Orders to detain teens in special care ‘impossible’ for Tusla to comply with, Supreme Court told

Tusla is not permitted to pay amounts that may be needed to attract qualified staff to the State’s three special care units, where highly vulnerable children are detained on foot of court orders, the Supreme Court has been told.

The child and family agency’s senior counsel, Mark Harty, said a staff shortage is preventing his client from providing special care to all of the children who require it. The court heard previously that the three units have physical capacity for 25 children, but just 15 are “operational” due to a lack of staff, and these are all occupied.

Mr Harty said the issue is not that the agency does not have the money to pay staff, it is that it cannot change staff terms and conditions and it is not permitted to pay them the salaries that may be required to make the positions attractive.

His submissions came in Tusla’s appeals seeking to overturn High Court orders directing that two 16-year-olds whose lives were at risk must be detained in special care due to the risk to their lives. The court heard previously the girl and boy both abuse drugs and regularly go missing from State care, while there were grave concerns the girl was being sexually exploited by adult men.

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Mr Harty said it was “impossible” for Tusla to comply with the court’s orders when they were made last October due to the nature of the staff shortage.

Tusla had urged the High Court’s Mr Justice John Jordan not to make the special care orders it was formally applying for as it did not at that point have space in special care and there was a third child who needed the bed more.

Its application was compelled by another High Court judge, Mr Justice Mark Heslin, at the request of the teens’ court-appointed advocates, known as “guardians ad litem”. Tusla is also appealing the orders made by Mr Justice Heslin, who found the teens suffered “grave harm” due to Tusla’s delay in seeking special care orders.

The 16-year-olds have, in fact, now been admitted to one of the units, the Supreme Court heard on Friday.

At the heart of the appeals is a disagreement over whether Mr Justice Jordan, having been satisfied all the statutory criteria were met, had the power to decline to make the orders by considering factors other than those set out in the 1991 Child Care Act.

Mr Harty told the court the judge should have taken into account the “impossibility” of compliance with the orders and should have used his discretion not to grant them.

The court’s making of special care orders the agency does not want leads to children securing places on a “first-come-first-served basis” rather than by hierarchy of need, he said.

His client now believes it must apply to court for a special care order when it has a “reasonable cause to believe” a child needs a place due to their risk. However, Mr Harty submitted, the court should not make an order that cannot be complied with.

Joe Jeffers SC, representing the teens’ guardians ad litem, said the fact the subsection states a judge “may” rather than “shall” make a special care order, once criteria are satisfied, does not denote discretion. Rather, he said, “may” can indicate the conferral of a power on the court.

His clients’ focus is always on the best interests of the two children, whose lives were at risk when their cases came to court. He submitted that the orders made by the two High Court judges should stand.

There is a statutory obligation on Tusla not only to provide special care but also to “maintain and administer” it, he said.

Another High Court judge urged the agency in 2018 to urgently address its staffing issues, he said, so these matters have not been adequately addressed “for at least five years” and seem to be getting worse.

“Critical” to this case is that Tusla told Mr Justice Heslin it would not oppose declaratory orders stating it was in breach of its obligations. Declaratory orders have not been effective to date, as Tusla has a deliberate policy of not complying with its obligations to apply for special care, he said.

Chief Justice Donal O’Donnell pointed out that non-compliance with a court order is contempt. He asked if it would be reasonable for the agency to try to defend itself during the contempt stage by pleading that the orders were impossible to comply with.

Mr Jeffers said this could potentially be a defence at that stage. No guardian ad litem wants to see Tusla face a motion for contempt of court, but it might be that this could achieve their aim for a child.

These orders could be complied with as can be seen from the fact these two children are now in special care, he added.

The appeal is due to conclude on Monday.

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