Special care system “in crisis”, lack of special care beds “a tsunami about to reach shore and nothing is being done” – High Court judge – 2024vol1#67

In the first High Court special care list after the court Christmas vacation, there were fifteen matters in the list. Three of those matters related to children where special care orders had been made a number of weeks previously but where no special care beds were available for them.

One of the matters listed for review related to the review of a special care order made four weeks earlier in respect of a teenage boy. The barrister for the CFA told the judge that although a special care order had been made there was no bed available “and no immediate prospect of a bed”.

The GAL had made a number of recommendations in respect of the involvement of Tusla’s Assessment Consultation Therapy Service (ACTS) and the judge was told that ACTS was now involved but it was difficult to engage with the child as he absconds regularly from his existing placement with a relative. The CFA barrister said that the GAL had suggested that special care staff be involved at this stage while he was awaiting a bed in special care but the problem with this suggestion was that they did not know which special care unit the child would be in until a bed became available.

The court was told that the child had recently been before the District Court on criminal charges and the District Court judge was informed that the child was subject to a special care order but was not yet in special care. The child was not remanded in custody and the judge said that they would give him one more chance with strict bail conditions, however there was a concern that he would soon be back before the District Court for breaching bail conditions, he was not in special care.

The parents of the child were not involved in the proceedings and the child’s grandmother was a named respondent in the proceedings. The senior counsel for the grandmother told the court that she was extremely concerned, there had been a further assault over the Christmas period and that the child “goes missing on a daily basis”. She also expressed the concern that the criminal proceedings were inappropriate where the child was so vulnerable and she “wants him off the street”. The barrister asked the court to keep the matter under “the closest review” as the CFA was not able give any indication of when a bed might be available.

The barrister for the GAL told the court that the GAL believes the child to be in “the exceptional risk category” and that he had a diagnosis of autism and ADHD. There was a concern that he was vulnerable to exploitation and he was found to have had Brown Thomas vouchers and expensive Canada Goose clothing, which raised the concern that he was already being exploited. The GAL’s barrister said that the child was not engaging at the moment and the possible remand in custody was a cause of serious concern, he might end up being remanded in custody based on the fact that there was no bed for special care and he might find himself in breach of his strict bail conditions.

The judge said that there was nothing in this case that he could say or do as he had already made an order for special care which was “effectively being ignored by the CFA” as there was no bed available and the CFA were not taking steps to make a bed available. The judge said that the order “he made some weeks ago was of no practical effect” as the CFA had not acted on it and the child had not been taken into special care.

The judge said that the consequences of that might be for another forum. He noted the strict bail conditions and considered it might be “inevitable he will be picked up for breach of bail conditions” while not in special care. The court adjourned the matter for review and said that “stakeholders may decide to take certain steps”. He noted a Supreme Court decision in respect of special care orders was awaited.

The second case related to a teenage girl where there was an outstanding special care order in force that was made three weeks previously. The CFA’s barrister said that the risk continued to be extremely high and there was no news as to when the CFA could place the child in special care, in accordance with the order. The court was told that the mother was in regular contact with the child and the child had assured her that she was returning to her placement every night, which was positive, but the mother was anxious that a placement in special care be sourced.

The barrister for the GAL said that he had been appointed when the special care order was made. The child had a mild intellectual disability and PTSD and had had over 25 hospitalisations including over the Christmas period and the GAL was extremely concerned in respect of the level of risk. The GAL was concerned about how he could perform his functions as he had not yet met the child. The GAL was concerned about letting the child know about the special care order in place and the consequences. He referred to a case a few years previously where a child had committed suicide between the making of the special care order and when it was implemented and the GAL wanted clarity on when the special care order could be implemented.

The judge described it as an “extraordinary situation once more”. The order was made because of the danger to the life, health, safety and welfare of the child and said, “here we are, weeks after the order was made” and the child was “still out and about” going to ledges of bridges, being rescued, walking train tracks and being rescued. The judge said that the child was known to large numbers of Gardaí in stations around the area excellent work by them in keeping the child alive.

The judge noted that the child had PTSD against a background of multiple traumatic events, she had “chronic suicidality” and she was still “out and about” because the CFA had not provided space in special care in accordance with the court order. The judge said that there was no more he could do absent an application to court in respect of the failure of those responsible to give effect to the court order in place and he noted the Supreme Court judgment in respect of special care was still awaited.

The judge adjourned the matter for two weeks and said that although he could put the matter back for one week only it was pointless as it would give nothing to the urgency of the CFA complying with the order and similarly he “could list for every day of every week” until the time the order was given effect to. The judge said that the CFA knew the position and it was “pointless pretending that listing every day or weekly would make a difference” and that the CFA might be held accountable for reason of their failure to comply with the court order.

The third matter related to a teenage boy who was a child described as “well known” to the court as he had been subject to previous special care orders. Similarly, the CFA was not in a position to comply with the special care order made a few weeks previously due to there being no bed for the child which was described as “entirely unacceptable”.

The court was told that the father was adopting the same position as the mother. The senior counsel for the mother said that the reports speak for themselves and the “situation was getting worse”. The mother was considering issuing proceedings and he requested the court to lift the in camera rule for that purpose so that they could refer to reports. The barrister said that proceedings had been drafted and it was intended to issue the proceedings in the High Court seeking a declaration against the CFA for the continuing breach of their duties and “some form of contempt of court”.

The judge agreed to make an order for lifting the in camera rule for the purpose of reports and paperwork for the intended High Court proceedings but with restricted circulation of the documentation so that they could only be circulated in a limited fashion to the parties involved and made available to the judge hearing the case. The judge said that he would allow the parties to come back to him at any stage to enlarge the terms of the lifting of the in camera rule if required.

The barrister for the GAL said that the GAL wanted the court to be aware that the child was missing again the previous night and he had now been two nights missing without any contact, he was not picking up his phone, he had “copped on” that his phone was being tracked and there had been no contact at all with the child for 48 hours.

The judge said that he was not going to repeat what he had already said in the other similar cases but that it was an “extraordinary situation”. The judge said that he had met the child and that he was “lucky to be alive having regard to the behaviour he has engaged in over the last number of years” and noted that this was the third special care order in respect of the teenaged boy. The judge noted that he was at serious risk as he was “involved in the drug underworld” engaging in violent criminal behaviour and it was getting worse. The child had been making threats including threats to the residential units where he sometimes lived and he had attempted recently to set it on fire.

Judge: “This is a scandalous situation to exist and in large measure the situation and the crisis is going completely under the radar on a national level due to the in camera nature of these proceedings.”

The judge said that someone will be held accountable and it was “by the grace of God” that the children in the list were still alive. The judge expressed concern about “what would we do when someone has to explain where a child who should have been in special care commits suicide or dies as a result of the conduct that they should be in special care.”

Judge: “I don’t know why those in the CFA are not dealing with this as a crisis situation. This is a tsunami about to reach shore and nothing is being done.”

Another matter in the judge’s list was in respect of a teenage boy in special care where the judge said that the “lack of an exit plan and the lack of identification of a placement” was exacerbating the difficulties for the child and he asked the CFA if there was “any hope or prospect” of a step-down placement.

The barrister for the CFA recalled how the previous step-down plan back to the family home was not successful which “set things back”. He said that the behaviour and the presentation of the teenager was so extreme it was hard to find a placement willing to take him. The barrister said that every effort was being made by the CFA but nothing had been successful. The barrister said that the special care order was due to expire soon and that he was asking the court to list the matter the following week for an application for a fresh special care order but that he had no further update beyond that.

The barrister for the mother said that matters were worse over Christmas as the teenager had assaulted the mother in the home and his anger about not coming home to her had not dissipated. She said that the mother remained committed to whatever she can do but the situation remained that she cannot be at risk of harm and “unfortunately the risk of harm has prevailed”.

The barrister for the GAL acknowledged that for some time the plan had been for the boy to return home and that although the need for a step-down placement was more recent it was no less urgent. He noted that the CFA intended to apply for a fresh order the next week but that “the GAL was unlikely to be supporting it”. The barrister said that he was not sure if he would be seeking a contested hearing but the GAL’s view was that “special care on balance was now doing more harm than good”. He said that when the teenager was motivated he could regulate his behaviour but he now sees “no light at the end of the tunnel”.

The judge commented that this was an example of “the crisis state” in the special care system not delivering as intended by the legislation and “not delivering for the children”. He said that some children are now at greater risk than they could have been because of the failings of special care and that they are leaving special care resenting all that had happened and seeing nothing good from special care.

Judge: “The system is completely in crisis.”