THE HEALTH Service Executive has told the High Court it is seeking to regularise the legal status of Irish children being detained in treatment centres in the UK following a ruling by the European Court of Justice (ECJ) that the detentions breached EU law.
Seven children are being detained at two secure centres, one in Scotland and one in England.
The centres are being used by the HSE because there is no suitable place for treating the children in Ireland.
Late last month, the ECJ ruled that if a child is sent by court order from one member state to be detained in a secure care institution in another member state, the detention must be declared enforceable by an authorised public body in the receiving state.
The decision was made after the HSE sought an order from the High Court to have an Irish child detained in England.
The High Court had stated it required consent from the central authority for England and Wales. A letter was provided to the court from the care institution offering a place to the girl under EU legislation and she was transferred.
But the High Court had some concerns and forwarded a series of questions to the ECJ.
The ECJ found the institution to which the child was sent could not be considered an authorised public body.
Yesterday, Felix McEnroy SC, for the HSE, told Mr Justice George Birmingham the Scottish authorities had been “very co-operative” in trying to ensure the detentions, at the Kibble Education and Care Centre in Paisley, were regularised.
“The Scottish are full square behind making this effective,” he said.
“They will do all that is necessary to ensure compliance.”
He said the Scottish central authority on behalf of the government had asked the HSE to “stay its hand” until they had worked out what needed to be done.
The situation in England was “different”, Mr McEnroy said.
The children there were being detained at St Andrew’s Centre in Northampton.
The HSE had submitted a renewed request for fresh consent following the ECJ ruling but understood Northampton County Council, an authorised public body, had not yet received the request.
The HSE could ask the English high court to grant the consent, but there were some “very sensitive issues of law”, and using the court to force the matter was “a last resort”.
Tim O’Leary SC, acting for the guardians ad litem (court-appointed guardians) of some of the children, said there was a “vacuum” following the ECJ ruling and the situation needed to be rectified as soon as possible.
He referred to one of the children in St Andrew’s, the validity of whose order has been questioned, and said he was “very happy” where he was.
Another child, sent to Kibble in May, had experienced a “disturbing incident” over the weekend, the court was told, and wanted to leave.
Mary O’Toole SC, counsel for the guardian ad litem of a third child, said the ECJ judgment meant her client’s charge was “in Scotland with no lawful basis”.
“It puts us in a bit of a pickle,” she said.
The child was inclined to “vacillate” about whether he wanted to be at Kibble or not.
It was a “delicate situation” to explain the legal circumstances to him and it would be difficult if steps were not taken soon. “We really need something to happen very quickly,” she said.
Mr McEnroy said he would be talking with legal counsel in England about progressing the issues this week.
Mr Justice Birmingham adjourned the case to Thursday.
