The High Court is being asked to find that Tusla is in contempt of a court order over its alleged failure to comply with a special care order made for a young teenager who is at “grave risk”.
Lawyers moving the first stage of his application on Thursday afternoon said they cannot find any previous instance where an agency of the State in this jurisdiction has been brought to court for contempt.
Michael Lynn SC, representing the boy suing through his mother, said an order made more than a month ago for the child’s detention in a special care unit is “simply being flouted” by Tusla (the Child and Family Agency).
His client does not want to be making the application and is not seeking the attachment and committal to prison of a Tusla representative over the alleged contempt.
A contempt finding by itself would be “of grave seriousness” and should have a “very substantial effect” on the agency, said Mr Lynn, appearing with Brendan Hennessy BL.
Tusla has pointed to its special care staffing crisis in response to numerous High Court applications for children to be detained at the units, which are specialist settings designed to deescalate a child’s behaviour and risk of harm.
It has said it is not allowed to offer salaries high enough to attract and retain enough specialist staff to operate its three units at full capacity.
Serious risk
The court heard this boy, who has conditions arising out of childhood trauma, has been at “very serious risk” since October due to his cocaine dealing, drug addiction, absconding from State residential care and rough sleeping.
It is also alleged he has been seriously assaulted, threatened and is being exposed to sexual and physical abuse.
He has been in special care previously but his situation declined rapidly upon his release. He cannot be identified.
The agency’s barrister, Sarah McKechnie, told the court she would not justify the situation, which is “unacceptable”, particularly for the child in the case.
However, she did not accept that her client was “flouting” a High Court order, as suggested by the applicant.
Such a description implies a “blatant disregard”, but assurances from the “highest level of the agency” are that it takes these proceedings “extremely seriously”.
Contempt motions are designed to coerce a subject into complying with a court order, but Tusla cannot do anything more than it is already doing to try to open more beds, she said.
It is a “completely intolerable position” for her client, she said, adding that it is very hard to stand here when a child is at extreme risk in the community.
Mr Justice John Jordan, who made the special care order on Tusla’s application last December, said the staffing shortage issue is “at least a decade old”.
Childcare legislation is designed to protect vulnerable individuals like this boy, who is now “enmeshed in the criminal and drugs underworld”. Everybody involved recognises he is at “very grave risk”, the judge added.
The special care units are “state of the art”, but it “must be something of an indictment on the system that there are beds waiting to be filled for children who need them” and the issue preventing their opening is “not a new problem”, he said.
Special care orders
Mr Justice Jordan said he is reluctant to hear the contempt application before the Supreme Court gives a separate decision that is likely to be instructive here.
Last month, the top court heard appeals by Tusla that seek to overturn Mr Justice Jordan’s special care orders for two 16-year-olds whose lives were at risk.
The agency had been compelled by another judge’s earlier ruling (which is also under appeal) to apply for the orders which, Tusla argued, should not have been granted as they were “impossible” to comply with.
Mr Lynn told the court on Thursday that the appeals do not strictly deal with the phase that follows the making of special care orders, although the Supreme Court judges did question what might happen down the line. He agreed the judgment “may say something about where this is all leading to”.
He asked the judge to make orders to join several parties as notice parties to the case against the Child and Family Agency.
Mr Justice Jordan made the orders joining to the action the boy’s father, his court-appointed representative, the Minister for Public Expenditure and Reform, the Minister for Health, the Minister for Children, the Attorney General and Ireland.
He adjourned the case for mention next week.
As well as a declaration that Tusla is in contempt of court, the case seeks an order “imposing appropriate measures” against the agency as a consequence of its alleged continuing breach.
The judge should also declare that the agency is breaching its duty to the child under Child Care Act of 1991 and its constitutional duty to protect and vindicate his life, safety and welfare, the applicant says.
Further, the court is asked to grant general, aggravated, exemplary and punitive damages for an alleged breach of statutory duty and of the boy’s rights under the Constitution and the European Convention on Human Rights Act of 2003.
