A Senior High Court Judge has expressed optimism that the staffing issue in the State’s three specialised units for vulnerable children could be addressed. The units were described as ‘state of the art’ facilities and the judge praised the staff for their incredible effort under challenging conditions.
Justice John Jordan urged legal counsels representing various government entities to inform their clients about the critical need to resolve the ongoing staff shortage, which has resulted in the units operating at only fifty percent capacity. This is a consequence of long-standing obstacles, including budgetary restrictions in the public sector, leading to an inability to solve the recruitment problem, as previously stated by the Child and Family Agency (CFA).
During the court proceedings, Sara Phelan SC defended several government agencies, the nation of Ireland, and the Attorney General, unable to furnish the court with information on behind-the-scenes developments regarding a case where a young boy is alleging CFA’s defiance of court orders.
A teenager, who remains anonymous and is represented by his mother, is challenging Tusla for disobeying a court order issued in December 2023, requiring his detention at a special care unit. The troubled youth has experienced serious risks resulting from his involvement in drug trafficking, substance abuse, running away from state-provided shelter, and homelessness. It is also alleged that he has been a victim of physical and sexual abuse, threats, and aggression. He had previously received specialised care, but his condition rapidly deteriorated following his release.
Feichín McDonagh, senior counsel for the CFA, alongside Sarah McKechnie BL, petitioned the court on Thursday to address certain matters raised by his client in advance, in order to save on costs and court time if these points are successful. He suggested that before proceeding to a full trial of the contempt application, the court should ascertain whether the case is lawful. McDonagh proposed that the full-scale proceedings for contempt were improperly initiated and fail to provide a valid claim against his client.
According to McDonagh, there’s no precedent, post or pre-independence, in this nation for a private contempt claim being invoked in a private legal action against any party, especially a state entity. He referred to the case as purely punitive, as opposed to being coercive, as contempt requests ought to be. In his view, the case serves no purpose other than to cause embarrassment and invite public censure towards his client.
Michael Lynn, senior counsel for the teenager, supported by E.P. Keane & Company solicitors, stated that his application, while restrained, was made with reluctance. He affirmed it’s not a witch hunt and he doesn’t seek the arrest and incarceration of a Tusla representative regarding the alleged contempt, as it wouldn’t be productive.
Lynn, joined by Brendan Hennessy BL, claimed he has the right to launch a full-scale legal action of this kind, and the CFA has not shown legal grounds to invalidate his claim. His decision to litigate in this way was made in order to involve Government departments, as the CFA has noted in previous court cases that circumstances beyond its control, including public wage limitations, are preventing it from fully staffing the specialist care units.
The CFA’s original tough stance in dealing with the case has now switched to bringing procedural motions to refrain from appearing in court to face the contempt application as much as possible, according to Lynn. The court adjourned the CFA’s application, which also requested the dismissal of certain notice parties, for final statements.
In a recent judgement, the Supreme Court indicated that should the CFA fail to comply with a special care order, the issue of contempt could naturally arise.
Although the matter was labelled as “entirely theoretical” during the previous court hearings, Justice Gerard Hogan explained, “In a law-abiding democracy, it’s incumbent on all state entities to adhere to such court directives.”
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