Supreme Court to consider use of contempt jurisdiction in cases about care owed to vulnerable children

The Supreme Court will consider whether it is appropriate for the contempt jurisdiction to be invoked in cases about the necessary State care owed to highly vulnerable children.

A panel of the top judges determined that issues of “general public importance” arise in an “urgent” appeal against the High Court’s refusal to declare that Tusla is in contempt of a court order by failing to detain a very troubled 14-year-old boy in a special care unit.

The High Court has heard that the boy is at “grave risk” and was recently missing from his community placement for more than 10 days.

The court last week reviewed the situations of five minors for whom special care detention orders have been made but not actioned due to a lack of places in the units, which are specialist settings designed to de-escalate a 12-17-year-old’s behaviour and risk of harm.

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Tusla, the child and family agency, says it cannot provide special care beds to all children who need them because of its inability to recruit enough staff.

Alcohol and drug abuse, exploitation, criminality and trauma are issues that frequently arise in the lives of children on the High Court’s special care list. It heard one underage girl who recently needed a place was being sexually exploited by adult men.

The High Court’s Mr Justice John Jordan found the contempt application, brought by the 14-year-old boy suing through his mother, did not follow the correct procedure. The judge referred to a court rule providing that an applicant seeking to invoke the contempt jurisdiction should bring a motion for “attachment” of the person allegedly in contempt.

In seeking to appeal this, the mother contended that she did not seek to attach and have committed to prison any Tusla staff member because the continued breach of special care orders is an “institutional failure”. Her lawyers said targeting a particular individual did not seem appropriate.

She wants the Supreme Court to clarify the remedies available to parties who want to make sure Tusla complies with High Court orders. She asked whether the only remedy was to imprison some representative of the institution. Her application was supported by the boy’s father and his court-appointed advocate. Tusla submitted that the High Court made no legal errors in its decision.

Three Supreme Court judges decided the appeal was “urgent” and important enough to warrant bypassing the intermediary Court of Appeal.

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