Judge asserts inaction cannot nullify rights

A review of current childcare policies and practices has reported that "dysfunctional and inadequate families are being cared for by dysfunctional and inadequate services". The report was commissioned by the State and accepted by the Minister for Health and Children.

It was presented to the High Court yesterday in the course of an attempt on behalf of a troubled child to force the Government to fund a 24-bed secure unit for such children at Portrane, Co Dublin.

The State is opposing the move and yesterday strongly defended its policy towards children at risk.

The court was told the Minister for Health and Children is committed to implementing the recommendations of a report, dated July 10th and entitled "A Report on the Requirement and Necessity for Special Care and High Support Residential Child Care Provision in Ireland".

Drafted by a firm of Scottish consultants at a cost of £10,000, the detailed 32-page report was disclosed to the court yesterday.

In an affidavit, Ms Ruth Barrington, Assistant Secretary in the Child Care Division of the Department of Health and Children, said that while the report was still in draft stage it was not anticipated there would be any substantive changes in the final version.

She said the Minister "has seen and accepted" the report.

Mr Justice Kelly said the report had failed to address clear terms of reference requiring it to estimate the number of secure and high-support places required by minors in Ireland, and to recommend the optimum number of places in any unit.

He was "not decrying" the report, but questioned whether the money spent on it might not have been better spent in providing the facilities required.

He said he dealt with such cases week in, week out, and had accepted evidence some time ago that some 60 places were required for vulnerable children.

Mr Aindrias O Caoimh, for the Minister for Education, said the report was not engaged in "a simple head count". It addressed the present situation and recommended a range of support mechanisms.

The report said special care units were a last resort and recommended that the development of high support units - those with a high ratio of staff to children and designed to offer "a measure" of physical security which varies according to the situation - should be the core of any specialist residential services.

The report also stated that, whatever the level of provision, the childcare infrastructure in its present state cannot support effectively and appropriately any such developments.

"The conclusion to be drawn from this review of current policies and practices is that dysfunctional and inadequate families are being cared for by dysfunctional and inadequate services," it said.

It said there was "no quick fix" solution. The creation of specialist residential care would take time, as would the development of alternative care models and the enhancement of existing child-care services.

During yesterday's hearing it emerged that the Eastern Health Board has changed its plans for the Portrane unit. It had proposed to develop a 48-bed detention unit there and had obtained planning permission for that, but is now planning to develop a 24-bed non-detention "high support" unit, for which a fresh planning application will be made.

Mr Patrick MacEntee SC, for the board, told the court it was anticipated the Portrane facility would not be open for some three years. A 24-bed special care detention unit at Ballydowd, Palmerstown, Co Dublin, would be open in 18 months.

In the meantime, the board would do all in its power to cater for children at risk, he said.

In the proceedings against the Ministers for Justice, Health and Education, the State and the Eastern Health Board, Mr Gerry Durcan SC, for the 15-year-old minor who is presently detained in Oberstown House, is seeking orders directing the State to make available to the board sufficient funding to allow it to build, open and maintain a secure 24-bed high-support unit at Portrane, or such other location as the court decides.

In the alternative, he is seeking orders directing the State to take all necessary steps and do all things necessary to facilitate the opening of the unit at Portrane or another location, or to take all steps to ensure there is adequate and proper secure high-support accommodation available for his client and other children with similar needs.

In the course of yesterday's hearing, Mr O Caoimh said the Minister was meeting his responsibilities and committing resources. The State was not seeking to set at nought the rights of children.

The particular development of a particular facility was a matter for the policy makers and not for the courts, he submitted.

Mr Justice Kelly quoted from Supreme Court decisions that where a court has declared constitutional rights exist these cannot be set at nought, and the court's powers in that situation were as ample as the Constitution required.

If he took the view that the State had failed, and continues to fail, in honouring its obligations in respect of constitutional rights decided by the court, was Mr O Caoimh saying that, in order to give effect to those rights, he could not direct policy?

Mr O Caoimh said the court could indicate and declare.

But, the judge asked, if he made a declaration and it was ignored, what did he do then?

Counsel said the court could not direct agencies to implement policies in a certain way or direct that buildings should be erected.

The judge said there would never have been continued desegregation in the US if the US Supreme Court had not said it would direct policy in the matter. He said rights could be set at nought by omission or commission and by doing nothing, as well as through a deliberate policy not to implement them.

Mr O Caoimh said that far from a situation where nothing was being done, considerable resources had been allocated to the problem. The Minister was meeting his responsibilities and recognised the need for integrated planning and development. He had indicated he would help the EHB develop Portrane.

Mr MacEntee, for the EHB, said that when the Portrane and Ballowen facilities are built, there would be 36 detention places available and 24-30 non-detention places. The board agreed in principle with the suggestions in the report accepted by the Minister.

The hearing resumes on Tuesday.