing to apply to the High Court pursuant to 23F(8) of the CCA, and the decision to defer the making of the application until a placement was available, were unlawful.

The child first came to the attention of the child protection services in 2010 in the domestic context arising out of the relationship of the parents. The child left home in 2015 and had been living with an uncle under a private family arrangement but that situation deteriorated after nearly a year and he was placed with a foster family. The GAL made recommendations for a psychological assessment of the child. In early 2018 an emergency foster placement had to be found due to placement breakdown and following on from this the teenager moved into a residential placement.

He was found to be a vulnerable young person with complex needs and challenging behaviours, including causing property damage and injury to people. He was verbally aggressive towards professionals. Therapeutic interventions were required but lacking. In September 2018 his GAL had a conversation with his social worker about making an application for special care and she agreed it was warranted, there had been long periods of absence from school and an arrest for an alleged offence of attempted burglary, there was also an increase in criminal activity.

In December 2018 an extension was made in the District Court to the interim care order for the child. During the hearing the social worker told the court that the only viable option to address the child’s behaviour was secure care. The team agreed that the CFA would make an application to the National Special Care Referral Committee. The following day the teenager was discharged from his residential placement due to the placement breaking down and the Committee found he fulfilled the criteria for special care due to his complex needs and challenging behaviours.

The National Special Care Referral Committee sent their referral to the service director for the formal statutory determination. Although the boy had been found to meet the criteria he remained on the waiting list for secure care from early December 2018 during which time several other places were allocated to other children.

A judicial review was then brought on behalf of the child in February 2019 as requiring secure care pursuant to section 23F7 of the CCA, and the High Court granted a declaration on February 5th that the refusal to apply for secure care was unlawful.

On 6th February the service director made the determination in accordance with 23F(7) but notwithstanding that formal determination, an application was not made to the High Court under subsection 8. In a letter of 11th February 2019, the CFA indicated that an application would not be made as there were no vacancies in secure care for the child. The letter, written by a CFA solicitor also stated that the application to the High Court would be made “as soon as is practicable.”

This was the practical reality of the limited resources of secure care, said counsel for the GAL, and was what used to happen when applications for secure care came under the inherent jurisdiction of the High Court prior to the court operating under statute.

“When you look closely at this letter and you read that the allocated social work team will continue to work closely with the minor when you know the child is not engaging with his social worker you know it doesn’t really mean very much. When the child isn’t engaging all of that effort can come to nought. That’s precisely what the statute envisages, that no other form of care and treatment is necessary,” said counsel for the GAL. He said that a “form of queuing system operates within the four walls of the CFA, a High Court approach would not be the same, the High Court has to focus on the best interests of the child, individually.”

The GAL had responded on February 14th to the letter from the CFA and had stated that the failure to apply to the High Court under section 23F(8) was a breach of its duties as this was a mandatory obligation. Under section 23B the CFA were mandated to provide secure care units and maintain and administer those units. The CFA were informed that if they did not indicate a timeframe for application by return of letter there would be no alternative but for the GAL to instigate High Court proceedings.

The CFA responded on February 19th that the position had remained unchanged to that set out in the previous letter of February 11th 2019.

The National Special Care Referral Committee met on February 19th and asked for a report in order to be reassured that the child continued to meet the criteria for secure care which brought into question the rationality of the decision not to make the application to the High Court in due course.

On the 22nd of February the GAL was informed that the National Special Care Referral Committee were concerned that the child did not continue to meet the criteria for special care. “No secure care has deprived the child of appropriate care,” said counsel for the GAL, “with a drastic increase of risk to the child, the longer the delay the worse his behaviours will become, he does not have the skills to abstain from these behaviours.”

There were three secure care units within Ireland containing between the 26 places, however human resource issues meant that 12 beds were not available, the court heard. The profile of the children in the units was aged between 11 and 17 with different psychological profiles. There was a difficulty in recruiting staff to work within the units.

Some of the children were in the youth justice system, they had attachment difficulties, psychological difficulties, there were children who had been physically, emotionally, and sexually abused. There were children who self-harmed and had suicidal ideation, these risk profiles created a difficult task for those caring for them, said counsel for the GAL. Their behaviours could result in assaults on staff, property damage and absconding. “The Agency does not have access to psychiatric services in its own remit which presents its own challenges, it relies on the HSE to provide supports to the units…

“One could reasonably make the point that the [number of] staff working in the system is reflective of the scale of pay.”

An affidavit from the Service Director of the CFA was read out by counsel for the CFA which gave an explanation of the role of the National Special Care Referral Committee. “The Agency established the National Special Care Referral Committee, chaired by an independent chairperson, to ensure its decisions and decisions as to prioritisation of children are made by experienced and objective professionals” it stated.

“The social workers make a referral to the Committee, it makes the decision and then an appropriate recommendation to the Service Director. The assessment rests with the Committee which is based on the risk profile and assesses the level of priority of each child on the list and their related needs which may change at any time. The allocation of special care places is a specialised decision based on a multi-disciplinary input.

“The courts are particularly ill suited [to make such decisions] the Committee has the flexibility and [the cases] are under constant review, the task of prioritising one over the other should not be underestimated. The Act is now the determining document for the Committee.”

The affidavit went on to say that where an application to the High Court had not been made under section 23F(8) the High Court would be informed of this decision and the grounds for same.

Only mandated members of the CFA could make an application for special care intervention. Counsel for the CFA described the current challenges within the special care system. He said that there were 14 beds available out of 26, physical staffing was required at all times within special care units, for example 32 staff were needed for a four-bed unit, and six social workers. Thirty-four referrals had been made to secure care in 2018 with 19 admissions to secure care and five pending. Each child’s circumstances were compelling and had been assessed to meet the criteria of special care as more acute than the child in these proceedings.

Special care was unable to operate on full capacity because there were insufficient numbers of suitably qualified staff, this was because people were either unwilling to work in the area in the first place or to remain working in it.

The Agency had for some time experienced significant difficulty in recruiting staff, it was not seen as an attractive employment opportunity, staff retention was a problem as well as aging staff who were retiring. Thirty-three social care staff had left since 2018 alone. Staff were at risk of physical injury, there had been 277 incidents of restraints and 371 staff injuries in 2018, some of which included serious physical assaults. Due to assaults on staff 217 calendar days had been lost, some staff remained out of work on the basis of injuries and some staff may never return due to injuries received. Out of 33 staff who had left their jobs in special care reasons given were the extremely stressful nature of the work, trauma as a result of their work and assaults.

Roster inflexibility was also a problem for staff members but the Agency were making extensive efforts to maintain staff. A new model of care across special care called the Welltree model had been introduced and in 2018 the issue of step-down placements had been reviewed, the terms of reference of which were extended by the CFA and a report, Transitioning In and Out of Special Care, had been carried out by the CFA.

In 2018, 25 staff members from special care had resigned, two had taken career breaks and one had retired. There was a rolling recruitment campaign on the CFA’s website but the recruitment drive had limited effectiveness, 161 people had applied, 76 did not make it to interview, 25 applicants passed to the interview process, four did not attend, six interviews did not proceed, six were still to be interviewed, and one candidate was to be offered a place, 58 offered posts were currently offered within special care.

The Agency were currently working with the Department of Children and Youth Affairs to increase allowances of those working with children in care in order to make it more financially attractive. However, it was exceedingly difficult to recruit staff to the area and it was likely for the foreseeable future that the Agency would experience on-going staff difficulties with staff retention, continued counsel for the CFA.

The nature of the work was the issue and the thrust of the argument [by counsel for the GAL] seemed to be that the High Court should force the application even when the resources were not available.

“We are not saying that,” replied counsel for the GAL, “we are saying once the criteria are fulfilled then the application should be made before the High Court for secure care.”

“The apparent logic of the GAL position could lead to a situation where the needs of this child are prioritised over the needs of the other higher up children on the list.”

“I say this particular child has been identified to be at risk, that application must be brought to the High Court and the High Court to make whatever determination must be made on his behalf,” replied counsel for the GAL.

Commenting on the affidavit of the Service Director and submissions of the CFA counsel, the judge said that while she appreciated the need for the Agency to have those matters put before the court, it did not inform the meaning of the legislation. In her opinion the arguments regarding staff retention, difficulties in recruiting staff and the public service pay agreement should be made before the Oireachtas to explain why the Act is not in accordance with how they saw matters.

Judge O’Regan commented that Judge Faherty had interpreted an immediacy in subsection 7 of 23F of Part IVA the CCA [in the December 2018 JR], and the CFA were “going to have to go an awful long way for me not to see it in subsection 8. You did say you weren’t making the decision until a placement was available, as opposed to making the application.”

The judge said that while she was satisfied the child did not currently need special care, he may need it in the future and she was satisfied there was a public interest in these first set of proceedings.

The position of the GAL in summary was that the language of section 23F(8) was plainly in mandatory language and it was not a discretionary power, this was a statutory provision designed to ensure that a child with very special needs and at very high risk and for whom no alternative means of care and treatment was adequate, secured what he or she needed by the determination of the High Court.

One had to see Part IVA of the CCA in the context of the rest of the Act, all of the Act was written in terms of mandatory obligation.

Senior counsel for the father told the court that he was adopting the submissions given by counsel for the GAL. He told the court the whole point of section 23F(8) was that it was set up in such a way that the application was triggered by timing, ordinary care would not address their situation. The implication is the child has a right to a form of care that will address the situation, the real and substantial risk to their life, health, safety, development and welfare.

Counsel for the father said that in Judge Faherty’s judgment on 23F(7), what was referred to was whether the child required special care, not whether there is special care available or whether there was a bed. “A statutory duty isn’t a statutory duty if time simply goes by, a mandatory requirement might never be satisfied if other people are prioritised, it reduces a statutory duty to a statutory power and removes the entitlement to secure care from this particularly vulnerable cohort of children.”

The barrister for the mother, the second notice party told the court she was also relying on the submissions given by counsel for the GAL.

Responding, counsel for the CFA said that the position of the agency in summary was that there was an acknowledgement that the child had fulfilled the criteria but in the absence of unlimited resources and with the units at full capacity the application could not be made. The Agency was taking all steps within its means to increase the capacity of the secure care units but despite those efforts it was not within their power to increase space. Weekly updates were being given to the National Special Care Referral Committee on the child and they had the specialist knowledge and experience, their discretion should be given great weight and not passed on to the court. The futility point was that proceedings were bound to fail if an application was to be made with no bed available to the child.

The demand in the secure care system had outstripped supply for many years and it was hard to identify a period of time when there were regularly sufficient places to meet demand. The health boards had had to manage a waiting list and as part of that exercise they had always had to manage risk in the community. The management of a waiting list for a public service in the context of special care was not in fact unique and it was hard to think of a public service where there was not some sort of waiting list.

The CFA conducted regular reviews to assess the needs of the children on the list and the list was transparent and forensic, counsel said. These were the features of the system since its inception in the mid-90s since inherent jurisdiction first became active and were also its features since Part IVA and its commencement in early 2018. The challenges it faced now were the same as in those years and all realities were noted to the Oireachtas when it enacted Part IVA of the CAA 2011.

In that context it made perfect sense that the Oireachtas designated the CFA as the body responsible for managing the secure care system and the pressures therein. They did not engage in the exercise of inserting the words “immediate” and “forthwith” and knowing that it made perfect sense they did not add that additional obligation to the CFA in an imperfect system.

The Oireachtas enacted Part IVA knowing the CFA could not predict when a child would require a place in secure care, how many children would and whether a number of beds would be available at any particular time. In that knowledge it imposed a responsibility on the CFA to manage the tension between insufficient places and the number of children requiring places. It was a heavy responsibility but one the Oireachtas imposed on the CFA, it did not intend for that responsibility to be shifted to the High Court.

“I say it’s not an obligation that must be complied with immediately, it is an unspecified period of time, as soon as reasonably practicable,”

“If at all,” remarked the judge.

“I don’t add the words ‘if at all’, Judge. If there’s a time lag and if a child improves then an application cannot be made in those circumstances,” said counsel for the CFA.

“I’m talking about ‘if at all’ in the context of [counsel for the father’s] submission,” clarified the judge, “this child needs secure care, because of the waiting list, if at all.”

“I’m not suggesting it be a mandatory duty without a time limit, not reviewable by the court, that the court can’t enforce, if they’re not complied with within a certain period of time the party has the option of coming to court to have it enforced… what they’re saying is as soon as the determination is made you have to come into court, that is very different from saying there has been a time lapse and a fault of the Agency, effectively it has to be made the following day,” replied counsel for the CFA.

The judge asked, accepting his argument that the wording did not say “immediate”, when did it move from being acceptable to apply for an order to unacceptable.

Counsel said as soon as reasonably practicable. “If the reason an application hasn’t been made is because of a waiting list, it hasn’t been reasonably practicable to apply, that’s the logic of my argument.”

“You say that was envisaged by subsection 8?”

“The case that’s made here is that you must interpret 23F(8) as being immediate or forthwith. I say that mine is the correct interpretation of [the section], whether it’s on a literal or interpretative approach.”

The judge summarised the statement of grounds which referred to immediate as the immediate risk recognised by all parties, the applicant was seeking a declaration that the child’s rights had been breached as there was a passage of 19 days between the making of the service director’s formal determination and the application for leave in respect of the within proceedings (despite the child being assessed as meeting the criteria for secure care).

She summed up to counsel that the argument he was presenting as his statement of opposition was that “as soon as reasonably practicable means as soon as a bed is ready and you are on top of the list.”

“Yes, it could be a consequence of that interpretation,” agreed counsel for the CFA. He said that “as soon as is reasonably practicable is a well-known test and time law in Irish law, is the problem being addressed…if it is a problem that is unresolvable by the CFA is it practicable to put a child in a unit where the staff to child ratio is not there, the circumstances are utterly beyond their control, it is not diligence.”

He went on to say that the articles within 42a of the Constitution imposed an obligation on the State to vindicate the rights of children as soon as reasonably practicable, so the applicant’s interpretation of the CCA was the correct interpretation but the purpose of the Act was to provide a regime of care to children on a systematic basis.

The effect of an interpretation of section 23F(8) that an application had to be made immediately would result in the court having to deal with a number of applications for secure care orders that could not be complied with. This would result in an adjournment of the application or a stay on the order until a bed became available. However counsel submitted that this could not have been the intention of the Oireachtas because when a bed became available and four children required it, how would the process look at deciding which child should get the bed.

“Does the CFA bring an application regarding the child it considers most in need, are the children on the list entitled to be heard by the court when it is deciding whether that child should get the bed or not, or do the CFA ask the judge which of the children should get it? Does the court then have to say, I now have to call in the parties in all four cases to have a contested hearing as to which child gets that bed, that’s what will flow from the interpretation other than what I am contending for,” summarised counsel for the CFA.

He concluded that an interpretation which foisted the decision on the court would be the antithesis of the purpose of section Part IVA and not the intention of the Oireachtas.

The judge replied that his purposive approach did not involve the best interests of the child which she understood to be the purpose of the Act, bearing in mind that by the time subsection 8 was engaged the social work team already believed that special care was warranted. She contended that he was saying that the same words in different subsections had different meanings, “like words have like meanings” she concluded.

Counsel had already argued the case of lack of resources in interpreting subsection 7 in a previous judicial review (106JR) before Judge Faherty and she had rejected that argument.

She said that it really was a resource issue, perhaps more venues were needed and another approach as to staffing.

Counsel said the issue could not be dealt with by opening more venues as it was not due to a withholding of resources or a decision not to use special care, they simply could not get the human resources in and therefore could not open the resources available. “There are 26 beds in special care but only 13 or 14 are open because they only have staff to open that number of beds.”

He added that subsection 7 and subsection 8 were at different stages of the process, 7 was internal while 8 was external, therefore different considerations applied.

The judge replied that it was a big ask to say that two sections side by side should be interpreted differently.

Counsel for the GAL said that it was inconceivable that the Oireachtas would have intended to allow the CFA to sit on the decision and not make the application to the High Court, a regular meeting of the Committee did not go to statutory intention. The immediacy in their submissions was focussed on the risk to the child and on the factual circumstances of the case that the delay in making the application was unlawful. When certain preconditions were met the CFA must do certain things and the High Court must move the application.

Counsel for the father said that it was simply not permissible that a determination be made that a child required secure care and at the end of that no application was made. “The statute means what the statute means whether there is one bed or 26 beds, it can’t be the case it takes on a different meaning because there are more or less beds, if all 26 beds were up and running what would be the interpretation?”

“Shall means shall,” said the judge to counsel for the CFA, “but in your interpretation shall means maybe if I can at all.”

Counsel for the CFA accepted that it was shall and mandatory but there were many instances where shall was as soon as was reasonably practicable.

However the judge remarked that he could not say “top of the list and a bed being available” and turn the argument around as meaning anything but if at all.

In her written judgment, Judge O’Regan concluded that:

“In all of the circumstances I am satisfied that the deliberate and intentional policy of the respondent not to take any steps to apply to the court as per the mandate incorporated within subsection 8 at a time when the requirements of subsections 1 to 7 of s.23F have been fulfilled (based on available placement and priority status) is inconsistent with the meaning of subsection 8.

Further in circumstances where there has been a full compliance with subsection 1 to 7 with a failure to take any step whatsoever in fulfilment of the mandated requirement of subsection 8, for a period of 19 days, without any timescale or explanation connected to the process of such application proffered for the making of the application to the High Court, is unlawful.”

Within her judgment, Judge O’Regan noted that on the issue as to whether or not the proceedings were moot, there was a discretion vested in the court notwithstanding that the issue might be considered moot. In accordance with the judgment of MacMenamin J. in Mc G, if the understanding of the relevant section by the CFA was correct, this would result in a procedural flaw having ongoing effects on the applicant but also in other cases therefore a determination on the issue was in the proper interests of justice.

She also noted that due to the volatile behaviour of the applicant she was satisfied that an application for secure care was capable of repetition and accordingly the section should be considered in the best interests of the child.