The Supreme Court will rule on Monday whether the High Court was entitled to order the State to adhere to its own timescales for the building of units for children at risk. The judgment is expected to address important issues regarding the constitutional separation of powers and will have considerable implications for other children's cases before the courts.
In February 2000, Mr Justice Kelly made an order directing the State to take all steps necessary to build and bring into operation a number of special care and high-support units for disturbed children in seven health board areas outside Dublin. The orders were intended to compel the State to adhere to its own timescales for the building of such units.
When granting the injunctions, Mr Justice Kelly described the State's continuing failure to meet the needs of children at risk as "a scandal". The judge also found there was "culpable slippage" by the Department of Health and Children in adhering to its timescales for the development of units.
He had asked the State to give an undertaking that it would adhere to the timescales but was told no such undertaking would be given. In those circumstances, he granted the injunctions which were aimed at ensuring at least 40 additional places for children in units across the State. They were to become available between May 2000 to early 2002.
Last June, the Supreme Court heard the State's appeal against the decision. The State argued the orders infringed the principle of the separation of powers and it also argued the applicant children did not have the necessary legal standing to seek such a general order. The effect of the injunctions was really the courts stepping into the shoes of the Executive.
Mr Paul O'Higgins SC, for the State, said the issue was the extent to which the courts might intervene, by mandatory order, in relation to positive schemes to be embarked on by the Executive in relation to the discharge of its functions. He complained that Mr Justice Kelly had appeared to carry out a "general inquisition" regarding policy in the area of children.
Mr O'Higgins argued it was not just an issue of places. These were "very difficult" children and the failure was of parents, not the State. There were some problems which did not respond to any treatment. The State had gone to considerable lengths to formulate a programme for disturbed children.
However, Mr Gerard Durcan SC, for a number of children, said Mr Justice Kelly was justified in making the order because of the State's six-year delay in vindicating the constitutional rights to appropriate care and accommodation of children such as his clients.
The length of time taken and the slippage in meeting the State's own deadlines meant the Supreme Court should conclude there was a clear violation of the children's constitutional rights, he argued.
Mr Durcan said Mr Justice Kelly had to make orders detaining children in criminal facilities such as St Patrick's because no appropriate places were available.
In July 1998, Mr Justice Kelly made an order compelling the State to take all steps necessary to ensure a high support 24-bed unit for troubled children should be opened at Portrane, Co Dublin, within three years. The judgment was regarded as advancing court protection for children at risk and was not appealed by the State.
