The constitutional rights of two vulnerable 16-year-olds, whose lives are at serious risk, continue to be breached by Tusla’s “conscious and deliberate” decision not to comply with its statutory obligations, a High Court judge has said.
In a ruling delivered late on Friday evening, Mr Justice Mark Heslin directed the agency to comply with its statutory obligations to formally “determine” whether the children need special care and to apply to the High Court for an order placing them into a special care unit.
The judge said the two teenagers had suffered “grave harm” as a result of “egregious and extreme” delay in seeking to place them in special care, which Tusla did not suggest they do not need.
“This is not a situation where these children may in the future come to harm… both have already suffered, and continue to suffer, harm of the most serious kind as a consequence of [Tusla’s] delay in complying with its obligations,” he said.
Mr Justice Heslin directed that a copy of his judgment must be immediately furnished to the Department of Children and the Department of Public Expenditure and Reform.
Special care, which is designed as a specialist setting to address a child’s behaviour and risk of harm, is delivered at three units around the country: Ballydowd and Crannóg Nua in Dublin and Coovagh House in Limerick.
The Child and Family Agency (Tusla) submitted that the units have physical capacity for 26 children but, due to staff shortages rather than financial constraints, only 14 beds are currently available, all of which are occupied. There is also a “chronic lack” of appropriate “step-down” placements, which is affecting the agency’s ability to move children on from special care, it added.
Outlining the situations of the teenagers, Mr Justice Heslin said one is a girl in State care since 2021 who goes missing nearly every day from her residential placement.
Gardaí had taken her to safety in May 2021 after she was found one night in the home of a known sex offender. The girl had a very troubled history, said the judge, with suspicions of physical, sexual and emotional abuse and neglect.
Her behaviour has escalated and risk profile worsened, due to alcohol and cocaine misuse and potential domestic violence from a new boyfriend.
Tusla workers also have grave concerns that the girl is being sexually exploited by different adult men and that sexual videos of her have been shared on social media by a young man, the judge said.
The judge said the reports show the girl is already exposed to the “gravest harm” from which her family and current placement cannot keep her safe.
Tusla stated last July that an application was being made for the girl to go to secure care, but this did not occur and her situation has deteriorated, the judge said.
The second teenager has been diagnosed with certain language disorders, meets the criteria for an autism diagnosis and has a heart condition. He appears to be taking a “cocktail of drugs” on a daily basis and has been dealing drugs, the judge said.
The boy, who has been known to Tusla for more than a decade, has suicidal thoughts and thoughts of harming others, particularly his mother if he was returned home, and has picked up various criminal charges.
In the spring of this year he was placed in emergency foster care and has since been in 15 different placements, including emergency units, a hospital and in “special emergency arrangements” such as hotels, the judge said. His court-appointed advocate reported in July that he has been missing from care, spending one night out of seven weeks in his placement.
Tusla’s social work department recommended in early July that he requires special care and protection due to the real and substantial risk of harm to his life and welfare, the judge said.
Tusla had sought to dissuade the judge from making mandatory orders requiring it to comply with its obligations as it argued these would be “impossible” to comply with due to capacity and staffing challenges within special care and, therefore, futile.
Mr Justice Heslin disagreed, saying it is not impossible for it to make a formal determination and to apply for a special care order. The non-availability of a placement cannot be a reason for not making a special care order or for Tusla applying for one, he added.
The judge said almost five years had elapsed since his colleague, Ms Justice Leonie Reynolds, wrote in a decision that it was “imperative that the staffing issue is addressed as a matter of urgency to ensure a continuum of State care to the most vulnerable children in society”.
He stressed he was not criticising any individual within Tusla and said he “does not doubt for a moment” that staff at all levels are working to the best of their abilities amid staffing constraints. The court has time and again witnessed the results of “Herculean work” under very difficult circumstances by Tusla professionals.
He said he would list the cases to return before him at the earliest date possible.
