See also Vol 1 of 2019: Judge: “Where does the care system begin or end and where does the criminal justice system begin or end, perhaps they don’t.”
The case of a teenage boy [A] who had previously spent time in special care due to extreme behavioural difficulties came into the District Court in autumn 2019 via an application by the guardian ad litem (GAL), due to the lack of a suitable placement being provided by the Child and Family Agency (CFA). The court was informed the boy was residing in a hostel for the homeless. The application was made five months after counsel for the CFA had given an undertaking to the High Court that the Agency’s National Special Care Committee would consider an application for special care for him “in accordance with the law”.
This followed five months on from a judicial review taken by the mother of the same teenage boy, A. She brought the judicial review on an emergency basis when the National Special Care Committee declined to make a determination that the boy needed an application made for special care, on the basis that he did not meet the criteria for it. He was a child who had already spent one year in special care.
The boy had a history of violent and criminal behaviour, and was already facing charges in the criminal justice system for robbery and assaults, including knife assaults. The boy’s GAL, who had supported the judicial review of the decision not to consider him for secure care, said he “had never come across anyone as dangerous.”
The GAL was firmly of the view that A’s behaviour posed a real risk to his life, health, safety, development and welfare. A was continuing to present with a high level of intimidation, threatening and risk-taking behaviour. Drug use and criminal behaviour were included in all the reports and were a feature of A’s presentation.
During the hearing it was submitted by counsel for the applicant that it was unreasonable not to apply for a special care order and that it was against the evidence in the reports.
Following the judicial review of the decision by the CFA’s National Special Care Committee not to consider an application for special care for the child, the High Court found that the committee had not made its decision in accordance with the law.
Senior counsel for the CFA responded that the CFA gave an undertaking to the High Court that the National Special Care Committee would consider the matter in accordance with the law and the matter would therefore be referred back to the Committee for further consideration. However although senior counsel for the CFA had given this undertaking to the High Court it transpired that the child was not subsequently placed in special care.
It was nearly five months’ later that the GAL brought an application to the District Court under section 47 of the Child Care Act 1991, seeking that the CFA provide a suitable placement for the teenager, who was now living in a hostel for the homeless.
The judge directed that the CFA give €35,000 to the child’s GAL to fund a suitable placement. That afternoon the CFA brought a judicial review to the High Court arguing that this court’s direction was ultra vires (beyond its power).
When the case returned to the District Court one week later, the solicitor for the CFA told the court that she was “very pleased to report white smoke, that a placement had been identified by a private provider” for the child. This placement was a new unit and would be ready within four weeks as it was “well advanced in terms of registration”. This was a single occupancy unit as the teenager could not mix with another peer group, the court heard.
The focus now would be how to ensure that the placement would work after the boy’s 18th birthday, therefore the staff associated with the new unit would start working with the teenager while he was in his current accommodation in a homeless hostel. He was being provided with an aftercare team and a new team of social workers would take over his care.
The High Court had given a stay on the District judge’s order, said the solicitor for the CFA, and the proposed funding of €35,000 had not been made available to the solicitor for the GAL.
The judge told the parties that the reason he had made the direction was that he thought it might be useful for a number of cases. “Let’s review this for a minute,” he said. He reminded the parties that Ireland was a signatory in 1992 to the United Nations Convention on the Rights of the Child (UNCRC) 1989.
He said that the Ombudsman for Children had paraphrased the UNCRC, and he read the statements relevant to the case into the record so that everyone knew that it was what the court expected to be complied with, that was why he had made the order the week previously and why the court deemed that order to be fair and proportionate:
“Article 3, all adults should do what is best for you. When adults make decisions, they should think about how their decision will affect children.
“Article 9: You have a right to live with your parent(s) unless it is bad for you. You have the right to live with a family who cares for you.
“Article 12: You have the right to give your opinion and for adults to listen and take it seriously.
“Article 20: You have the right to special care and help if you cannot live with your parents.
“Article 21: You have the right to care and protection if you were adopted or in foster care.
“Article 24: You have the right to the best health care possible, safe water to drink, nutritious food, a clean safe environment, and information to help you stay well.
“Article 25: If you live in care or in other situations away from home, you have the right to have these living arrangements looked at regularly to see if they are most appropriate.
“Article 26: You have the right to help from government if you are poor or in need.
“Article 27: You have the right to food, clothing, a safe place to live and your basic needs met. You should not be disadvantaged so that you can’t do many of the things other kids do.
“Article 33: You have the right to protection from harmful drugs and from the drugs trade.
“Article 39: You have the right to help if you’ve been hurt, neglected or badly treated.
“Article 40: You have the right to legal help and fair treatment in the justice system that respects your rights.”
The barrister for the mother told the court that the real concern was that this was not the first time they had been told of a potential plan, therefore they were seeking parallel planning in case it fell through.
“Sometimes radical actions produce results, where does this leave us today, we have a hope of something in four weeks’ time,” the judge said. He adjourned the case for two weeks to see what progress was being made in terms of the new residential unit. The judge said that he was meeting with the teenager the following day and wanted to be able to discuss the proposed plan with him. The GAL would therefore inform A of the newly planned placement.
Seven weeks later A moved to his private placement.
