The judgement regarding an exceptional case in which a state institution, the Child and Family Agency, is being accused of flouting a court mandate for a teenager’s housing in a special care unit, has been postponed by the High Court. Justice John Jordan has indicated that he will not reach a decision before a month as the matters under consideration are of grave importance.
There have been additional accusations of contempt of court against the agency, also recognised as Tusla, involving court-ordered care arrangements for two other minors at these specialized units designed to mitigate the potential harm risk. These cases are meant to be presented before him on Thursday, however, Tusla’s lead counsel, Feichín McDonagh, intends to request a delay due to the recurring issues that intersect with the initial case responsible for the judge’s determination.
The Court has repeatedly been informed of Tusla’s stance that the centres cannot operate at full capacity due to a staffing crisis caused by governmental salary limits. The difficulties encountered by the agency in implementing special care orders, which may be challenging or even impossible, have been recently contemplated by the Supreme Court. In a prime judgement by this court, Justice Gerard Hogan raised the possibility of a contempt case “naturally arising” if the agency fails to implement a care order, although at that point, the issue was “purely theoretical.”
On Wednesday morning, lead counsel Michael Lynn, who represents a teenager suing via his mother, argued that the agency has made an “unprecedented violation” of a court order with severe repercussions for the child. The interim three-month order for the boy’s admission to the care unit, issued by Justice Jordan the previous December, expired just last week; a subsequent one has, however, been issued.
Lynn emphasized that his client’s case solely seeks a declaration of contempt and does not pray for the imprisonment of a Tusla representative, an option usually included in contempt claims. He assured that no individuals are under criticism; rather, the case accuses “systematic failure – an organisational failure”.
In a previous court session, it was revealed that a teenager, grappling with issues stemming from traumatic childhood experiences, is in serious danger due to his cocaine trafficking, drug addiction, evasion from state-supervised care, and homelessness. He has also been the alleged target of threats, physical and sexual abuse, and assault.
Prior to this deterioration in his circumstances, the teenager was in special care but his condition rapidly deteriorated post-release.
Mr Lynn, alongside barrister Brendan Hennessy, instructed by EP Keane & Company solicitors, argued that scant information was presented to the court regarding the agency’s efforts to adhere to the court orders. Mr Lynn further stated that the agency was completely aware of their failure to comply, signifying clear contempt.
The teenager’s court-appointed custodian and father supported Mr Lynn’s application.
However, the agency’s legal representatives, Mr McDonagh and Sarah McKechnie, pleaded for the denial of the appeal. Mr McDonagh asserted that the case was improperly presented, contravening the relevant laws, rules, and fair procedures. According to Mr McDonagh, this case is not about procuring a bed for the teenager but about the trial for alleged contempt of court.
Mr McDonagh emphasised the necessity of strictly following legal procedure when alleging contempt. Any insinuation that due process need not be adhered to in a contempt declaration was quickly dismissed. He further stressed that the application of fair procedures to all potential contempt issues is requisite.
Last week, Mr Justice Jordan threw out an application by the agency to address certain issues before the full trial. His judgement on the significant application put forth on expedited grounds was deferred until Wednesday afternoon.