A traumatised and dangerous young woman must be released from a secure care unit despite the “imminent” risk she poses to the lives of her mother and other women because there is no legal basis for her continued detention, the president of the High Court has ruled.
There is "simply no legal right or entitlement" to detain the 18-year-old woman so as to protect those to whom she poses a serious risk because of her threats to kill and maim them, Ms Justice Mary Irvine said.
The judge agreed to put a 48-hour stay on the ruling to allow the sides consider her decision and allow “some small comfort” to the woman’s mother to feel safe even for that time.
The judge said she recognised the mother now finds herself in “unimaginable” circumstances and every effort should be made to ensure the mother, and other women, are protected.
The mother, who was in court, has left her home and has been recently rehoused by a local authority because of the threat posed by her daughter.
In her ruling on Tuesday, the judge said this case was “probably the most disturbing” she had had to decide in her 13 years as a High Court judge.
The unanimous medical evidence since March last is that the woman has capacity to make decisions about her person and welfare, with the effect she does not meet the criteria for wardship, the judge ruled.
Nor did she meet the criteria for detention under the Mental Health Act because, while she has a number of personality disorders, she has not been diagnosed with a mental disorder.
The court was asked to find some other basis, possibly under its inherent jurisdiction to continue her detention, but there was no such basis, the judge held.
Hard cases make bad law, the court was being asked to effectively make a preventative detention order because of the risk the woman poses to the mother and other women, she said. “People cannot be detained because of fears they may commit a crime, even a crime as heinous as the one threatened here.”
On the basis of those and other findings, she granted an application by the Child and Family Agency to withdraw wardship proceedings initiated by it last year for the woman, in advance of her 18th birthday. She also lifted the detention and other orders made in those proceedings.
Unanimous medical view
The judge also held there is no basis for directing an independent medical assessment with a view to a fresh wardship inquiry for reasons including there had been no change in the unanimous medical view that the woman has capacity.
She stressed she was not ruling out the woman and/or her mother may seek to advance their claims via another legal procedure but said what was being proposed would appear to involve the law being “radically and significantly redrawn”.
The woman has various personality disorders and a medical disorder and has been in care since she was aged 12. She has also been assessed as having developmental immaturity.
She has been in a children’s secure care unit for the past two years.
She is facing assault charges in the District and Circuit Courts and is on bail concerning those on condition she remains in the children's unit.
Because her detention in that unit was grounded on the High Court orders, today’s development in the High Court case may lead to a bid to change her bail conditions.
The woman had opposed the wardship petition, initiated in July 2019, until earlier this week when lawyers for her mother and herself suggested the wardship jurisdiction could be extended to include a person in her situation with a number of personality disorders.
The court also heard the woman wanted to be placed in secure detention, preferably in the UK, and did not wish to go to an onward placement arranged for her by the CFA as she considered it unsuitable to her needs.
Lawyers for the woman and her mother had urged the court to find some basis to extend the detention under some form of expanded wardship jurisdiction, pending the court sending out an independent medical doctor to undertake a fresh assessment of the woman, but their application was opposed by the CFA and HSE as legally unstateable.
The judge said, in this case, four psychiatrists have all agreed the woman has capacity to make decisions and to control her conduct and actions.
The evidence is she can control her actions but has her mind set against that, the judge said. She had said she would accept treatment to address childhood trauma but would not accept treatment concerning control of her actions.
She had said: “I can stop myself, I just choose not to,” the judge said.
For the various procedural and legal reasons outlined in her ruling, she could not continue the detention orders, could not direct a new wardship inquiry or make short term detention orders, the judge concluded.
She praised the “extensive” efforts of the CFA to help the woman over years, noting it had approached 36 units, including in the UK, in an effort to secure a place for her without success. While the woman had said the onward placement arranged for her by the CFA was not suitable, the court had no evidence of that, she added.
