High Court oversight of children’s complex care needs – 2019vol2#1

Observations from the Child Care Law Reporting Project by Lisa Colfer and Dr Carol Coulter

January 2020

1. Introduction to Special Care

For over two decades the High Court has been considering the complex needs of an especially vulnerable group of children, those whose behavioural problems are such that they need to be detained in special units for therapeutic and educational purposes. For most of that time the High Court has done so under its inherent jurisdiction, because only this court has the right to detain a child for his or her own protection and welfare. A statutory framework for such an intervention was established by the Child Care (Amendment) Act of 2011, but the relevant provisions were not commenced until January 2018, and these provisions have been in operation for new cases since then. This provides for the High Court to make an interim special care order, or a special care order, where the child’s behaviour requires it. In addition, increasingly the High Court has also had to address issues concerning children who suffer from mental health problems, but who do not come within the remit of Irish mental health legislation and who are not covered by special care provisions, and also children whose needs cannot be met in Irish special care units.

This report contains observations and reflections by the Child Care Law Reporting Project who have attended and reported on special care cases before the High Court on an almost weekly basis for seven years, since 2013. The individual case reports are published on our website www.childlawproject.ie The purpose of this composite report is to draw together trends emerging from the case reports, to summarise and reflect on the key characteristics of the children involved and to shine a spotlight on recurring challenges. It is hoped this report will be of assistance to those who are charged with managing, overseeing and governing the special care system.

Arguably one of the most challenging areas in the child protection system is that concerning special care. Special care cases are heard by the Minors in Special Care List in the High Court on a weekly basis. Special care is often referred to as secure care during proceedings. A review of the cases before the High Court in 2019 shows there are many reasons that can lead to a child being brought under the protection of a special care order, a form of detention that deprives one of liberty. Yet, however many the reasons for detention, the aim of special care is always the same, and that is to protect the life, health, safety, development or welfare of the child.

Special care is provided for under Part IVa of the Child Care Act 1991 (CCA) enacted in 2011, further amended in 2013 and commenced in 2018. Under section 23F(2)(a), the CFA will assess if a child is in need of special care:

Where the Child and Family Agency 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) which provides that:

Where the Child and Family Agency 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 Child and Family Agency shall apply to the High Court for a special care order.

Legally, there must be a therapeutic benefit in order for a child to be given a bed in secure care. Furthermore, the child must be between the ages of 11 and 18 and not have a mental illness within the terms of the Mental Health Act 2001 and therefore not currently meet the criteria for treatment under that Act, which also allows for a child to be detained for therapeutic purposes. A risk of harm to the child must be shown to exist and this is done through the report of the social worker, on affidavit. The views of the child must be ascertained unless it is deemed not to be in their welfare, and the views of the family must be ascertained at a family conference, unless that is also deemed not to be in the best interests of the child. If that is the case then an interim secure care order can be made ex parte. 

All other forms of care have to be deemed unsuitable before access is given to secure care; these forms of care include family care, a foster home either in relative or non-relative care or a residential placement in a unit. The legislation does not envisage a long stay for a child under a special care order. Under sections 23H(2) and 23J, a special care order may be granted for a period of up to three months and may be extended on two occasions.

2. Highly complex cases falling outside of the Irish special care regime

2.1  Secure Care Cases Sent Abroad for Specialist Treatment

The High Court also hears highly complex cases involving severely traumatised and troubled teenagers with extreme behavioural difficulties. In some of these cases, a secure care placement in Ireland was found not to be enough to help them restructure their lives. These children have needed to access highly specialised mental health services in other jurisdictions, particularly the UK.

Previously the High Court made orders for placements in the UK under its own jurisdiction, but under the 2011 legislation there is no longer a mechanism for the High Court to make an order for lengthy placements outside of the State. It has therefore been necessary to bring children into wardship, and once under wardship it is possible for the President of the High Court to make an order to transfer a child outside of the jurisdiction through an Article 56 application under Brussels ii bis. The wardship cases are heard by the High Court under its weekly Wardship list not the Minors in Special Care List.

2.2   Mental Health Cases Sent Abroad

Some of the children sent abroad for treatment in secure care settings would not be eligible for detention and treatment in Ireland under our current legal framework. Under section 9 or 12 of the Mental Health Act 2001, a person can be involuntarily admitted to an approved mental health centre in Ireland and be detained there on the grounds that he or she is suffering from a mental disorder. The term mental disorder includes a mental illness, severe dementia or significant intellectual disability. Certain mental illnesses, including a personality disorder, do not fall within the definition of a mental disorder under the 2001 Act. Hence, these illnesses cannot be the basis to justify an involuntary admission to an approved centre under Irish legislation.

The legal position in the UK differs from that of Ireland. Under the UK Mental Health Acts, a person with a personality disorder can be involuntarily detained and treated in a mental health facility. This means a child with an emerging personality disorder, who is violent and poses a risk to society does not fall under the definition of mental disorder under the Irish Mental Health Act, but does fall within the definition to be treated in a high secure facility in the UK. The law has responded to a gap in the Irish legislation by making a child ordinarily resident in Ireland, who is suffering from mental illnesses which falls outside of the terms of the Mental Health Act 2001, a ward of court to permit their placement in a mental health facility outside of the State.

A child who is placed by an Irish court in a secure facility abroad, for example in the UK, continues to be habitually resident in Ireland and jurisdiction remains with the Irish court, which keeps the case under regular review. However, while in the placement, the child’ s care and mental health treatment is subject to UK law. This has proven problematic given the differences between the two jurisdictions in relation to the legal definition of mental illness, eligibility for involuntary detention, treatment programmes and discharge arrangements.

2.3  Difficulties with Wardship

Wardship can only be granted once two consultant psychiatrists have independently concurred that an individual lacks capacity. An Irish resident child can continue to be a ward of court and treated in a UK facility when he or she turns 18 years of age once the individual is considered to lack capacity. However, once an adult is considered to have capacity he or she can no longer be a ward of court. An issue arises if a child ordinarily resident in Ireland is placed in the UK and becomes well enough when treated to regain capacity once he or she has turned 18. If this happens, the individual is no longer a ward of court, cannot be held in the UK and must return to Ireland. Once back in Ireland, the individual is likely to continue to fall outside of the Irish definition of mental disorder and so cannot be involuntarily detained and treated and may have difficulty accessing appropriate services.

Wardship poses a great difficulty for those children whose parents are attending court reviews because the parents are generally not allowed to become part of the Committee representing the ward, and have to agree to give up all rights over their child in order for the child to get access to the services he or she needs abroad, though the High Court has been sympathetic to parents’ wishes to be involved, and has sought to facilitate them. It is understood however that once the child reaches their majority wardship will no longer be needed if the therapeutic medical intervention has worked and the person has capacity.

3. Characteristics of the children subject to special care orders

Even though detention within the secure care system means the loss of liberty 24 hours a day, the gain is a second chance, or perhaps the only chance these children may get to stabilise themselves with a supported structure of stability and routine, therapy and education. Some of the children have no knowledge of a consistent form of family life and feel abandoned and isolated and lack direction, they speak of having no hope for a future of any kind.

For some, their parents died from drug addiction, for others their parents are homeless and not in contact with the authorities, so they cannot be served notice that their child is in need of care and protection. Others have caring and committed parents who cannot cope with their children’s high level of need. There are children on the High Court’s Minors in Special Care List who have given up on education for over two or three years but they often blend back into the on-site school system seamlessly, their guardians ad litem (GALs) noting in their reports how certain children crave structure and flourish given the chance. “All he wants is a family,” one GAL wrote in her report, however the young teenager’s parents were both dead and he had no one to turn to.

There are teenagers that have been exploited into prostitution and who are already addicted to substances and alcohol and highly vulnerable to physical and emotional abuse. Young teenage boys and girls have come to the attention of services due to prostitution and have spoken of being drugged during sex with older men but have said very little else. There have been secure care cases coming to the attention of the authorities showing evidence of being linked to an underage prostitution ring. Flashbacks in one teenage girl due to post-traumatic stress as a result of sexual and physical abuse signalled a need for mental health care. In some cases, a male family member has been responsible for the sexual abuse. In certain cases, the child may face the additional difficulty of a cultural stigma associated with sexual abuse within their community.

Young people in the secure care system often need to access a myriad of services including child sexual abuse therapeutic centres, clinical psychology, psychiatry, art therapy, drug and alcohol addiction therapy, occupational therapy, speech and language therapy, dieticians, urology, dentistry, and dermatology.

Some teenagers that come into special care need a lot of medical care as well as therapeutic care. Due to chronic neglect there are cases involving high numbers of tooth extractions due to rotten teeth and gum infections. There are teenagers who have had no routine and cannot get to sleep at night because they are used to sleeping most of the day. A lack of self-care is evident amongst some teenagers and others show signs of malnutrition due to a very poor diet.

Sometimes the teenagers are living in hostels for the homeless because they have been in the care system for years and have had nowhere else to go after multiple placement breakdowns, usually due to their behaviour. The reasons why a young teenager might have nowhere to go are complex.

In order to break a cycle of abuse, addiction, lack of hope and lack of education something has to change. Special care is a last chance for a second chance and as such some of the teenagers in this form of care do not want to leave because they are not given something to leave for. Their lives are so difficult in the outside world that they would prefer to remain in detention.

There is no question that staff members in secure care units are responsible for the care of highly vulnerable teenagers who need huge levels of input and support. It is a role which requires a high level of dedication, understanding, tolerance and commitment due to the complex needs of the residents.

One teenager who had been homeless prior to gaining a bed in secure care had experienced chronic neglect and grown up witnessing domestic abuse, drug addiction and criminality. Prior to becoming a teenager, she had been groomed online and had started to access child pornography on her phone via the dark web, and had acquired a high level of technical knowledge on how to access it. Having being assessed by a specialist unit it was found that the girl had experienced sexual abuse from a young age in the form of online viewing of child sexual abuse and torture and her sexual development was disturbed as a result, leading to deviant behaviour on her part.

As a child and young teenager, as well as being exposed to abuse and criminality, she had become homeless and spent most days in a hostel bedroom, no one was responsible for her. She was a highly vulnerable teenager who posed a high level of risk to herself and to other children, the High Court heard. Both a victim and potential abuser, the teenager was receiving specialist help.

3.1       Managing risk

During their time in the special care units the young people are visited by their guardians ad litem, their social workers and other professionals working with them. There is family access if it is deemed in their best interests and sometimes the access is supervised. They also get time out of the unit on “mobilities” (usually a few hours in a shopping centre with supervision) in order to learn how to manage themselves outside of secure care and the mobilities are seen as an important step to reintegration into the community. A risk assessment is done of each young person before mobilities are granted because some will take the opportunity to abscond. Indeed, it has also happened that a young person will make a request to visit the judge in the court but abscond into the city centre for a few days once they arrive in Dublin. Therefore, each mobility is risk-assessed beforehand.

Learning to manage risk-taking behaviour is one of the life skills the professionals working in special care teach the young people in the system. Once the young person is deemed to have had a therapeutic benefit from secure care and their behaviour no longer poses a risk to themselves and others, they can begin their transition from the unit into a pre-assessed step-down unit where they will sometimes live until they reach their majority.

In the most complex cases, the residential units are sometimes bespoke single occupancy units with specially recruited and skilled staff. Other residential step-down placements have a small number of occupants. The system of robust support and education has to be already in place for the young person before they begin to transition out of secure care. This will be in the form of a care plan, with an approved placement which has allocated funding, nothing can be left to chance. The young person will try overnights there first to see how they manage their new placement and indeed, freedom, before making the full transition out of secure care.

Drug addiction in teenagers is another common reason for acceptance into special care and these young people will have a high risk profile, sometimes with a risk of death. Their family life backgrounds are complex and sometimes, due to their own aggressive behaviour, they cannot return home.  There are some young people who will come back into the secure care system because they are unable to manage their risk profile. One young person with addiction and behavioural issues had already been in secure care twice and was living in a hostel after his residential placement broke down. He was brought into secure care for a third time the day after he was nearly drowned in a river, having thrown himself in. Another had to be rescued from a canal and was found to have consumed various substances.

4. Judicial review of Child and Family Agency

The actions of the CFA in relation to special care were subject to two recent judicial reviews (JRs). On both occasions the court found with the applicant (the child), through his guardian ad litem. The lack of availability of a placement led to the first of the two JR proceedings, taken to compel the CFA to make an application to the High Court.

In the judicial review held in May 2019, the applicant (the minor) through his GAL (as next friend) sought a relief requiring: “a declaration that the decision and/or policy of the respondent 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 case arose because though the CFA had assessed the child as requiring secure care for his own protection and welfare, it did not seek a special care order as there was no secure place available for the child. During the hearing, 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 position was set out in the CFA’s affidavit. According to the affidavit, there were three secure care units in Ireland containing between them 26 places. However human resource issues meant that 12 of the 26 beds were not available. There was a difficulty in recruiting staff to work within the units. The profile of the children in the units was aged between 11 and 17 with different psychological profiles.

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 [psychiatric] supports to the units…

“One could reasonably make the point that the [numbers of] staff working in the system is a reflection on the scale of pay.”

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 as well as six social care 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, the CFA counsel said. It was not seen as an attractive employment opportunity, staff retention was a problem as well as ageing staff who were retiring, the court heard. 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. Among 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 was making extensive efforts to maintain staff. A new model of care across special care, 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, the CFA counsel said. There was a rolling recruitment campaign on the TUSLA 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. Fifty-eight posts were currently offered within special care.

The Agency was 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.

In response to the information provided to the court by the CFA, the judge commented that 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 was not in accordance with their intentions.

5. Judicial involvement

All of the judges who have presided over the Minors in Special Care List have regularly visited the teenagers and taken a very active interest in all of their individual cases. They have directed the CFA when necessary to come back with information about provision of essential services.

Recently the judge in charge of the list went to visit one of the units and was given a tour by one of the young people there. He told the parties in court that this young person had shown him “her own art on her own walls, she is a gifted artist, this is the sort of art that barristers would pay a lot of money for. Something should be done to cultivate her interest in art. Her ability to paint is striking, did she mention a desire to do a course? Efforts that can be made should be made to put her on the path of some form of study to lead to a qualification in [her area of interest]. But it is necessary to proceed with caution.

“This is a clever and determined young lady, she needs supports or she might decide it is a different life she will have as opposed to the one, one would like to see her have. I’m asking that a cognitive assessment take place so that her interest in art be encouraged and I’m asking that her pathway to education as a [her area of interest] be facilitated. I want an updated report in those matters on the next review date.”

The teenager’s father was present in court and the judge addressed him saying: “It may come as a source of pride what I said about your daughter, she was a pleasure to meet, a talented artist, she is bright but if she decides to go in the wrong direction there will be nobody to stop her.”

6. Therapeutic regime

Essentially the special care system is a system that endeavours to bring a therapeutic regime into the lives of troubled and traumatised teenagers. It is based on need and due to the extremely small amount of beds that are available in the State (26) and the even smaller amount that are open (roughly 14), it is the young people with the highest risk profiles who are brought into the system, sometimes by Garda escort.

Their behaviour inside and outside the unit can also pose a risk to others and they may be subject to upcoming District Court hearings due to criminal charges such as robbery and assault. There have been arguments in the High Court over the reluctance of the CFA to make an application for special care where criminal charges are pending, which may result in the child’s incarceration in the youth detention centre, Oberstown, rather than taking up a secure care place. It has been stated that secure care is not a means of avoiding sentencing. However, while a placement in special care can appear to have the potential effect of judicial leniency, if charges are brought and child is convicted, the placement in special care falls away and the young person is transferred immediately to Oberstown.

There are young people in Oberstown who have spent time in secure care and there are young people in secure care that have spent time in Oberstown. The teenagers can get to know each other and sometimes form friendships that continue once they have transitioned out of the system. On the other hand, it has also happened that some teenagers cannot be placed in a particular step-down unit or special care unit because it is known there is a resident there that they do not get on with so the placement has to be avoided in order to avoid altercations.

If a teenager gains enough skills through therapy to live a more risk-free and structured life in their step-down placement, they can hopefully go on to live a better life with supports. This includes access to education if they have been in the care system for more than one year, and access to an aftercare worker. The time spent in secure care is of potential benefit to most young people who access it, but the system lacks beds and resources, it lacks staff and cannot retain the staff it has.

7. Proper resourcing and legislative change needed

In order for this critical system of care to really offer a chance to change the lives of the most vulnerable children in our society, at a minimum all 26 beds need to be fully operational, and appropriate step-down facilities provided for those leaving special care. In addition, provision has to be made for those children who fall outside the definition of those qualifying for special care.

A true measure of progress in our society would be to offer residential high secure mental hospital care to all young people who need it in our own State instead of sending them out of the country, out of their communities and away from such families as they have, at enormous expense to the State. While this will require resources, it offers a more satisfactory and permanent solution than the current ad hoc system of sending these children out of the State. In addition, in order to provide all children in need of specialist mental health treatment appropriate treatment, changes to our mental health legislation are required.

Ultimately all necessary resources need to be put into our own systems of care, including investment in children’s psychological and psychiatric services to permit early intervention for those at risk of developing behavioural and psychological problems. Not only would this make more financial sense, it would save the State money in the long run and it would potentially save lives.