Employing enough specialist workers to staff the State’s three special care units for highly vulnerable children seems to be “within the realms of possibility”, a High Court judge has said.
There is no point in the “long-identified” issue remaining, said Mr Justice John Jordan on Thursday as he asked lawyers for various Government parties to relay to their clients the undesirability of the current staff shortage.
He said the units, which are specialist settings designed to address a child’s risk of harm, are “state of the art” and the staff there are doing “extraordinary work” in trying circumstances.
The judge said the special care units, where children can be detained on foot of court orders, are operating at about half capacity due to staff shortages the CFA has said previously it cannot fix due to constraints not of its making, including relating to public sector pay constraints.
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He was earlier told by Sara Phelan SC, representing various Government departments, Ireland and the Attorney General, that a boy’s case seeking to hold the Child and Family Agency (CFA) in contempt of court is an issue between him and the agency.
While reference to her clients’ relevance has been “alluded to” in the boy’s legal papers, no cause of action has been made against them, who are notice parties, rather than co-defendants, in the case against the agency.
While she can assist the court with legal matters, she has difficulty in being involved simply to appraise the court on a “factual matrix that may or may not have happened behind the scenes”.
The contempt of court application is being pursued by the teenager suing through his mother, neither of whom can be identified. They allege Tusla is in contempt of a December 2023 court order for the boy to be detained at a special care unit.
The court heard previously the boy, who has conditions arising out of childhood trauma, has been at “very serious risk” for months due to his cocaine dealing, drug addiction, absconding from State residential care and rough sleeping. It is also alleged he has been assaulted, threatened and exposed to sexual and physical abuse.
He has previously been in special care, but his situation declined quickly after his release.
On Thursday, senior counsel for the CFA, Feichín McDonagh, with Sarah McKechnie BL, asked the court to agree to deal with some issues raised by his client as preliminary matters to save costs and court time in the event he succeeds on these points.
He said the court should, before reaching a full trial of the contempt application, determine whether the case has been brought per law. He submitted that the plenary proceedings for contempt were not brought correctly and contains no “cause of action” against his client.
There is “no precedent” in this State since or before independence for a private law claim of contempt to be brought in a private law action against anyone, let alone a state agency, he said.
He said this case is “100 per cent, wholly punitive”, rather than coercive, in intention, as contempt requests should be. He could not see its purpose other than to “embarrass” and draw “public obloquy” on his client.
The teenager’s senior counsel, Michael Lynn, instructed by E.P. Keane & Company solicitors, said his “very measured” application has been made reluctantly. This is not a “witch hunt”, he said, and he is not seeking the attachment and committal to prison of a Tusla representative over the alleged contempt, as this would not be “constructive”.
Mr Lynn, with Brendan Hennessy BL, said he is entitled to bring a plenary action of this kind, and the CFA has produced no legal authority to support his contention to the contrary. This litigation choice was made so the Government departments could be added, as the CFA has said in other court cases that it is circumstances beyond its control, such as public pay constraints, that prevent it being able to fully staff the special care units.
While the agency initially said it would tackle the case “head on”, its approach is now to bring procedural motions to do “everything possible” to avoid coming to court to face the contempt application, he submitted.
The CFA’s application, which also seeks the discharge of certain notice parties, was adjourned for final submissions.
In a relevant judgment last week, the Supreme Court said the contempt jurisdiction “would naturally arise” in the event the CFA cannot comply with a special care order.
While the issue was “purely hypothetical” in the appeals before that court, Mr Justice Gerard Hogan said: “In a democratic state governed by the rule of law, all organs of the State are accordingly obliged to comply with court orders of this kind.”
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