Some of the implications of the Supreme Court ruling last Monday against Mr Justice Peter Kelly's orders relating to at-risk children will become clear tomorrow when the case of another child comes up.
The case concerns a troubled teenage boy who came before him on Monday afternoon, hours after the Supreme Court judgment. Mr Justice Kelly expressed concern as to whether, in the light of the judgment, he was entitled to make a detention order.
He said he wanted an opportunity to consider the Supreme Court judgments and adjourned the case to tomorrow. He said he would hear submissions then from the parties. In the meantime, the 15-year-old is expected to remain in a State residential unit which is not secure.
If the judge concludes he does not have power to order the boy's detention, he may be released on to the streets. The health board does not have legal power to detain him for his own protection and can legally do very little if he leaves an unsecure residential unit.
The Children's Act passed earlier this year, which includes a range of measures supporting vulnerable children, has a section providing for the health boards to order the detention of children in secure units. However, that section has not yet been implemented.
The Minister of State for children, Ms Mary Hanafin, told The Irish Times yesterday this section went with two others, relating to the Special Residential Services Board (SRSB) and the Family Welfare Conference respectively.
The SRSB is already in operation, and the Family Welfare Conference has been piloted, she said. These were necessary as the framework for powers relating to the detention of unconvicted children, and regulations were being drafted in relation to such powers. She expected them to come into operation within the next few months.
In the meantime, if Mr Justice Kelly decides he also does not have this power, there will be no legal mechanism for the detention of such children.
Although the specific orders made by Mr Justice Kelly were found, in the words of the Chief Justice, to have "crossed the rubicon" between the powers of the judiciary and those of the executive, that judgment and that of his fellow judges allowed for other measures to be taken by the courts.
Mr Justice Murray made it clear that a declaratory order outlining the obligations of the State could be made. This means that a person could ask the court to say that the State had violated his constitutional rights, spelling out how, and that it should rectify the matter, without specifying what had to be done.
It is likely that the court could even ask the State to report to it what it proposed to do.
Mr Justice Murray said a mandatory order, directing the executive to fulfil a legal obligation, could only be granted in "exceptional circumstances where an organ or agency of State had disregarded its constitutional obligations in an exemplary fashion".