An argument erupted at the High Court yesterday between the State and Southern Health Board over responsibility for an 11-year-old boy, in care since he was nine, who has been in a remand centre for almost six months because no appropriate place has been made available for him.
The court was told that the boy, from an "extremely dysfunctional" family, was very vulnerable and at risk of being bullied.
Mr Justice Peter Kelly said such cases were appearing before the courts with "numbing repetitiveness". It was years since it became plain the child was in need of attention. That fact came to the authorities' attention in February 1996, when the boy was nine. At 11 years old he was in a remand centre in circumstances that were "wholly damaging to his wellbeing" but less damaging than if he was turned loose.
A District Court judge had regularly returned the seriously at risk child to a remand centre to ensure that he could be contained, Mr Justice Kelly said. In the context of operating in a system that has "effectively broken down", that judge did the best he could.
Many public service officials and health board staff were also doing their best in very difficult circumstances and he wished to pay them a public tribute.
Mr Justice Kelly said there was evidence that the remand centre was not suitable for the boy and that he ran a daily risk of being bullied there despite the staff doing their best to avoid that.
The boy's case was before the High Court in the context of judicial review proceedings taken on his behalf, which allege the State has failed to meet its constitutional responsibility to meet the child's special needs.
At the outset of the proceedings yesterday Mr Peter Charleton SC, for the State, applied for an adjournment to investigate whether a reform school closer to the boy's home would accept him into its care.
In submissions, Mr Charleton also argued that the Southern Health Board had a duty to investigate the special needs of children in their area, to devise a plan to meet those and to put that plan before the State.
He accepted that the ultimate responsibility for such children lay with the State but said the health board was also obliged to put forward the needs of such children. There was no allegation that the Minister for Health was anything other than willing to look at such plans and to consider the possibility of funding them.
Mr Aongus O Brolchain SC, for the SHB, said this was a "quite extraordinary" submission from the State. They were dealing with judicial review proceedings and he was not under notice that the State would be contending that the obligation was on the SHB.
He required an opportunity to ascertain the basis of that claim and to adduce evidence to counter it. He understood the liability for facilities for children at risk lay with the State, which was aware of the child's situation and that he required a place in a high support unit.
Mr Gerry Durcan SC, for the child, said the matter was somebody's responsibility. The SHB might be the State's designated organ but the ultimate residual constitutional obligation fell on the State.
Mr Justice Kelly said it was common case that the child needed a place in a high support unit, not a reform school. But no such place was available and the reform school was the second best solution.
It was "an eleventh hour, sticking plaster solution" and even it could not be guaranteed, he said. Unfortunately, such solutions were common in cases of this sort. He had little option but to allow further talks to see whether the reform school would take the child.
The judge said the court must also be told what was going on in the Southern Health Board's area in relation to the boy before the court and others like him.
He adjourned the matter to December 11th. On that date he wanted to be told the results of a case conference on the child regarding a place at the reform school. He also wanted information on the provision of appropriate facilities for such children in the health board area.
