The State has asked the Supreme Court to overturn a High Court judge's order directing it to adhere to its own time scales for the building of units for troubled children in seven health board areas.
The mandatory injunctions, made by Mr Justice Kelly, were a breach of the doctrine of the separation of powers, and the courts were not entitled either to make policy or tell the State it was not entitled to change policy, Mr Paul O'Higgins SC, for the Minister, argued.
However, Mr Gerry Durcan SC, for the applicant children, argued that the judge was entitled to make the orders given the State's continuing failure to vindicate the constitutional rights of children to appropriate care and accommodation - rights declared by the High Court in 1995.
Mr Justice Kelly granted the disputed injunctions in February 2000 after describing as "a scandal" the State's failure to meet the needs of disturbed children. The judge also found there was culpable slippage by the Department of Health and Children in adhering to its own time scales for the development of units.
The injunctions directed the State to take all steps necessary to build and bring into operation special-care and high-support units for troubled children in the seven health board areas outside the former Eastern Health Board area. When implemented, the orders will mean some 40 additional places will be available in units in Clare, Cork, Limerick, Monaghan, Tipperary and Waterford as well as on other sites not then specified in the Mid-Western and Southern Health Board regions.
Yesterday, Mr O'Higgins said that the principal point in the appeal - and a point of principle - was the extent to which the courts might intervene, by mandatory order, in relation to positive schemes to be embarked on by the Executive in relation to the discharge by the Executive of its functions.
Counsel said that the Minister had refused to give an undertaking in similar terms to the order because this would have the effect of saying that the Minister was beholden to the court on a matter of policy. While the State had not appealed a previous order by Mr Justice Kelly directing the building of another unit for children at Portrane, Co Dublin, it had never conceded that such a power existed.
Mr Durcan said that the Supreme Court must see the orders in the context in which they were made. After Mr Justice Geoghegan declared in 1995 that children had constitutional rights to appropriate care and accommodation, he gave the State an opportunity to remedy the situation. Within a week, the State set out specific proposals to the court to do that.
More children were taking cases and a situation arose where Mr Justice Kelly was dealing with most of these and had to make orders detaining children in criminal facilities such as St Patrick's Institution because no appropriate places were available, counsel said.
All of this had led to Mr Justice Kelly, in late 2000, looking into what had happened to the arrangements which the High Court had been told, in 1995, would be put in place. He found a "sorry tale" and it was clear that the children's rights had not been vindicated. It was because of this that the application for the injunction was made.
The appeal continues today.
