A 15-year-old boy who was selling class A drugs and voicing suicidal thoughts was belatedly placed in secure State care some seven months after the High Court ordered such a move, the Supreme Court has been told.
Five judges of the Supreme Court are hearing an appeal by the boy’s mother against the High Court’s refusal to declare that Tusla, the Child and Family Agency, was in contempt of a court order by failing to detain the teen in one of its special care units.
The agency had been legally obliged to apply for the detention order for the teen, when he was aged 14, last December. However, it told the High Court it could not act upon the order then as it has an acute staffing shortage that prevents it opening up enough beds for all of the children who need them.
He was among several children who Tusla could not detain in the specialist detention centres for 12- to 17-year-olds that are designed to de-escalate the behaviour and risk of harm.
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Mr Justice John Jordan, of the High Court, ruled that the contempt application did not follow the correct procedure. He referred to a court rule providing that an applicant seeking to invoke the contempt jurisdiction should bring a motion for “attachment” of the person allegedly in contempt.
On Tuesday, the mother’s legal team asked the Supreme Court to go against this and declare that the agency was in contempt of court when it failed to detain the boy.
Senior counsel Michael Lynn submitted that Tusla fought the case in the High Court “purely on a procedural basis”. It gave no explanation for why these special care orders are being “systematically breached”, he said.
At the time of the High Court hearing, the boy’s community placement had broken down, he was expressing thoughts of suicidal ideation, and he was found to be carrying cocaine, said Mr Lynn.
The boy’s mother felt she had to bring an application seeking a declaration of contempt against the State agency in an effort to get compliance with the earlier special care order, said Mr Lynn. It was felt that it was “not appropriate” to also seek an accompanying order for a Tusla representative to be committed to prison over the alleged breach, he said.
The agency’s senior counsel Feichín McDonagh, contended that the manner in which the mother brought her case raised serious issues of fair procedures.
He said the claim was brought by way of private action, rather than under an order of the rules of court, but contempt is “not a private law remedy” as it invokes the jurisdiction of the High Court to enforce its own order.
Ms Justice Aileen Donnelly questioned whether there was any onus on the mother to prove an intention to commit contempt. “Motivation is not really a question for the issue of contempt,” she said.
Mr McDonagh said contempt is “something more” than failure to comply with an order. His client is a public body working within constraints, including on the rates of pay it can offer special care staff. The court was told these rates must be sanctioned by the Department of Public Expenditure.
The five judges asked numerous questions about the specific barrier to compliance.
Mr Justice Maurice Collins said that “most disturbing issues” arise if a State agency can blame its non-compliance on a lack of resources.
He questioned whether the courts are “helpless” in the face of assertions– set out in this case in just two paragraphs in the legal documents– that public pay constraints prevent compliance with a judge’s order.
“That seems to call into question the proposition of whether this jurisdiction is in fact founded on the rule of law,” he said.
Mr McDonagh said his client has felt “enormous distress”, with its staff “bending over backwards on a constant basis to try to square the circle” of the shortage of special care places and to vindicate the rights of vulnerable children.
The appeal continues on Wednesday.
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