The High Court has reserved its judgment in an unprecedented case seeking to hold a State body – the Child and Family Agency – in contempt of a court order providing for a teenage boy’s detention in a special care unit.
Mr Justice John Jordan said the issues before him were serious and it is not likely he will conclude his ruling in under a month.
He was earlier told two further applications have been initiated alleging contempt of court on the part of the agency, which is also known as Tusla, regarding orders for two other children’s proposed placement in special care units, which are specialist settings designed to address their risk of harm.
These are due to come before him on Thursday, but the agency’s senior counsel, Feichín McDonagh, said he will be seeking an adjournment as many of the issues overlap with the case the judge is first tasked with deciding.
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The court has heard on many occasions the agency’s claim that the special care units cannot be utilised to physical capacity due to a staffing crisis caused by statutory restrictions on pay.
Issues around the making of special care orders the agency would struggle or find impossible to comply with were recently considered by the Supreme Court. In a lead ruling for that court, Mr Justice Gerard Hogan said the contempt jurisdiction “would naturally arise” if the agency cannot comply with a special care order, but the issue was, at that stage, “purely hypothetical”.
On Wednesday morning, senior counsel Michael Lynn, representing a teenage boy suing through his mother, said the agency has engaged in an “unprecedented breach” of a court order with grave consequences for the child.
The three month order for the boy’s detention in special care was made by Mr Justice Jordan last December. It expired last week, but another one was made.
Mr Lynn reiterated that his proceedings only seek a declaration of contempt and do not ask for the attachment and committal to prison of a Tusla representative, an option that typically accompanies a contempt application. No individuals are being criticised, he said, adding that the case alleges “systemic failure – an institutional failure”.
The court heard previously that the teenager has conditions arising out of childhood trauma and has been at “very serious risk” for months due to his cocaine dealing, drug addiction, absconding from State residential care and rough sleeping. It is also alleged he has been assaulted, threatened and exposed to sexual and physical abuse.
He has previously been in special care, but his situation declined quickly after his release.
Mr Lynn, with barrister Brendan Hennessy, instructed by EP Keane & Company solicitors, submitted that there is an “absence” of information before the court explaining what the agency is doing to comply with the court order.
He said the agency is “fully cognisant” of its noncompliance, which constitutes a “clear and unambiguous contempt”.
His application was supported by the boy’s court-appointed independent advocate (guardian ad litem) and his father.
The agency’s barristers, Mr McDonagh with Sarah McKechnie, urged the court to refuse the request. Mr McDonagh submitted that the proceedings were brought improperly and not per the relevant rules, law or fair procedures.
He told the court the case is “not about finding a bed”, but is the trial of the alleged misdemeanour of contempt.
Case law emphasises the importance of “meticulously” following the law and procedures when an allegation of contempt is made, he said.
He wanted to “nip in the bud” any suggestion that, because the application does not proceed further than seeking a declaration of contempt, fair procedures are not required. Fair procedures apply in the context of any issue of alleged contempt, he added.
Last week Mr Justice Jordan dismissed the agency’s application for certain matters to be dealt with in advance of a full trial of the case. On Wednesday afternoon he reserved his decision in the substantial application, which he had scheduled on an expedited basis.
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