‘Matter of time’ before young adults leaving care take legal action against State, advocate warns

It is “only a matter of time” before care leavers take legal action against the State over the effect being in care has had on them, an advocate for young people in care has warned.

Wayne Dignam (47), formerly with the Care Leavers Network, said he would “welcome a class action” as the care system “is just getting worse and worse for vulnerable kids”.

Mr Dignam is one of a number of care-leaver advocates welcoming the intervention by retired Dublin District Court judge Dermot Simms, who warned an “unprecedented crisis” in services for the most at-risk children in care was leading to a “likelihood” of claims against the State.

Former Mr Justice Simms, in a letter to four Government Ministers and a number of public bodies dated May 17th, 2023, when he was still on the bench, said up to 130 highly vulnerable children were in “unsuitable” and “unapproved” placements, such as holiday centres, hotels and B&Bs because there was nowhere else to put them.

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He said “systemic failures” across Tusla, the Garda, the Department of Education, the HSE and the Prison Service were undoing, undermining and frustrating the best efforts of frontline social workers to comply with regulations and protocols.

His letter, published on Monday by the Child Law Project as one of 67 reports on care cases before the courts, expresses “utmost concern for the immediate predicament and welfare of children... in the care of the State”.

He was particularly concerned about the plight of up to 130 children for whom no suitable, approved and secure placements could be found. These children were placed in special emergency arrangements (SEAs). These could include hotels, with a suitably trained adult supervisor and an allocated social worker.

Every time a child is placed in an SEA, Tusla makes a report to the State Claims Agency,

Almost 30 years since he left State care, Mr Dignam said the system was “bad in my time” but he was angered and saddened to see “it has just got worse”.

“We are going to face more kids dying in care, being abused. I don’t want to be alarmist about this but what more do we need to do before something is done, radically, across departments?

“The State is leaving itself open. This is a warning. I know there are a lot of care leavers who are considering the effects being in care had on them and it is only a matter of time before solicitors get involved and see this as an opportunity to hold the State to account,” he said.

[ Up to 130 vulnerable children at risk due to ‘unprecedented crisis’ in State care services, says retired judge ]

Echoing him, the Children’s Residential and Aftercare Voluntary Association (Crava) said almost a decade after the establishment of Tusla, the care system “is crisis-driven and riven with anomalies”.

“Instead of providing safe, nurturing and consistent care to children who are placed in State care, we are placing more and more of these children in emergency, unregulated accommodation [and] have a care system which has become a predominantly private, for profit, industry.” An “independent review of the care system is urgently required”.

Kate Duggan, interim chief executive of Tusla, agreed the agency was facing “unprecedented challenges”.

This included “an increasing referral rate [almost 83,000 to Tusla’s child protection and welfare service alone], an inadequate supply of emergency and alternative care placements [foster care and residential care], an increase in the number of separated children seeking international protection, and workforce supply issues, particularly in social work and social care”.

Minister for Higher Education Simon Harris said the “honesty” of Ms Duggan’s statement, “should stop everyone in their tracks, including those of us in Government”.

“We can’t just ask ourselves, how do we build a bigger system to deal with children in crisis? We have to ask ourselves, how do we reduce the number of children in crisis,” he said.

“It really drives home to me the point that the next budget absolutely has to be a budget about children, about child welfare and about tackling child poverty,” he said.

Speaking on the sidelines of a summit in Brussels, Taoiseach Leo Varadkar said the number of children needing to be taken into care had increased “substantially” due to migration and other factors, and the State was struggling to staff services.

“Sometimes parents are dead, sometimes parents are in prison, increasingly because of migration, parents don’t have a family network around them, and increasing numbers of unaccompanied children are arriving in Ireland from Ukraine and elsewhere.

“We have been struggling to match that with the skilled staff who have the skills and qualifications to look after children who need State care.”

Case study: Response to urgent referral had been that nothing was currently available

A judge in a provincial town directed Tusla to “immediately” identify an approved and regulated placement for three siblings, whose separate placements were ending imminently. The children’s two other siblings, also in separate placements, were doing well.

Interim care orders were not being opposed by the parents, who had a difficult relationship. Home life was “chaotic”.

Child A was in secondary school and was doing very well in his placement. He was enrolled in sports and was engaging well in school.

Child B, also in secondary school, was in an unregulated placement, but doing quite well. B had one of the “most concerning presentations” when he came into care. He said his parents had blamed him for everything that was happening in their relationship, and he felt “everything was his fault”. He had come a long way and had started to settle into a good routine, particularly in school, so it was very unfortunate that his placement was due to end and he would likely have to move school.

Child C had moved placement multiple times. Most recently, he been in a short-term placement, but this had ended. He was moved to another short-term placement where he remained, but this was due to end in two days’ time. Tusla said a plan had been put in place whereby C would move to a further foster placement for a period of 10 days. An urgent referral had been made to the private placement team to ascertain whether a residential placement might be available, but the response was that nothing was currently available.

Child D had moved placement seven times and was currently in a long-term placement, but the child and family agency had recently been informed it would end in 28 days. An application had been made to the central referral committee for a new long-term placement but nothing was available.

Child E was an infant. He was noted to be doing very well in his foster placement and was very happy there. He had regular access with his grandmother and loved seeing her.

The court extended the orders for each of the children for a further 28 days. It directed Tusla to immediately identify an appropriate, long-term and regulated placement to meet all of the needs of the children, and place the children without delay.

“I appreciate there are difficulties for the CFA, but this is in the best interests of the children and that is what I have to consider,” said the judge.

Case study #47 from the Child Law Project reports published on Monday