A High Court judge yesterday made an innovative order compelling the State to provide resources and take all steps necessary to ensure a 24-bed high-support unit for troubled children will be built and opened at Portrane, Co Dublin, within three years.
In a sharp attack on the State's failure to provide safe and suitable accommodation for such children, Mr Justice Kelly said: "It is no exaggeration to characterise what has gone on as a scandal."
Some 60 places were required, but more than three years after the High Court found the State had a constitutional obligation to provide suitable accommodation, only 18 places were available, and the full number of required places would not be available until 2001 at the earliest.
In a judgment regarded as advancing court protection for children at risk, the judge strongly criticised ministerial policy on the issue, which "has chopped and changed over the years".
"The addressing of the rights of the young people that I have to deal with appears to be bogged down in a bureaucratic and administrative quagmire," he said.
The time had come for the court "to take the next step required of it under the Constitution so as to ensure that the rights of troubled minors who require placement of the type envisaged are met".
He granted an injunction to Mr Gerry Durcan SC, for a 14-yearold "out of control" boy, compelling the Minister to make resources available and to take all steps necessary to ensure a 24-bed unit was opened at Portrane.
The boy is currently detained in Oberstown House. He is one of many children for whom the High Court has been unable to find suitable detention places.
He had sought the injunction in judicial review proceedings against the Ministers for Justice, Health, Education, Ireland, the Attorney General and the Eastern Health Board.
The High Court had found in March 1995 that the State had a constitutional obligation to provide safe and suitable accommodation for troubled minors, but since then little had been done. He quoted from an affidavit of Mr Pol O Murchu, a solicitor who has appeared for many children at risk. Mr O Murchu said: "There has been and continues to be a chronic shortage of places available in secure HSUs (high-support units), which means that it regularly happens that a place in a secure HSU is simply not available for a young person even though all the professionals dealing with him or her are of the view that it is essential that such a place should be made available."
Mr Justice Kelly said that since he was appointed a High Court judge in April 1996 he had been involved in cases involving such children. By April 1997, concerned at the lack of progress, he directed a hearing during which it emerged that the Minister's proposals outlined to the court in March 1995 had been substantially departed from.
Proposals for two units - a HSU and a detention unit - were advanced by the EHB to the Minister for Health in September 1996. Sites were identified at Ballydowd and Portrane. In August 1997 the EHB got approval for the Ballydowd unit but as a detention unit. The Minister had decided both Ballydowd and Portrane would be detention units.
The judge was told in 1997 that Ballydowd would be completed by the end of 1998, but now it appeared it would not be completed before the end of 2000.
The position regarding Portrane was "even more disturbing". The Department of Health had directed it was to be developed as a detention unit for 24 persons and planning permission was secured. Then the Minister had changed his mind and now favoured a HSU. Mr Justice Kelly said the timescale alone would suggest the response by the Minister for Health had been "neither proportionate, efficient, timeous or effective".
Mr Justice Kelly said he had concluded the response of the Minister fell far short of what the court was reasonably entitled to expect. In granting the injunction, he was not interfering in the policy of the administrative branch of government. His order would merely ensure the Minister, who had already decided on the policy, lived up to his word and carried it into effect.
"It is regrettable that this course has to be adopted," he said. "I am, however, satisfied that the court could not keep faith, either with its own obligations under the Constitution or with the minors with whose welfare it is concerned, unless intervention is made now."
He added that no proposals have been forthcoming as to what was to happen in the short term to children at risk. He reserved the right to intervene by way of injunction to ensure the provision of a short-term solution in any case which required it.
