Following a judicial review of a decision by the CFA’s National Special Care Committee not to consider an application for special care for a 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 would give an undertaking 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.
This followed the judicial review taken by the mother of a 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 secure care. He was a child who had already spent one year in secure 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 guardian ad litem, who supported the judicial review of the decision not to consider him for secure care, said “he had never come across anyone as dangerous.”
(In the legal submissions the LL case is referred to. This is reported in this volume, Case number 8)
The JR hearing
Senior counsel for the applicant, the mother, set out the background to the case to date. A decision made by the National Special Care Committee that A did not meet the criteria for referral to special care was being challenged as not being made in accordance with the law under Section 23F of the Child Care Act. The decision of the CFA was a decision and thus capable of review.
She told the court that the child and his family had come to the attention of the CFA in 2009 and over three years later the child was placed in voluntary care. He was then in a foster placement for three years which broke down in 2016. An attempt was made to reunify the child with his family in 2017, supports were put in place but the reunification failed and the child was placed into care under an interim care order (ICO).
The boy’s behaviour continued to deteriorate and as a result he was made a subject of a special care order under the inherent jurisdiction of the High Court and then subsequently under the statutory provisions introduced in January 2018 under the 1991 Act, as amended by the 2011 Act. The teenager spent a year in special care, some progress was made and the CFA took the view that he no longer qualified for it and he was discharged to a step-down placement. His behaviour deteriorated in that placement and within the month the unit were signalling that they did not believe the placement was suitable. It broke down nearly two months later.
Matters of concern were assaults on staff, substance abuse, drug debts, crime and association with criminal elements. On being discharged from his placement, A was provided with emergency accommodation in a hostel which was not open during the day. Empowerment Plus were making contact with A between the hours of 9.30-6.30 in order to keep him occupied but his behaviour deteriorated further and in April A committed at least two offences, both involving assaults and one allegedly involved a stabbing with a knife after a theft had already taken place.
The teenager had been assessed by two consultant forensic psychologists during his 2018 stay in special care. Psychologist 1’s opinions and recommendations were set out in the booklet and counsel for the mother summarised them briefly. Psychologist 1 had found A to be exceptionally vulnerable and traumatised and he had suffered neglect and abuse. The teenager had an established diagnosis of ADHD and a cognitive disorder which had resulted in a hyperkinetic cognitive disorder. A also had a significant weakness in verbal memory and was dyslexic.
The psychologist had carried out a structured assessment of violence and risk on A and had found him to be at high risk with a history of carrying weapons including possession of a knife. The impression was of a high emotional trauma and the response to that trauma was with violence, this was consistent with the conclusions of Psychologist 2.
A had violent thoughts and fantasies and needed to control and manage his social environment. The teenager enjoyed the thrill of being on the streets, took part in crime, substance abuse and was easily taken in by his peers. While he had potential, he needed a highly structured and highly staffed centre with good facilities and educational facilities as well as long term rehabilitation. He required robust limit setting with consequences, including the involvement of the criminal justice system, “that has been relied upon by the CFA”, counsel for the applicant said.
Further information from the report included the recommendation that encouraging his involvement in pro-social activity may reduce his association with violence. His impulsivity could result in aggressive behaviour and medication was being given in order to address that. Further recommendations included therapy regarding anger management, emotional regulation, substance misuse and pro-social education. He also needed therapy for alleged sexual abuse and he was at increased risk of self-harm to his impulsivity and substance misuse.
The second consultant forensic psychologist’s report, by Psychologist 2, who had also assessed A during his time in special care, had administered the adult version of the Firestone Assessment on Violent Thought. Findings included that A was at the 85 per centile above average range of violent behaviour and his instrumental and reactive violent subscale scores were high. Psychologist 1 agreed with Psychologist 2’s assessment as to the level of violent propensity.
The report from the guardian ad litem (GAL) also included concerns regarding the level of violence exhibited: “It beggars belief that the secure care committee does not find he reaches the criteria for secure care,” wrote the GAL.
Senior counsel for the applicant, the mother, told the court that the legislation to be considered was at Part 4a of the 1991, introduced by the 2011 Act and Amended by the 2015 Act. Part 4a introduced a comprehensive statutory regulation which replaced inherent jurisdiction and set out a test by which secure was to be assessed, it also set out the steps to be taken by the CFA.
Secure care/special care only applied to 11-18 year olds and was defined in section 23c of the Act itself. Secure care addressed the behaviour and the risk of harm that behaviour posed to the child’s safety, life, health and welfare. Secure care itself was to include medical and psychiatric assessment and the difference between secure care and standard care was that secure care looked at the behaviour of the child in relation to the life, health, safety, development and welfare of the child. “What you are looking at is how the child is behaving and is that behaviour in and of itself posing a risk of harm to those areas,” said counsel for the applicant.
She went on to say that section 23F of the Act envisaged a procedural approach on behalf of the CFA. First of all the child must be over 11, there had to be reasonable cause to believe that the child’s behaviour posed a risk of harm in the areas outlined, having regard to considering whether some form of other care would be suitable, such as services under the Mental Health Act, and the CFA must be satisfied that those services would not address the behaviour and risk of harm and that secure care would.
The CFA is then obliged to convene a Family Welfare Conference to discuss the application for secure care. It is also obliged to consult with various persons such as the child, the person in loco parentis and the GAL but it could dispense with both of those requirements if it was decided they were not in the best interests of the child. “Having gone through that process, if the CFA is then of the view there is reasonable cause to believe the child’s behaviour is presenting a risk to its areas, it must determine whether or not the child requires special care.”
The distinction, said counsel, was reasonable cause to believe and making a determination there is cause to believe these matters arise. Then the CFA must bring an application to the High Court under section 27F8 for secure care and that was the statutory process, first preliminary steps were taken, then decisions were made.
A secure care order could be made in circumstances where no other care orders were in place [such as an interim care order or a voluntary care order].
The judge asked the counsel if the “risk to his or her life” in Subsection A2a included a risk that the child might harm others. Counsel confirmed this, citing a decision of the Court of Appeal and LL and others, that the risk of harm to others fell within the test, “a risk of harm to self is in and of itself a risk of harm to wider society,” said counsel. In LL a minor appealed to the Court of Appeal against the order of secure care saying she did not reach the threshold for secure care. Counsel for the applicant told the court that it was their case that LL must be seen as a guidance.
Counsel for the applicant spoke about another case, DG vs EHB 1997, where the Court of Appeal “says that in weighing the rights of a minor you have to come to a calibrated Constitutional balance, welfare rights effectively trump rights to liberty and the priority is to safeguard the rights of the minor.”
Rights to welfare were enshrined in 42a of the Constitution, introduced in the children’s referendum of November 2012. The EU Convention on Human Rights and the United Nations Convention on the Rights of the Child must be all taken into account. Legislation had a protective factor and statutory provisions must be seen in light of the fact they were there to give substantive effect to the rights enshrined in the Constitution.
There were three letters received from the National Special Care Committee, one letter was affirmative of a previous decision in late March 2019, the letter stated that the Committee did not think A met the requirements for referral to secure care. The Committee noted that he had been in secure care for just under a year and he was not advised of the present application, they had a concern that he had not been consulted.
They had been notified of the serious assault on the staff member prior to A’s step-down placement breaking down and while they acknowledged some deterioration in his behaviour they found no evidence his behaviour needed secure care or posed a risk of harm. Their response also included that there were concerns in relation to criminal elements in his behaviour and that these required addressing in the criminal justice system and not through the secure care system.
Subsequently the GAL had taken a section 47 application in the District Court asking for recommendations regarding secure care. The District Court suggested that perhaps the National Special Care Committee had not been aware of the GAL’s concerns regarding the child and to refurnish them with these concerns. The National Special Care Committee responded in the second week of April, replying that the information in the GAL report was historical and already known.
The teenager told the GAL that he was “chuffed” by their decision, while the GAL noted that “he had never come across anyone as dangerous”, who lacked empathy and had the potential to do serious harm, who enjoyed hurting people.
When the application for leave to bring the JR was brought by the applicant, the CFA decided to request the chief social worker to reconsider whether A’s application should be reconsidered. That led to the decision in mid-April 2019, it was noted that A had been previously reviewed at the end of March, they acknowledged the new information regarding theft, aggravated robbery of another and the decision of the DPP to prosecute on three charges.
The teenager had appeared before the District Court in relation to some or all of these charges and was out on bail with a curfew of 9pm. He had to sign at a Garda Station three times a week and was to be charged with three assaults on staff in secure care. The decision went on to say that while A had done well in secure care he did not maintain his progress and there would be no therapeutic benefit from readmission.
It also said that A needed consequences to his behaviour once all methods were exhausted to engage him and there was not sufficient evidence that his behaviour met the requirements under section 23F “even though”, continued counsel for the applicant, “the two incidents…stealing of a bike from a [teenager], the stabbing of a person while effectively mugging them, after he had stolen the bike he assaulted a house owner in a back garden.
“The rational for the conclusion is that there was no therapeutic benefit to be gained from his readmission into secure care, this seems to be the basis the CFA accepts for the refusal. The second reason was that he needed consequences to his behaviour, apparently through the criminal justice system, although that is not entirely clear from the letter.”
Counsel for the applicant then went on to discuss the LL and others case, she said that violence had been a very dominate feature in that case, directed towards others, there was an analogy to the type of behaviours in the two cases. The teenager in that case had created a list of staff that she intended to assault, and had said that the victims’ screams were music to her ears. She appeared to the psychiatrist to be animated and pleased with herself and felt mistreated by not knowing ultimately what bodily harm she had caused in one particular assault, she had no insight and no empathy.
In LL and others the Court of Appeal looked at previous case law in order to see if the CFA had protected the child’s rights by placing her into secure care, the court went on to consider the health of the minor who was at risk of self-harm, that had been established on evidence but had increased risk within a certain context. The child in this case had submitted to the court that the risk of harm was only to herself and not to others, it only related to her life, safety and health, etc., but the Court of Appeal completely rejected this. That teenager was already in secure care whereas this teenager, A, was living in a hostel, engaging in acts of violence with members of the public and consorting with criminals. Therefore the findings in LL applied even more to this teenager, A, submitted counsel for the applicant. He “could not be more at risk”.
With regards to LL, “in the context of therapeutic intervention, diverting her from violence towards others, there was a distinct reason for furthering the secure care order, for adjusting her behaviour, the harm to her life, it was found the trial judge was correct and providing a therapeutic environment to a minor is demonstrably necessary in and of itself.”
The judge asked counsel for the applicant if “the same could be said of any child who was a repeat offender.” Counsel replied that it would depend on the circumstances. “It is clear the propensity to violence has arisen because of childhood experience and forms a very large part of who the child is, whether that would apply to other children in the criminal justice system I don’t know. The secure care system is completely separate to the criminal justice system. It’s a separate mechanism. The fact that a child is subject to charges is not a basis for the CFA not to take steps into secure care, there are no preclusions.”
“Albeit bringing the case out of the criminal justice system,” said the judge.
“But if the criminal justice system has a prison sentence then the secure care order ceases and the child undergoes whatever process it has to undergo. This minor is subject to charges, he will ultimately be tried and a sentence imposed but that’s not a basis for the National Special Care Committee to decide it is not a basis for secure care.
“There is no therapeutic benefit to secure care, that is the main ground on which they said this minor does not meet the test. It is impossible to look at the test and say the CFA have addressed the central tenet of the test, his behaviour is undisputed.”
Counsel went on to say that the last report of the chief social worker had said that for a therapeutic benefit to succeed it needed support from the criminal justice system, this was not relied upon by the National Special Care Committee but mentioned in the CFA submissions as part of the considerations as to why there would be no therapeutic benefit.
Counsel said the opinion of the chief social worker was completely wrong in the context of the test or the Court of Appeal’s decision [in LL], detaining a minor to prevent harming of himself or others was in and of itself a basis for detention.
The judge asked if it followed that the making of a secure care order was a source of preventative detention. In the LL case, the Court of Appeal had found it was not, replied counsel, the anticipation is that therapeutic intervention ensues. Therefore containing A would be for that benefit, in order to assist [A] to desist in the tendencies.
“[That] a child who is assaulting others and creating a direct risk to his life, health and safety could possibly not meet the criteria for secure care flies in the face of reason. If they had actually applied the test they could not have arrived at that conclusion. The risk to safety is entirely obvious, there is a substantive risk to safety which has led to criminal charges and could not possibly lead to a rational decision that he does not qualify for secure care.” [Part 4 of the CCA sets down the test]
The judge posed the question a few minutes later: “Wherever you have a child that’s a repeat offender, should their care be looked at?”
Counsel for the applicant said she thought it was extremely rare that a child would go into secure care having never been in care at all. “Quite often it’s the case there are JLO’s [junior liaison officers] a history of antisocial behaviour, it’s a common experience with children going into secure care, or assault [of members of staff] or offences in secure care, I don’t think there’s a dividing line with clarity, children often have some type of criminal history behind them, but it doesn’t take them out of the secure care system, the care requirements look to the interventions that might assist the care of the child.”
“Where does the care system begin or end and where does the criminal justice system begin or end, perhaps they don’t,” remarked the judge.
Counsel said that section 23e of the Act set out that secure care was not prohibited if a child had been found guilty of a criminal offence, it was the custodial sentence that took them out of the care system. “The relationship between the two systems had to be designated by the legislature due to an issue in the inherent jurisdiction proceedings.”
Counsel also spoke of the Meadows case, she told the judge that this matter came within the test of Meadows and was an appropriate case for the court to quash the decision of the National Special Care Committee for the reasons as set out.
Senior counsel for the GAL told the court that it was an extremely difficult case and the GAL had found the teenager to be probably the most dangerous individual he had come across in the 35 years of his profession. Counsel said that the child was entitled to have his circumstances in general considered properly by the CFA in accordance with the provisions of the relevant sections of the Child Care Act 1991 and to fulfil the Act and it was the function of the High Court to ensure that happened.
He asked the judge to look at Section 23F2 of the Act and subparagraphs a, b and c. The statutory intervention was clear where there was a real and substantial risk of harm identified by reason of behaviour of the child “it will be adequately addressed either by something less than secure care or by secure care, that is the entitlement of the child under the section.”
Counsel said that the National Special Care Committee had acknowledged some deterioration in his behaviours but did not consider that his behaviour met the threshold for admission into special care and they had set out subsection a within section 23F2.
“The significance of that is the following, if you don’t get within a you don’t move on to b or c and I presume that is why we don’t see any detailed assessment of b or c in the decision/assessment. This application never got off the starting blocks, it is a basic test under a which the Committee did not believe was satisfied.”
The wording of section 23F2 was mandatory, the word “shall” was used, said counsel. The CFA could not incorrectly construe one of the subsections and incorrectly apply it to one of the other sections.
Statutory obligations were triggered when applied correctly, the appropriate application of the test under 23F2a triggered a cascade of events that did not happen in this case, it had started incorrectly and “the effect is the CFA did not carry out a statutory exercise to which it is obliged. What has happened is illegal.”
The child’s residential placement had broken down almost a month ago and he was staying in a hostel that was not open to him during the day. “How can that be said to adequately address a real and substantial risk of harm?” asked counsel for the GAL. “History shows that it hasn’t addressed it because of what has happened in that month.”
Counsel said that his client was entitled to have his statutory entitlements met under the 1991 Act. It was difficult to see how placing this young man in a hostel adequately addressed the risk of harm to himself and others.
There was the issue of criminal law and how it tied in. Counsel for the GAL said it was his belief that definitively the interface between the two systems was defined by the 1991 Act in section 23C and D which made it clear that nothing short of detention by the court took away the statutory function of the CFA.
Section 23D3 dealt with the situation where a child is charged with an offence.
“I don’t believe in a case as serious as this we can have a situation where the criminal justice system says it’s a job for secure care and secure care says it’s a job for the criminal justice system and Section 23D and E are set up in such a way that it doesn’t happen.”
The obligation under 23F had not been properly carried out, or 23FA, B and C had not been addressed. The appropriate remedy was to quash the decision of the National Secure Care Committee and refer it back to be determined by this court. The hostel accommodation did not constitute an appropriate exercise of statutory duty.
Both decisions were being challenged, both the first and the second decisions were not to admit to secure care, they both indicated the same error where 23F2a had not be applied.
Counsel also said that the Act did not use the expression “therapeutic benefit” anywhere, special care was defined in section 23c:
23C – In this Part ‘special care’ means the provision, to a child, of –
- Care which addresses –
- His or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare, and
- His or her care requirements,
And includes medical and psychiatric assessment, examination and treatment and
- Education supervision,
In a special care unit in which the child is detained and requires for its provision a special care order or an interim special care order directing the Child and Family Agency to detain the child in a special care unit, which the Child and Family Agency consider appropriate for the child, for the purpose of such provision and may, during the period for which the special care order or interim special care order has effect, include the release of the child from the special care unit –
- In accordance with section 23NF and
- Where the release is required for the purposes of section 23D or 23E, in accordance with section 23NG.
Section 23D Criminal proceedings and provision of special care.
Section 23E Custodial sentence, deferred children detention order, Children Act order and provision of special care.
There was significant risk to all of the elements within the Act, life, health, safety, development and welfare, keeping someone alive was a therapeutic benefit, said counsel for the GAL. “Sometimes it’s a situation where it’s just about keeping people alive.”
It was difficult to suggest there was no therapeutic benefit to the child being placed in special care, even on the most superficial level.
Senior counsel for the CFA told the court that he was going to put the decisions made by the National Secure Care Committee into context and reference them to the statute. It was a fundamental requirement that there must be a therapeutic rationale or purpose for the placement of a child in secure care as well as a real and substantial risk and whether care outside of secure care was adequate.
A body of rights was engaged in secure care such as the right to liberty and the default position was that the child had a right to liberty, without a therapeutic rationale the deprivation of liberty would not be justified.
Counsel said he did not think there was a clear dividing line between the criminal justice system and the secure care system but one dividing line was the need for a therapeutic rationale for placement in secure care. If a child satisfied the criteria for special care by virtue of repeated assaults on others but had no likelihood of being less likely of assaulting others in the future then there was no basis for secure care.
Secure care was a delicate balancing act between various Constitutional rights, at its heart was detention, there was a deprivation of liberty. The Child Care Act itself provided that no period of secure care should last longer than three months, typically the case would come in for review every three or four weeks during that time to see how the child was getting on and if the statutory threshold for secure care continued to exist.
In order for it to be lawful for the child to be detained, it had to be justified, one of those required justifications was a therapeutic benefit or value to the child. It was a balancing act of the right to life versus the right to liberty and the right to welfare etc. Under the CCA the CFA was the only body given the role to determine whether or not a child satisfies the criteria for special care and it was not open to the court to act on its own motion or another party to bring its own motion in relation an application for secure care.
Without a therapeutic rationale placement in secure care would merely become a detainment. The starting point was section 23c of the Act –
23c – In this Part ‘special care’ means the provision, to a child, of –
- Care which addresses –
- His or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare, and
- His or her care requirements, and includes medical and psychiatric assessment, examination and treatment, and
- Education supervision,
In a special care unit in which the child is detained and requires for its provisions a special care order or an interim special care order directing the CFA to detain the child in a special care unit, which the CFA considers appropriate for the child, for the purpose of such provision and may, during the period for which the special care order or interim special care order has effect, include the release of the child from the special care unit –
- In accordance with section 23NF, and
- Where the release is required for the purposes of section 23D or 23E, in accordance with section 23NG.
“Section 23C doesn’t provide that secure care prevents the behaviour, it is care that addresses the behaviour, placement in secure care must address the behaviour which causes the risk. Implicit in that is that the addressing of the behaviour must have some prospect of success, it can’t be a charade of treatment,” said senior counsel for the CFA.
The Child Care Act had come after a long number of years and after a number of judgments regarding courts and jurisdiction on placement in secure care.
“Does the court still have inherent jurisdiction alongside the Act?” asked the judge.
“Where there’s a lacuna in the law the court can use its inherent jurisdiction to fill it, there would have to be an identifiable lacuna,” replied counsel for the CFA. There were some authorities where if the defence of Constitutional rights required it then the court would fashion a remedy. The challenge here was that the CFA did not meet their statutory obligation, so a lacuna in the law might not arise anyway.
According to Justice McMenamin, there must be a rationale for detention, it must have an educational rationale, therapeutic rationale, a welfare rationale, a purpose for protecting life. In the most recent Court of Appeal case Justice Whelan had decided in the context of the Act and the new provisions, it made it clear that there was a therapeutic purpose and hope that there would be therapeutic success in detention:
“’Placement in secure care may be justified but must be for the purpose of providing therapeutic intervention for the purpose of addressing certain behaviour,’” [Justice Whelan]. (See Case Report 8 in this volume)
Senior counsel felt that counsel for the applicant had relied heavily on the LL case, presided over by Justice Whelan, there were very significant differences between the two cases, “you can’t say they were sufficiently similar, you can’t say that [this case] satisfied the criteria. In LL the child hadn’t been in special care previously, there was suicidality, it was unanimous that special care was warranted.”
The court, submitted counsel, should not put itself in the shoes of the decision maker, particularly where the decision maker was given that exclusive role by the Oireachtas.
All of the fundamental rights were involved in this case, the deprivation of liberty had to be proportionate, therefore unless there was a therapeutic rationale it was disproportionate to deprive liberty.
Counsel understood that the challenge to decision by the National Secure Care Committee was on the grounds of irrationality. Counsel for the mother had veered in the direction that the CFA had failed to take into account relevant considerations and she was not entitled to advance that case, leave had not been permitted to advance that. It was not the case that certain things were not considered, seven documents had been considered.
It was correct that an assault on a householder had not been before the National Secure Care Committee, that information was not known at that stage. If that was a matter that anyone felt should go back, then ok, but it could not impugn the CFA who had not been aware of this separate charge of assault.
Counsel drew the court’s attention to the contents of the letter from the chief social worker explaining why the child’s case had not been referred back to the National Secure Care Committee.
The Committee had already found and confirmed that they were unchanged in the view that there had been a deterioration in A’s behaviour and were not satisfied that the threshold of the level of risk met the level in the Act such as to justify a placement in secure care. That had been based on all the information it had received.
The chief social worker said there were two significant issues, one being the therapeutic value of the placement and the second that there appeared to be no consequence to A’s behaviour. The letter said that special care alone was not a response to A’s violence, if the purpose was simply to detain to prevent him from harming others it could be effective, if there was no consequence to the violent and assaultive behaviour then A would not learn. A package of safety measures needed for safety within the community was set out in the letter. “In my opinion [A] will not benefit from special care alone,” the chief social worker had written.
The social worker had also referred to Psychologist 1’s findings, written while A was in special care.
The judge commented that the chief social worker’s letter seemed to address the therapeutic benefit rather than the risk of harm. He said there was no sentence in any of the reports before him that did not say A did not pose a real and substantial threat to the risk of life to himself and others and no sentence in any of the reports to say that he did not meet the threshold.
“No,” agreed counsel for the CFA, “because the social work team already thought and formed the view that he satisfied the criteria.”
The judge asked about section 23F2a, counsel for the CFA said it was clear from both decision letters that the CFA through the referrals committee did consider section 23F2a, it was manifest that they did consider the test.
“When a child has spent a year in special care and the CFA conclude he won’t benefit from another period of time in special care where is the line drawn?” How much time was the State entitled to place the child into secure care for, involving as it did detention, before that detention became unlawful? If there was a therapeutic benefit to A being placed there then it would be justified.
Senior counsel referred again to the letter from the chief social worker, and what was being addressed was coming from Psychologist’s 1’s report, that in order for a child to learn that his actions were not acceptable, there had to be consequences to those actions.
The case had been made that the decision was irrational, the onus had been on the applicant to prove the decision had been irrational and the applicant had not reached that, concluded counsel for the CFA.
In response, counsel for the GAL said that at the very minimal the matter must be reviewed, the point being that the statute worked on the basis that the care needs would be adequately addressed, the CFA had to look at it from that perspective, whether that was by way of putting in greater arrangements by way of residential placements.
Counsel for the applicant said that the CFA had failed to apply the statutory test, the balance of Constitutional rights involved were liberty versus welfare and due to the severe threats to the welfare of A, welfare trumped liberty, keeping the child safe was in itself a therapeutic objective. The intention was important as opposed to the outcome.
The report from the chief social worker was obtained for the purposes of making a recommendation of referral to the National Secure Care Committee, there was no conclusion in the report as to whether it should make the recommendation or not.
It was also quite contradictory. The report and the CFA’s views were one and the same, said counsel, the decision seemed to be based on the fact this A was previously in secure care, this was not an indication that secure care was precluded because of the reoccurrence of his behaviour. The Constitutional rights of the child were entirely absent in every document before the court, there was no consideration of them in any of the letters, concluded counsel for the applicant.
In his oral judgement a few weeks’ later, the judge said what was challenged was the process not to apply to the court for a secure care order. The CFA had said they were entitled to make the decision in the light of the lack of therapeutic effect. Therapeutic care had not been mentioned in the senior social worker’s two letters. 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.
It had been submitted by counsel for the applicant that it was unreasonable not to apply for a secure care order and that it was against the evidence in the reports.
The submissions of the notice party (the GAL) were that there was significant evidence that the child’s behaviour met the threshold for an application to secure care, that there was no material before the National Secure Care Committee upon which it could reasonably arrive at the decision it gave.
The judge told the parties that he accepted the submissions of the GAL, that there were steps/preconditions for the respondent to take before a secure care order was applied for.
The Committee did not consider that the information included significant evidence that his behaviour met the threshold for admission into secure care. There was no material before the National Secure Care Committee upon which it could reasonably arrive at the decision it gave, the applicant was entitled to the relief sought.
The judge said that his decision was based on somewhat narrow grounds, the most relevant relief sought was that that the decision had been irrational, unreasonable and without foundation and that A’s constitutional rights and welfare had not been protected. The appropriate relief was a declaration that the decision of the National Secure Care Committee in March and reasons given were irrational and in April, that was amended after leave was granted.
The judge said the next issue was whether it was appropriate to make an order quashing the decision of the National Secure Care Committee.
Counsel for the CFA did not think it was necessary, he said that the National Secure Care Committee had an on-going role and would reconsider the application in light of the court’s judgment.
Counsel for the child (through the GAL) said: “The essence of what you’re saying is that what took place wasn’t in accordance with the law. What my client is entitled to is a decision in accordance with the law, the National Secure Care Committee now has to consider it in accordance with the law under JR rules…if [counsel for the CFA] is giving an undertaking the National Secure Care Committee will consider the matter in accordance with the law regarding your decision so be it, I’m not hung up on the quash as long as my client gets a decision in accordance with the law.”
“The CFA will act in accordance with the law,” replied counsel for the CFA.
The judge told the parties that the child’s case would be referred back to the Committee for further consideration in accordance with the law.
He said that he was not oblivious to the difficulties faced by the respondent in a case such as this. He also complimented all the lawyers involved for a great effort involved in preparing the case so expeditiously.
The Child Care Act 1991 as amended by the 2015 Child Care Amendment Act.
Section 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.
(2) Where –
(a) the CFA is satisfied that there is 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,
(b) having regard to that behaviour and risk of harm, the CFA has assessed the care requirements of the child, and is satisfied that there is reasonable cause to believe that –
(i) the provision, or the continuation of the provision, by the CFA to the child of care, other than special care, and
(ii) treatment and mental health services, under, and within the meaning of, the Mental Health Act 2001,
will not adequately address that behaviour and risk of harm and those care requirements, and
(c) having regard to paragraph (b), the CFA is satisfied that there is reasonable cause to believe that the child requires special care to adequately address –
(i) that behaviour and risk of harm, and
(ii) those care requirements,
which it cannot provide to the child unless the High Court makes a special care order in respect of that child,
the CFA shall make arrangements to carry out the consultation referred to in subsection (3).