People caring for disturbed children do "an appalling job under appalling circumstances" and are "scapegoated any time something goes wrong", the High Court was told yesterday.
Mr Patrick MacEntee SC, for the East Coast Area Health Board, urged Mr Justice Kelly not to embark on a "blame exercise" against those who gave evidence in the inquiry into the circumstances of the escape from care of Kim O'Donovan (15) last July and the steps to find her before she was found dead, of a heroin overdose, in a bed-and-breakfast in Dublin on August 24th.
Mr MacEntee was making submissions at the end of the seven-day inquiry. Mr Justice Kelly reserved his findings. Mr MacEntee said the inquiry had a limited purpose. While it was regrettable that a letter from Kim to Mr Justice Kelly last April was never sent to the judge, the letter was not relevant. Care-workers had since been informed that children were entitled to access to the judges and others.
Although the High Court had declared children's constitutional rights to appropriate care and accommodation six years ago, the detention of children was still not legislated for. To fill the void, the High Court's inherent jurisdiction had been invoked. This had disadvantages. Hearings had to be in public and children lost privacy.
Without legislation, guidelines for those working with disturbed children were needed on what information should be put before the court. People working with disturbed children had to make life-or-death decisions knowing if they didn't get it right, they were liable to end up being unsympathetically cross-examined at the High Court .
Mr MacEntee said the Social Services Inspectorate had reported on Newtown House, where Kim was placed from October 1998, on the basis it was a secure unit when it was never secure but had taken children who needed secure places and tried to care for them. It had taken the risk of doing that which no one else in society would do.
While it would have been better if the court was told of the intention to allow Kim to work part-time, it was regarded as highly desirable for Kim to have that work. The court should be slow to fix a general rule as to when approval must be sought for off-site outings.
After Kim ran away, the board did all in its power to see the gardai were promptly informed. While it was a mistake that gardai were not given the July 28th letter from Kim to Mr Justice Kelly, in which she said she was staying in a B & B, it was a mistake which could be avoided in the future.
Mr Donal O'Donnell SC, for the State, said the test for this inquiry was whether it made things better or worse for those dealing with children in care. Mr MacEntee had raised issues not relevant to the inquiry, including the absence of legislation, the role of the Social Services Inspectorate and the status of Newtown House. This was an attempt at scapegoating.
The court could not have jurisdiction to conduct "a generalised and half-baked" inquiry and should not make "half-baked" recommendations on the basis of "late-breaking" submissions by counsel.
Mr Cormac Corrigan SC, for Kim's parents, said Mr MacEntee seemed prepared to accept value judgments in his clients' favour but not against them. If Mr MacEntee's submissions on the inquiry's extent were correct, the judge could not make recommendations because he would be implying something was not done in the past.
Mr Shane Murphy SC, for the Garda, submitted the court was exercising a judicial function.
