Rebels without a cause

21 Feb 2019 / legislation Print

Rebels without a cause

The Child Care Act 1991 has now been revised and updated to include provisions relating to special care. All applications are on a statutory footing and brought under the amended act, along with new Rules of the Superior Courts.

Special care applications are dealt with in the High Court minors’ list on a weekly basis. It is an area of practice that might be unknown to some, but it is arguably the most complex and difficult of lists in the High Court, dealing with extremely vulnerable and high-risk young children.

Special care involves the civil detention of minors whose behaviour places them and others at risk, and when all other efforts to accommodate the young person within the community have been exhausted by social workers and residential staff. Special care provides short-term, stabilising, and safe care in a secure therapeutic unit.

Young people placed in special care are among the most vulnerable group of minors in the care of the State.

Many of these children have suffered some traumatic early life experiences, with exposure to neglect, physical/emotional or sexual abuse, and engagement with alcohol and drug use.

Liberty

Given the restriction on the young person’s liberty, a placement in special care is made pursuant to a High Court order.

It is an exceptional order, which is only made when there is a serious risk to the life or welfare of a minor. Prior to the introduction of the legislation in 2018, these cases were dealt with, for many years, under the inherent jurisdiction of the High Court.

Following the introduction of the original Child Care Act in 1991/92, it became clear that there was a cohort of ‘out-of-control’ young children whose behaviour was such that they could not be managed within the usual care system, including foster care or residential care.

In response, a number of specially adapted units were set up to place these children, including Ballydowd (Dublin), Coovagh House (Limerick), and Gleann Alainn (Cork). In 2017, another facility was opened in Co Dublin – Crannog Nua. The Child and Family Agency plans to redesignate the purpose and function of Gleann Alainn late in 2018.

Special care legislation

SI 637 of 2017 commenced the relevant provisions of part IVA of the Child Care (Amendment) 2011 act, updating the Child Care Act 1991 by inserting new provisions into sections 23 that contain a power to detain minors in special care units by the High Court.

Section 23(c) provides for a definition of special care as “the provision to a child, of (a) care which addresses his/her behaviour and the risk of harm to his/her life, health, safety, development or welfare, and his/her care requirements; and includes medical and psychiatric assessment, examination and treatment, and educational supervision”.

Special care

The definition of special care refers to a care provision that will address the behaviour, risk of harm, care requirements, and educational supervision. Interestingly, there is no mention in the definition of special care of there being a requirement for a therapeutic rationale.

Prior to the legislation being introduced, it was a given that an application for special care must be based on a therapeutic rationale for detention. While not specifically mentioned in the definition, it is clear that a therapeutic rationale is a theme that runs consistently through the case law.

The legislation provides for the agency to apply for a special care order or interim special care order on notice to parent(s) having custody of the child or legal guardian. On application for a special care order, the High Court will appoint a guardian ad litem to advocate the views of the child in the proceedings.

Once a special care order is made, it can be granted for a period of up to three months, with monthly reviews taking place in the High Court minors’ list. There is a provision in sections 23(g), (h) and (i) to extend the special care order for a maximum of two further periods of three months each.

Advance process

There is a further requirement on the agency to inform An Garda Síochána in advance of any application for a special care order. When a special care order has been made, the High Court will (if necessary) for the purposes of executing the order, direct members of An Garda Síochána to locate the young person and bring them to the special care unit and into the custody of the agency.

One of the key provisions of the legislation sets out a process to be complied with by the Child and Family Agency in advance of any application for a special care order. Section 23(f) provides for the agency to carry out a consultation with the young person and relevant family members and the holding of a family welfare conference.

Section 23(f)(8) states: “Where the 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 agency shall apply to the High Court for a special care order.”

This introduces a mandatory obligation on the agency, where it determines that a child requires special care, that the agency shall apply to the High Court for a special care order. Previously, an application would not have been brought before the courts until there was a bed available in one of the special care units.

Obligation v ability

At the present time, special care units are not operating at full capacity due to a number of challenges. One of those challenges arises in managing these units, where staff can be faced with the threat of physical assault, property damage, and minors absconding on a regular basis.

There exists a high turnover of staff, staff on long-term sick leave, and general difficulties in recruiting staff to work in this environment.

Arising from the provisions of section 23(f)(8) of the act, the agency could now potentially find itself in a position where it has reached the necessary determination that a young person requires special care.

In those circumstances, the agency is obliged to apply for a special care order, but the reality may be that there are no beds available in any of the special care units.

If such a scenario were to arise, the agency with responsibility for the most vulnerable group of young people in State care would not be in a position to comply with its statutory duty.

The ramifications of this for the agency could not be more serious.

What can the agency do in these circumstances? Does it fail to comply with a mandatory obligation to apply for a special care order on foot of having reached the necessary determination?

High Court

Or does it proceed and apply to the High Court for a special care order in the full knowledge that there is no bed available at the time of the application, and request the High Court to hold off on making an order until such time as a bed becomes available?.

Clearly this is a most unsatisfactory situation, which needs to be reviewed. Further, there is the added potential exposure to costly litigation against the State arising from this section.

Judgment

In a recent High Court judgment in CFA v TN & NR, Ms Justice Reynolds (who was dealing with the minors’ list at the time) dealt with difficulties that arose when a minor was transitioning out of special care.

The court addressed the wider issue of the lack of available placements in special care and the availability of onward stepdown placements from special care.

At the time of the judgment, the Child and Family Agency operated four special care units with a capacity for up to 29 children.

The High Court in its judgment stated that there are currently “up to 14 mixed-gender places available in special care for children aged between 11 and 17 years”. While noting that a new specially adapted care facility opened in late 2017 for up to 12 young people, it was operating at “less than 50% capacity”.

The court stated: “At a time when there is an ever-increasing and unprecedented demand for placements in special care, it appears incomprehensible why this facility is not operating at full capacity.”

Judge Reynolds went on to look at the reasons why special care units are not operating at full capacity. She noted that “having heard evidence from the CFA on this issue, it is readily apparent that the difficulty is in relation to the recruitment of appropriately qualified staff, given the constraints on financial resources.

The agency has sought sanction from the department to address the matter by seeking to make the vacant positions more financially attractive, and a response is awaited from the department.”

Proper resources

The introduction of this long-promised legislation dealing with a very complex and difficult area of law is to be welcomed.

The legislation has provided a much-needed statutory legal framework for special care. The standards in special care units, along with a requirement of registration of special care units, have further been put on a statutory footing.

However, it is clear that, if the Child and Family Agency is to comply with its statutory obligations, there needs to be proper and adequate resources provided in this area.

Noteworthy

It is noteworthy that, in the conclusion to her recent judgment, Ms Justice Reynolds stated: “It is clear the CFA faces a number of challenges in relation to meeting the needs of extremely vulnerable children who place themselves at significant risk of harm. In light of the statutory duties now placed on it pursuant to the recent enactment of legislation and the very grave issues raised by this court, I will direct that a copy of this judgment be furnished to the department so that these matters can be brought to the urgent attention of the minister.”

 

Conor Fottrell
Conor Fottrell is a partner at Mason Hayes & Curran, specialising in public law litigation
Conor Fottrell is a partner at Mason Hayes & Curran, specialising in public law litigation