The ability of the courts to order the detention for their own good of children at risk was called into question by a judgment of the Supreme Court yesterday.
By a majority of four to one, the court overturned an order of Mr Justice Kelly in February 2000 directing the State to build and bring into operation a number of high support and secure units for children at risk, in line with its own time-table.
The State appealed against the order arising from eight specific cases involving six boys and two girls. All have a history of disturbed backgrounds, behavioural problems and intermittent institutional care.
Despite the judgment, the Minister for Children, Ms Mary Hanafin, yesterday reaffirmed the Government's commitment to provide secure and high-support units. "Very substantial progress has been made by the health boards in increasing the number of special care and high-support places. In mid-1997, there were 17 such places and now there are a total of 93," she said. Another 41 are due to become available in 2002.
The majority of the court stressed the principle of the separation of powers in their judgments. The Chief Justice, Mr Justice Keane, said Mr Justice Kelly had "crossed the Rubicon" in ordering the State to carry out a specific programme of work. SMr Justice Hardiman recalled the Sinnott judgment: "If the courts expand their powers beyond their constitutional remit, this expansion will necessarily be at the expense of the other organs of government.
"If citizens are taught to look to the courts for remedies for matters within the legislative or executive remit, they will progressively seek further remedies there, and progressively cease to look to the political arm of government."
However, in her dissenting judgment Ms Justice Denham said that "in rare and exceptional cases, to protect constitutional rights, a court may have a jurisdiction and even a duty to make a mandatory order against another branch of government."
Opposition spokespeople warned that the Government must not use yesterday's decision to delay further urgently needed action for children at risk.
Labour Party spokeswoman on education and children, Ms Roisin Shortall, said there were complex legal issues involved in the judgment dealing with the separate roles of the executive and the judiciary which require careful study.
"However, we must not lose sight of the fact that the reason these issues were before the courts at all was because of the utter failure of this Government to meet its responsibilities to provide suitable units for disturbed children," she said.
Fine Gael spokeswoman on equality and family affairs, Ms Frances Fitzgerald, said the decision exposed the Government's failure to deal with the crisis in residential care. "It is regrettable that hundreds of thousands of pounds of taxpayers money was spent on litigation relating to vulnerable children and teenagers instead of the Government implementing a coherent policy to provide services, including residential facilities," she said.
Meanwhile, Mr Justice Kelly has expressed doubts whether, in the light of the judgment, he can continue to make detention orders in relation to children at risk.