Tusla’s application to have a young Somali who is charged with the murder of a Ukrainian teenager last year declared an adult two days before he says he turns 18 is “absolutely farcical”, a judge has said.
Dublin District Court judge Conor Fottrell asked counsel for Tusla on Wednesday what the purpose of its application for an age inquiry into the young person now was, given it would not be completed until June 18th.
The young person, according to the dates provided when he applied for asylum last year, will turn 18 on June 20th.
The court is conducting an age inquiry under section 32 of the Childcare Act 1991 regarding the Somali national, who is charged with the murder of Vadym Davydenko (17) in Donaghmede, Dublin, on October 15th last.
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The agency no longer believes he is a child, despite having deemed him “presenting as a minor” last August. He remains on remand in Oberstown Children Detention Campus awaiting trial.
Deirdre Lynch, barrister for the young person, questioned the “purpose” of continuing the inquiry. It is expected to run for two more days, set for June 10th and 18th.
“Are [Tusla] looking for this court on the 18th June to make a determination that this person is not entitled to services [for two last days]?” asked Lynch. “At this point we are coming to the point of futility and wasting court’s time, an abuse of court’s time.”
Gardaí investigating the alleged murder of Davydenko believe the accused was wrongly deemed a child by Tusla and was actually an adult at the time of the teenager’s death.
The judge said the criminal proceedings were a matter for the criminal courts and not of concern to his court.
His court “goes on the basis of the evidence provided by [Tusla]”. The agency had been granted an interim care order for the young person last August having told the court he was a child.
In January Dublin District Court judge John Campbell refused to extend the interim care order, saying he did not believe the Somali was a child.
Tusla successfully challenged Campbell’s determination in the High Court before conducting a second assessment of the young person’s eligibility for services in March. This deemed him to be over 18.
“The position of the agency here is farcical, absolutely farcical,” Fottrell told counsel for Tusla.
“Your client judicially reviewed [Campbell’s] decision . . . that was your determination then . . . the situation since . . . is to go back to the decision that was made by the judge in January.”
What he was being asked to do by Tusla, in determining whether the young person was a child or not two days before he accepted he would be an adult, was “questionable”.
Tusla’s counsel said the agency was “statutorily obliged” to seek the section 32 inquiry in court and bring its evidence to court.
He said the young person was still entitled to be “afforded the fair procedures established under the care order”, he said.
It was “a highly unusual set of circumstances”, said the judge, to be asked to determine whether a young person in care was entitled to be in care just as they were “about to age out” of the care system.
It was an “unrealistic” and “unfair” ask of the court, said the judge.
