A High Court judge has stressed the urgent need for a legal framework governing how the courts deal with exceptional cases where secure long-term detention is deemed necessary for severely troubled and at-risk children to safeguard their welfare, particularly their lives.
The number of such cases had "regrettably" grown to about 20 weekly in the High Court and it was "undesirable" that the High Court continue to exercise in its present form its inherent jurisdiction to detain them, Mr Justice John MacMenamin said.
In a judgment relating to the powers of the courts to detain children in long-term secure care, Mr Justice MacMenamin ruled that the court has inherent power in very exceptional cases to detain children in long-term care to meet their educational and welfare needs, subject to constant review and monitoring.
In the absence of ongoing review, it was difficult to see how any long-term detention order could remain lawful, he said.
His judgment was delivered in the case of S, an extremely troubled 16-year-old boy, who has been in and out of care since the age of six, was sexually abused at a young age and has been in the statutory care of the HSE since 2001. It was argued by the boy's legal guardian and his mother that he required long-term secure care to safeguard his welfare, including his life.
When the boy absconded from care units, he lived in derelict buildings where he was subject to predatory sexual behaviour by older men. He has abused drugs and exhibited various challenging behaviours. S is now in a secure care unit and the judge praised the care being provided for him there.
Mr Justice MacMenamin ruled that in truly exceptional cases, the court can order the detention of a child where their welfare is at risk in order to vindicate the child's constitutional rights.
The court must have due regard to the rights of the child and of their parents and family and the jurisdiction must be exercised with regard to the right to liberty of citizens, including children.
The capacity and age of the child, the nature of the place of detention, the extent, quality and suitability of the educational and welfare facilities all had a direct bearing on the duration of a court detention order, he added.
He stressed the importance of safeguarding, subject to the child's "best interests", the "substantive" rights of parents and families when children are placed in secure care and of keeping parents informed and involved.
It was particularly necessary, where possible, that parents played a full role in ensuring that any period of detention was truly therapeutic in effect.
The judge noted that since court proceedings were brought on behalf of S in late 2006 and arising from concerns expressed in this and other cases, the HSE had embarked on "a wide-ranging review" of procedures on accommodation, detention and care.
It had put in place new procedures to determine and give priority to placements of at-risk people and had reopened a care unit which had closed in 2003.
Mr Justice MacMenamin is to deal with the rights of children in an impending judgment in a related case and will also address the level of secure care provision for troubled children.
He noted, "perhaps for many reasons", a reluctance to implement provisions of the Child Care Act of 2001 which impose a duty on the HSE to seek special care orders in the District Court where there was a real and substantial risk to children.
There appeared to be a reluctance to abandon the "perhaps more flexible approach" derived from the exercise of the High Court's inherent jurisdiction.
The judge said the absence of a statutory framework was further complicated by the fact that a troubled child could find themselves being dealt with by different courts. Where there was a conflict between the general welfare rights of a child, and constitutional rights relevant to the trial of criminal offences, the latter "must have priority".
