Many of those who campaign for children's rights will be saddened by yesterday's Supreme Court ruling which overturned a High Court order concerning children at risk. The Supreme Court found that Mr Justice Peter Kelly had crossed the boundary between the powers of the courts and those of the Government when he ordered the Government to provide 46 additional places in special care and high support units by early next year.
Since the mid-1990s Mr Justice Kelly has been putting enormous pressure on the State to face up to its responsibilities to some of the most needy children in the State. He was the latest in a long line of judges who railed at the inertia of institutions, particularly Government Departments and health boards, in the face of the needs of these children and their families.
He, however, persisted with these cases in a way which must have surprised and exasperated State agencies which were used to being able to get away with promises of future action without being held accountable for whether such action was actually taken. It was this persistence which led him to insist that the State keep to its own deadlines for building special care and high support units. That, in turn, led Mr Justice Kelly to offend the principle of the separation of powers, as the Chief Justice, Mr Justice Keane, put it.
Yesterday, the Minister for Children, Mary Hanafin TD, reaffirmed the Government's commitment to the provision of high support and special care places for the small number of children in need of special care or protection. The number of such places has increased from 17 in mid-1997 to 93 at present. An additional 41 places are planned. Nobody can doubt Ms Hanafin's sincerity or her effectiveness as Minister for Children. But very few people would accept that those 93 places would exist today were it not for Mr Justice Kelly, let alone the 41 places which are promised.
Some people working in child care believed Mr Justice Kelly's persistence had the effect of placing too much emphasis on secure residential care and too little on preventive measures in the community. They believed health board officials concerned with child care were spending too much time in court or dealing with issues arising from the High Court cases and that this was detrimental to their ability to work in the interests of other children.
If this is so, it must also be asked whether these officials would have been busy creating preventive community services or, indeed, non-secure residential care if they were not being kept occupied by the High Court. Certainly that is what the officials would want to do - but what reason have we to believe they would have got the resources with which to do it, given the record of the State in this regard?
Mr Justice Kelly may have crossed a boundary and may find himself constrained as the division between the courts and government is asserted by the Supreme Court. Who will speak out now for the children?