The state is to appeal to the Supreme Court after a High Court judge yesterday confirmed his threat to hold three Ministers in contempt unless they provide a safe place of detention for a disturbed 17-year-old girl.
The Attorney General, Mr Michael McDowell, was last night studying the controversial order, seen by Ministers as an unprecedented encroachment by the courts into the business of government. Sources say the Government believes the threat to "punish" Ministers had to be challenged.
The appeal, which must be lodged with the Supreme Court within 21 days of the making of the order, is likely to produce a definitive judgment on the issue of the separation of powers between Oireachtas, Executive and Judiciary.
While Ministers can be injuncted and face legal action over alleged breaches of their statutory powers, it must be clarified whether individual members of the Cabinet can be punished in respect of their constitutional obligations, the sources said.
The decision to lodge the appeal followed Mr Justice Peter Kelly's refusal of the State's request to alter his order against the three Ministers and a health board to find a safe place for the girl when she is located following her escape last week from a therapeutic unit and subsequently a hospital.
On Wednesday Mr Justice Kelly warned that the Ministers for Health, Justice and Education would be held in contempt of court unless they found a suitable secure unit. Those found in contempt can be jailed, fined or have their assets - in this case the assets of their Departments - sequestered.
Yesterday the judge refused as "unmeritorious" and "ill-founded" the State's request to alter the order to make it against "Ireland" rather than the Ministers. Such an order could not be enforced, he said, and he hoped that on their next visit to the court the Ministers would be able to say they had found a secure place for the girl who, he said, might well be dead.
The judge has been a strong critic of Government inaction on finding secure detention places for young offenders for several years. Some months ago he demanded that the Department of Health adhere to its own timetable for the provision of secure units.
The Minister of State responsible for children, Ms Mary Hanafin, said that over the past three years this Government had taken substantial steps to rectify the situation, which, she acknowledged, had been unsatisfactory.
Government sources expressed annoyance last night at the impression given, as one said, "that Ministers have to be threatened with jail before they will look after this severely disturbed girl". The Government "is doing everything that can be done; there is nobody seeking to avoid their obligation here", the sources said.
However, the Opposition parties condemned the Government for seeking to have the individual Ministers dropped from the High Court order. Fine Gael's Mr Gay Mitchell said the Government had "lost the run of themselves" and should comply with the court order. Labour's Ms Roisin Shortall said the Government should be about "protecting children at risk, not ministerial egos".
Ms Hanafin said the Government would ensure that "when she (the girl) is found that we have a place for her and we have the staff to look after her".
She said that from the time the case came to the knowledge of the Department last May, the Government had given the health board responsible for her care everything that was needed. The adaptation of the house had cost £250,000 and staffing had cost £700,000.