Judge concerned about AG's advice

A 13-year-old boy described as "out of control" was detained for five days in Store Street Garda station in Dublin because there was no other place for him, it emerged at the High Court yesterday.

Mr Justice Kelly said he had concerns about advice given by the Attorney General which appeared to suggest that where the State had failed to make places available for such children the courts should be asked to vary their orders sending them to appropriate centres.

Mr Conleth Bradley, for the State, said the only option available now for the boy was a bed in an assessment centre which was not secure. This bed had been designated by the High Court for another troubled child who has absconded. If that child is arrested, another place would have to be found for the 13-year-old.

It was an unsatisfactory solution, if it was a solution, but it was all that was available. Staff would be allocated to the boy to guard against escape.

Mr Justice Kelly, who on Tuesday directed that the boy remain at Store Street because there was nowhere else, ordered the child to be sent to the centre which was not secure, and said he would review the matter next Tuesday. He said the case was "just another example of the years of neglect regarding the provision of proper services". The solution offered was "another holding operation" where a child was being placed in conditions sub-standard to his needs.

The boy had been convicted on criminal damage charges and the district court last week ordered his detention for two years at Oberstown Boys Centre, a State remand centre. Gardai arrested him and brought him to Oberstown but were told it was full and there was no place for him.

On advice from the Attorney General, they brought the boy back before the district court, which refused to vary its order for his detention in Oberstown. In those circumstances, the boy was brought back to Store Street and the matter went before the High Court on Tuesday evening.

Mr Justice Kelly said he had concerns about the Attorney General's advice, which appeared to be that the warrant issued by the district court committing a child to a detention centre was mandatory and, where a centre refused to accept a child, the Garda had not complied with the warrant. The Attorney General had advised the proper course was to take the child back before the district court and apply to have the order varied.

Mr Justice Kelly said such advice raised fundamental questions regarding the powers of the courts and judiciary. It appeared it was being suggested the judicial branch of government should change its orders because of the State's failure to provide the necessary facilities to allow the court order to be put into effect.

Mr Bradley said the context of the advices from the Attorney General, which were exhibited in a memorandum of a senior garda, was the Attorney General's concern not to be in contempt of a district court order. He said there was power under the Children's Act 1908 for the director of Oberstown to refuse a place and there was an obligation on a district judge to establish there was a place available before sending a child to the centre.

The State was contemplating a judicial review challenge to the district judge's order. Mr Bradley asked for time to consider the matter and the judge said he would deal with it on Tuesday.