Kelly found to have erred in making order against State
The Supreme Court has overturned, by a four to one majority, a High Court order directing the State to adhere to its own time-scales for the building of special-care and high-support units for children who are at risk. The injunction granted by Mr Justice Kelly was aimed at ensuring that some 46 additional places would be available by early 2002.
The reversal of Mr Justice Kelly's order, and questioning by some of the five judges of the correctness of a 1995 landmark judgment which has formed the basis for many actions taken on behalf of children, has now created doubt over the jurisdiction of the High Court to make detention orders for troubled children. Later yesterday, when dealing with the case of an at-risk teenage boy, Mr Justice Kelly expressed concern as to whether he was lawfully entitled to make a detention order. He said that he required time to consider the Supreme Court decision and he adjourned the case until Thursday.
In his Supreme Court judgment, the Chief Justice, Mr Justice Keane, said that Mr Justice Kelly's mandatory order offended the principle of the separation of powers and involved the High Court in effectively determining the policy which the Executive had to follow in dealing with a particular social problem.
It was not adequate to argue that all the order did was direct the State to adhere to its own programme. Such a mandatory order would make it necessary for the Minister to get the High Court's sanction for any change of policy in the area of children at risk which involved a departure from the precise terms of the order.
As a "matter of principle", however, much though one might sympathise with Mr Justice Kelly's "obvious concern and exasperation" at the manner in which the problem of disturbed children had been addressed, the order should not have been granted. A "rubicon" had been crossed, "clearly from the best of motives", in which the court was moving to undertake a role conferred by the Constitution on the other organs of State.
Mr Justice Hardiman said that such an order could only be made as an "absolutely final resort" in circumstances of great crisis. No such circumstances had occurred since 1937. The courts could not assume a policy-making role in relation to the many social and economic issues which formed the staple of public debate.
Mr Justice Murray said that the courts could only make a mandatory order compelling the Executive to fulfil a legal obligation when an organ or agency of the State had disregarded its constitutional obligations in an exemplary fashion. There had to be a conscious and deliberate decision to breach its constitutional obligation to other parties, accompanied by bad faith or recklessness.
Mr Justice Murphy expressed the view that a landmark case in the advancement of children's rights - that of FN in 1995 - was wrong in law. In FN, Mr Justice Geoghegan said that the right of children to appropriate accommodation and care was one of the unenumerated rights under the Constitution which the State was required to uphold in the event of parental default.
Mr Justice Hardiman reserved his view on FN, insofar as it might be read as requiring the State to detain unconvicted young persons in secure units. The Chief Justice said he would have the "gravest doubts" whether the courts at any stage should assume the function of declaring that "socio-economic rights" are unenumerated rights guaranteed by Article 40 of the Constitution.
It was the State's delay in putting into effect measures to vindicate the rights referred to in FN which led to Mr Justice Kelly's order of February 2000 directing the State to take all steps necessary to bring into operation units for disturbed children in seven health board areas. The judge found that there was "culpable slippage" by the Department of Health and Children in adhering to its timescales for the development of those units and that children were being damaged as a result.
The State appealed that mandatory order to the Supreme Court. The majority court yesterday agreed with the State's argument that such a mandatory order breached the principle of the constitutional separation of powers.
The Chief Justice said Mr Justice Kelly's orders in this and the Portrane case were "without precedent" because they not only found that the Executive breached its constitutional duties but also required the executive power of the State to be implemented in a specific manner by the expenditure of money on defined objects within particular time limits.
Mr Justice Hardiman said the central question was whether, in a situation where a judge is dissatisfied with government policy in a particular area, it was open to that judge to approve a policy, make orders for its execution with public money and prevent any change of policy without court permission.