High Court of Ireland Decisions

1. The Applicant was born on the 14th December, 1983. He is one of an increasing number of young people coming before this Court who, for their own welfare, require to be cared for by the Eastern Health Board in a secure environment from which they cannot readily escape.

2. The Applicant has already succeeded in having the Court exercise its original constitutional jurisdiction by giving directions as to his custody, care and control by the Eastern Health Board.

3. Whilst this application is brought in these proceedings, it concerns issues which are of importance to all applicants who find themselves in the same position as D.B.

4. The Applicant now invites the Court to become involved in the enforcement of his and such persons' constitutional rights in a much more direct way than has been the case heretofore. He seeks an Order directing the Minister for Health to provide sufficient funding to allow the Eastern Health Board to build, open and maintain a 24 bed high support unit at Portrane in the County of Dublin. He also seeks an Order compelling the Minister for Health to do all things necessary to facilitate the building, opening and maintenance of that unit at Portrane.

5. In order to understand how this application comes about, it is necessary to sketch out the background against which it is made.

6. On the 24th March, 1995 Geoghegan J. delivered judgment in the case of F.N. v. Minister for Health (1995) 2 ILRM 297. He summarised his decision as follows:-

7. Since at least that time the State authorities have been fully apprised as to the duties owed by the State to minors exhibiting problems of the type which existed in that case and which exist in the present one.

8. It would be otiose to rehearse yet again the impossible situation in which the Superior Courts have been placed when asked to make Orders in favour of applicants who require secure containment only to find that no such facilities are available. Mr. Ó Murchú, the Applicant's Solicitor, neatly summarises the position in his Affidavit where he says:-

9. It is because of this state of affairs that the Applicant contends that he is now entitled to Orders of the type sought. He says that whilst the High Court has made declarations concerning the obligations of the State towards young people with these special needs, the Minister for Health has failed to take timeous and effective steps to meet those needs. Consequently, I am urged to intervene in the manner sought so as to ensure that this position is addressed.

10. Seven days after he delivered judgment in March 1995, Geoghegan J. was apprised of developments proposed by the Minister for Health concerning the provision of residential places for both young offenders and children in need of special care. This information was obviously considered by the Court as demonstrating a clear intention on the part of the Minister to address in a realistic and timely way the entitlements of F.N. and others like him. As far as the Court was concerned, there was no reason to believe other than that those proposals would be implemented.

11. Since shortly after my appointment to the Bench in April 1996, I have been involved in dealing with cases of this type. By April 1997 I was concerned at the apparent lack of progress that was being made and I directed a hearing to take place so that I might be acquainted with developments. During the course of that hearing it emerged for the first time that the proposals outlined to the Court in March 1995 had been substantially departed from without that fact ever being made known to the Court. At the conclusion of that hearing in the course of my ex-tempore ruling I said:-

12. At that hearing evidence also emerged of unseemly and wasteful wrangles going on for months between various departments as to who would have responsibility for the care of the children in question.

13. I have been told in an Affidavit of an Assistant Principal Officer in the Department of Education and Science based in Athlone, Co. Westmeath and sworn on the 20th March, 1998 of the following. He says:-

14. As of the swearing of that Affidavit in March 1998 (three years after the Order of Geoghegan J.), it appears that little concrete progress had been made on the legislative side so far as cases of this sort were concerned.

15. Some activity was however taking place on the administrative side. In the course of the hearing which I held in April 1997, I was informed of the establishment of a project team whose task was to prepare a model brief for a purpose built special care unit for out-of-control children. Officers of the Department of Health were members of that project team. The team completed its work in September 1996 and submitted its brief for approval to the Department of Health. Approval was apparently given by the Department of Health in November 1996. I was told on Affidavit sworn by a Principal Officer in the Department of Health, in April 1997 that completion of the planning and construction of a 24 bed special care unit was being seen as a priority. It was anticipated that the design phase of the project would be completed by the end of 1997 and that construction would be completed by the end of 1998. As things have turned out this estimate was most inaccurate.

16. I directed a further hearing which took place before me in April of this year. This again was with a view to ascertaining what progress was being made. I heard evidence from, inter alia, Ms Brid Clarke, who is the Programme Manager with the Eastern Health Board responsible for services to children and the family. She also gave evidence to me on the last day of the present hearing, namely Tuesday, the 21st July, 1998. Her evidence, which I accept, satisfies me as to the following.

17. In September 1996 proposals were sent to the Department of Health by the project team for the provision of two units. One was to be a detention unit and the other was to be what is called a high support unit. A high support unit does not have detention facilities anything like those provided in a detention unit proper. Two sites were identified. One was at Ballydowd, Lucan, Co. Dublin and the other at Portrane, Co. Dublin. The application which was made to the Department of Health was for the detention unit to be developed at Portrane. That was the first unit for which approval was sought. The unit at Ballydowd was envisaged as a high support unit and was to follow.

18. In August 1997 (almost a year later) the Eastern Health Board was informed by the Department of Health that it was to proceed to build at Ballydowd first. It was furthermore told that it was to be developed as a detention centre. This was not part of the plan of the Eastern Health Board nor of the project team which had made recommendations to the Department and which included amongst its number two Department of Health officials. Not merely that but the Minister for Health also decided that rather than having one detention and one high support unit, there were to be two detention units. The second of these was to be developed in Portrane.

19. Acting on foot of these directions, both projects got under way. Planning permission was secured for the Ballydowd unit. However, the time estimate which I was given on oath in April 1997 for its completion by the end of this year has no prospect of being achieved. The latest estimate which I am now given by an Assistant Secretary in the Department of Health is that construction is not now expected to commence until December of this year and the unit will not be completed until the year 2000.

20. The position in relation to Portrane is even more disturbing.

21. The Department of Health directed that it be developed as a detention unit. Like its counterpart in Ballydowd it was to accommodate 24 persons. The Health Board made application to the planning authority and secured a planning permission for this development. A number of objectors appealed to An Bord Pleanala. An Bord Pleanala rejected those appeals. There is therefore in existence a full planning permission for this unit.

22. When this matter was at hearing before me in April of this year, Ms. Clarke told me that she detected a change in ministerial attitude concerning the funding of the Portrane Unit. She expanded somewhat on this evidence in July of this year when she told me that in late November or December of 1997 she became aware of the fact that the Minister was revising his view of the Portrane project. He was concerned as to its cost. At that stage the application for planning permission was pending before the local authority. Her suspicions have proved to be correct. For now the Minister has changed his mind. Having gone through the entire planning process and obtained permission for a detention unit at Portrane, he announced on the 15th July of this year, on the vigil of this hearing, that Portrane was now to be developed not as a detention centre but as a high support unit. It was on that date that the Health Board was informed of this ministerial decision for the first time.

23. The effect of this decision is that the whole planning process is now likely to have to start again in respect of Portrane. It also means that the original proposals put to the Department of Health in September 1996, which were not then apparently accepted, have now been so almost two years later. The result of all this is to further delay the provision of these badly needed facilities for at least another three years.

24. The reason given for this latest change is the findings of an expert report commissioned by the Minister some time earlier this year. The fact of this study was made known to me at the hearing in April 1998. The expert's terms of reference were as follows:-

25. I expressed surprise at the necessity to commission an expert from another country to furnish to the Minister for Health a report on these matters. As far as the numbers of places required are concerned, I have, over a long period of time, been furnished with evidence that 60 places will be required. That evidence has come in hearing after hearing from Eastern Health Board witnesses. The report when produced did not in fact provide estimates of the number of places required.

26. I accept the uncontroverted evidence of Ms. Clarke which was given from at least as far back as April 1998 that 60 places are required to accommodate children with needs such as the Applicant. These places will be a mix between detention places and high support units. The present position is that there are only 18 such places.

27. The Applicant contends that the evidence which I have just summarised demonstrates a wholly unsatisfactory situation from the point of view of minors with difficulties of the type in suit. It will now be at least the end of 2001 before their entitlements will be accommodated.

28. The Court is now called upon to enforce their constitutional rights. It is asked to do so, it is said, in the context of an accepted breach of those rights and an ongoing and continuing breach of the rights of the particular minors before the Court. I am asked to consider the nature of the right which has been breached. It is one which is limited by time because it can be enjoyed by a citizen only whilst a minor. The Applicants say that the breach of their rights has gone on now for the last three years and four months. The effect of the breach is one which, as a matter of high probability, will affect them into their future life and indeed may have fatal consequences for some of them, given their suicidal ideation. It is said that apart from the 18 places provided in Newtown House and Killinarden, no further practical results have been achieved since the decision of Geoghegan J. The Applicant asks how much weight can be attached to the latest ministerial decision given only the day before this hearing began concerning the Portrane facility. No indication as to time is given in the Affidavit sworn on behalf of the Minister. The best estimate of time is given by Ms. Clarke, who of course is not an agent of the Minister. Earlier estimates of time given on behalf of the Minister have proved to be wholly inaccurate. There have been frequent changes of policy, many of them not notified to this Court and it is asked what guarantee is there that there will not be another change of policy? Finally, it is said that damages could never be a real remedy for breaches of the type with which I am concerned. I am, therefore, invited to grant injunctive relief to ensure the vindication of the rights of the Applicant.

29. Mr. Ó Caoimh, on behalf of the Minister, accepts that one can be critical of what has occurred in part at least. But he says this is not a case where there has been any deliberate attempt on the part of the Minister to frustrate or set at naught the rights of the Applicant. He accepts that there are elements of the situation which cannot be excused and that it falls far short of ideal. However, he says that an unprecedented Order of this type should not be made. He calls attention to the evidence contained in the Affidavit of the Assistant Secretary of the Department of Health showing, inter alia, the additional funding made available by the Minister for Health to Health Boards by reason of the implementation of the Child Care Act. An additional £43 million was provided by the Minister to Health Boards on an annualised basis between 1993 and the end of 1997. A further £8 million has been provided in 1998 together with an additional £5 million by way of capital expenditure. He calls attention to the preparation of the expert report in the last few months and the fact that within days of it the Minister announced his decision concerning the Portrane site on the 15th July of this year. He contends that in these circumstances an Order of this sort ought not to be made. Insofar as it would involve the Court becoming involved in matters of policy, he said it is impermissible for such an Order to be made.

30. Article 40.3.1 of the Constitution provides that:-

31. This Court is charged with the vindication and defence of the rights guaranteed by the Constitution. As was said by Hamilton C.J. in D.G. v. Eastern Health Board (1998) 1 ILRM 241:-

32. These quotations seem to me to establish the proposition that in carrying out its constitutional function of defending and vindicating personal rights, the Court must have available to it any power necessary to do so in an effective way. If that were not the case, this Court could not carry out the obligation imposed upon it to vindicate and defend such rights. This power exists regardless of the status of a respondent. The fact that in the present case the principal Respondent is the Minister for Health is no reason for believing that he is in some way immune from Orders of this Court in excess of mere declarations if such Orders are required to vindicate the personal rights of a citizen.

33. Insofar as it may have been suggested that the Court does not have jurisdiction to interfere with the administrative branch of Government in the way in which is sought by the Applicant, I reject such a submission. The matter appears to me to have been put beyond doubt by the views expressed by Finlay C.J. in Crotty v. An Taoiseach (1987) IR 713 where he said:-

34. Whilst I am satisfied that the Court does have jurisdiction to make Orders of the type sought against the administrative branch of Government, they are not made lightly. This is because our system of Government is based on a separation of powers between legislature, executive and judiciary. It is to be expected that each of these branches of Government should demonstrate a respect for each other and their respective functions. Indeed, this is what normally happens. A good example of this in recent times is to be found in the approach taken by the Supreme Court in the case of McMenamin v. Ireland and Ors (unreported 19th December, 1996) where, having identified an injustice, the Supreme Court did not deem it necessary to make any further Order in the expectation that the other branches of Government would respond timeously to rectify that injustice. That is indeed what happened.

35. In that case Hamilton C.J. said:-

36. The present case is rather different. The obligations of the State towards minors of the type with which I am dealing in this judgment were declared well over three years ago. They were to be honoured "as soon as reasonably practicable" (per Geoghegan J). On the present state of affairs they will not be addressed in an appropriate way until the end of the year 2001 at the earliest. Indeed, it cannot be said with any degree of certainty that even that lamentably late date will be met. In these circumstances, should the Court exercise this power?

37. Before proceeding to answer this question, there is one further objection with which I must deal. It is said that this Court does not have any entitlement to become involved in what was called matters of policy. I am by no means persuaded that this is so. If such an intervention were required in order for this Court to carry out its duties under the Constitution in securing, vindicating and enforcing constitutional rights, then, in my view, it would be open to it to so do. One would hope that such a situation would not arise. However, I need not decide this question nor do I purport to do so since any Order I make will not involve the Court being involved in questions of policy.

38. It appears to me that in deciding whether or not to grant the relief sought on this motion, the following factors must be taken into account.

39. First, the High Court has already granted declaratory relief concerning the obligations of the State towards minors of the type with which I am dealing. In so doing it observed the constitutional proprieties owed by the Court to the administrative branch of Government. It went no further than making a declaration thereby affording an opportunity to the Minister to take the necessary steps to put matters right. But it expected those steps to be taken as soon as reasonably practicable.

40. Secondly, if the declaration was to be of any benefit to the minors in whose favour it was made, the necessary steps consequent upon it had to be taken expeditiously. Otherwise the minors, most of whom are of the age of 12 to 14 years, would have achieved majority within a few years of the declarations being granted without any benefit being gained from them.

41. Thirdly, the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of these minors and certainly put them at risk of harm up to and including the loss of their very lives.

42. Finally, due regard should be had to the efforts made on the part of the Minister to address the difficulties to date. If the Court were to take the view that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the Minister's response was proportionate to the rights which fell to be protected, then normally no Order to the type sought ought to be made.

43. As I have already stated, there is a need for 60 places of either containment or high support to deal with minors of the type involved in this litigation. At present 18 such places exist. The full complement of places will not now be achieved until at best the end of the year 2001.

44. That time-scale alone would certainly suggest that the response on the part of the Minister has been neither proportionate, efficient, timeous or effective. A period of more than six years will have passed since the judgment of Geoghegan J. before accommodation is provided for all of the minors who require it. Young people who are entitled to the benefit of the declaration made by him will have long since become adults without having had the State discharge the obligations which it owes to them.

45. That situation is bad enough but when one examines what has been happening over the last few years, one cannot but be left with a sense of dismay. It is no exaggeration to characterise what has gone on as a scandal. I have had evidence of inter-departmental wrangles over demarcation lines going on for months, seemingly endless delays in drafting and redrafting legislation, policy that appears to be made only to be reversed and a waste of public resources on, for example, going through an entire planning process for the Portrane development only for the Minister to change his mind, thereby necessitating the whole process being gone through again.

46. 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. I have come to the conclusion that the response of the Minister to date falls far short of what this Court was reasonably entitled to expect concerning the provision of appropriate facilities for young people with difficulties of the type with which I am dealing.

47. It is now said on behalf of the Minister that whatever may have occurred in the past, the Court should not now intervene by means of injunctive relief because the Minister's policy is as indicated concerning the provision of the two units in question. The unit at Ballydowd will be completed in the year 2000. The Minister has given his decision on the 15th July, 1998 concerning the re-initiation of the process of planning and building the high support facility at Portrane. This last piece of information was sworn to in the Affidavit of the Assistant Secretary of the Department.

48. In looking at what is stated on Affidavit and what is said to the Court by Counsel representing the Minister, I cannot lose sight of the history of this litigation to date. I cannot but take into account the way in which the policy of the Minister has chopped and changed over the years. I cannot exclude from my consideration the extraordinary decisions taken concerning the Portrane site. Neither can I dismiss from my mind the way in which these policies have been altered without the Court even being informed of them. Because of these concerns, I invited the Minister to furnish an undertaking to the Court that the Ballydowd and Portrane facilities would be completed and put into operation within the time specified by his officials. No such undertaking was forthcoming. Such being so, what guarantee do I have that there will not be yet another change of policy? How can I be assured that the time-scales indicated will be met? How can the Court be satisfied that the necessary funding and facilities will be put into place?

49. I have come to the conclusion that in the absence of such an undertaking on the part of the Minister, the time has now come for this 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.

50. In proceeding to grant the injunction, which I will do in a moment, I am not interfering in the policy of the administrative branch of Government. As I have already said, it was suggested on the part of the Minister that it would be impermissible for the Court so to do. I am not persuaded by that argument. If, in an extreme case, such were required in order for this Court to vindicate personal rights, then, in my view, it would be open to it to do so. However, I do not have to decide that question at all. I am not dictating or even entering into questions of policy. The Order that I propose making will merely ensure that the Minister who has already decided on the policy lives up to his word and carries it into effect. It has been accepted in evidence from the Eastern Health Board that the provision of such facilities would address in a complete way the needs of the minors in suit.

51. It has also been suggested that little would be achieved by the grant of such an injunction. I do not agree. The granting of this injunction means that the Minister is no longer at large concerning the approach to be adopted to solving this problem. The developments proposed will now have to be completed and within the time-scale specified. If there is to be any future change of policy or if the times indicated cannot be met, application will have to be made to this Court on the part of the Minister for a variation of the injunction. This will mean that not merely will the Court have to be informed of all of these developments (something sadly lacking to date) but objectively justifiable reasons will have to be furnished to it as to why the injunction should be varied. A variation will not be granted lightly. This will afford to the Court an opportunity of much greater involvement than it has been possible to have in the past. It will mean for these minors that the Court, having declared their entitlements, will now see to their implementation in a direct way.

52. It is regrettable that this course has to be adopted. 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.

53. Accordingly, the injunction sought will be granted and I will discuss the form of the Order with Counsel presently.

54. Before I do so I have to point out that no proposals have been forthcoming as to what is to happen in the short term. If applications continue to be made to Court at current rates, I will continue to be confronted with impossible situations as a matter of regularity for the next four years. That situation should have been at an end by now. I therefore reserve the right to intervene by way of injunction if necessary to ensure the provision of a short term solution in any case that requires it.