Judge doubts if he can make detention orders for children

A High Court judge yesterday expressed serious concerns whether the High Court had jurisdiction to continue to make orders to…

A High Court judge yesterday expressed serious concerns whether the High Court had jurisdiction to continue to make orders to detain at-risk children.

Mr Justice Kelly said his concerns arose because of a Supreme Court decision earlier this week which, it seemed to him, rendered "even more fragile" the basis for such detention orders.

However, lawyers for the State, health boards and several children argued that the court had jurisdiction to make such orders and said the Supreme Court had not stated otherwise.

Mr Patrick MacEntee SC, for the East Coast Area Health Board, said the court had a duty to uphold the children's constitutional rights. He agreed with Mr Justice Kelly that, if there were no places for the children, the court had no further function.

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Mr Justice Kelly said the problem would not arise for the courts if the health boards had statutory powers to detain children.

It was 10 years since the health boards were given statutory responsibility for the welfare of children in their care but they still had no statutory powers to meet those responsibilities.

Mr Paul O'Higgins SC, for the State, said it was planned the legislation would be in operation next April.

The court also heard the issue regarding the detention of children was to be addressed by the European Court of Human Rights in relation to the case of a disturbed teenage boy with no criminal convictions who was detained in St Patrick's institution.

The Supreme Court held that the High Court had jurisdiction to order the boy's detention there in the absence of a more suitable alternative but the boy's lawyers complained to the European court, which deemed the complaint admissible. The judgment is awaited.

The matter of the courts' jurisdiction to order the detention of children was raised by Mr Justice Kelly after the Supreme Court on Monday overturned his High Court order directing the State to adhere to its own timescales for building and opening units for children at risk. The court held the order breached the principle of the separation of powers.

When dealing with a number of cases of disturbed children yesterday, Mr Justice Kelly declined, against the wishes of all the parties involved, to make an order continuing the detention of a troubled teenage boy in a State residential unit for children. The court heard the boy comes from a very dysfunctional family. His father and mother have serious alcohol problems.

Lawyers for the 15-year-old boy, the State, the East Coast Area Health Board and social workers had urged the judge to make the order, saying it was in the boy's best interests.

Mr Justice Kelly said he was assuming, for the purposes of this case only, he had power to make detention orders. His general policy was not to make such an order unless it could be complied with. This boy had absconded 26 times from the unit and the detention order was such in name only.

In another case yesterday, the judge did make an order for the continued detention of another troubled boy in Oberstown Boys' Centre pending the boy's removal to an open unit next March.

Earlier yesterday, the judge asked for submissions, in light of the Supreme Court decision, on whether the High Court has jurisdiction to make detention orders.

Mr Gerry Durcan SC, representing the 15-year-old boy, argued the High Court has power to make detention orders. Mr O'Higgins SC, for the State, and Mr MacEntee SC, for the ECAHB, agreed.

Mr Durcan submitted that this week's Supreme Court decision - the "TD" case - did not alter the jurisdiction of the High Court to make detention orders because there was another binding Supreme Court decision - the "DG" case - stating that the High Court could make such orders.

Mr Justice Kelly said the DG decision and other jurisprudence regarding the making of detention orders had their basis in the "FN" decision of 1995, which had been called into question in this week's Supreme Court decision.

In the FN case, the High Court had held that children had constitutional rights to appropriate care and accommodation.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times