1. The
problems of young people and children who, for their own welfare, require
special accommodation and therapy are so well known that it is hardly necessary
to rehearse them again.
2. It
is now more than 3½ years since Geoghegan J. delivered his judgment in the
case of
F.N.
v. Minister for Health
(1995) 2 I.L.R.M. 297. He summarised his decision in the following way:-
3. That
was the first of many cases in which recourse was had to this Court on the part
of needy children. The reason for such recourse was the failure on the part of
the other organs of Government to provide any or any adequate facilities to
deal with such children.
4. It
is clear from the evidence that I have heard on this application that over a
long number of years such children were provided for by homes run by religious
orders and congregations. With the decline of vocations to the religious life,
these orders and congregations have had to withdraw from the provision of such
facilities.
5. The
burden of providing such places has therefore shifted to the State. The State
was manifestly ill-prepared for the assumption of such obligations.
6. The
vacuum created by this state of affairs was not filled by legislature or
executive and so applications began to be made to this Court as a place of last
resort with a view to asserting and enforcing the rights of such young people
which were not being catered for as they ought to have been by the other organs
of the State.
8. Geoghegan
J., he expressed the view that the State was under a constitutional obligation
to provide suitable arrangements of containment with treatment for the
applicant and others like him.
9. What
has happened since then has been set out in my own judgment in
D.B.
(A Minor Suing by his Mother and Next Friend S.B.) v. The Minister for Justice
and Others
(unreported judgment delivered 29th July, 1998). I will not repeat what I said
there. It is sufficient to record that such was the lack of progress in
honouring the declarations made by Geoghegan J. that I felt it necessary to
grant a mandatory injunction against the Minister for Health and Children
compelling him to proceed to establish a high support facility at Portrane by a
specified date. On that occasion I said:-
10. I
am satisfied that insofar as the long term needs of the Eastern Health Board in
this sphere are concerned, they will be addressed by the provision of the
facilities contemplated at Ballydowd and Portrane. But the problem of what is
to happen in the meantime remains.
11. It
was with a view to appraising the position in this regard that I directed
information and evidence to be put before the Court from the Eastern Health
Board and the Department of Health and Children. I did so because the
predictions which I made in July came to pass with great rapidity.
12. Again,
I need not detail the cases which I have had to deal with throughout the Long
Vacation and for the first two months of this term. It is enough to record
that I have had a number of serious and tragic cases where children have had to
be sent to Oberstown Remand Centre in circumstances where that facility is not
merely inappropriate for them but is positively damaging to them. In each case
the only environment more damaging to them than that one would occur if they
were at large on the streets.
13. It
is quite clear that their rights have not been addressed appropriately even
though declared by this Court over 3½ years ago. The administrative
torpor and absence of planning described in my judgment of 29th July, 1998 is
largely responsible for this. That is not to deny or underestimate the
problems involved in providing these facilities. There could not have been any
instant solutions but this Court did not require that impossibility to be
achieved. Geoghegan J. required that the facilities in question be provided
"as
soon as reasonably practicable"
.
Certainly, much more progress ought to have been made than was the case.
14. Before
considering the position as it now emerges in evidence, I wish to one again
make it clear that I have the greatest regard for the personnel of the Eastern
Health Board and the various institutions which have been called upon to house
and maintain these young people. Nobody could envy them their task.
15. I
also appreciate how difficult it is to recruit suitable trained staff to man
facilities of the type required. I note with approval that work on this aspect
of the problem is already under way with a view to staffing the proposed
facility at Ballydowd, which will not of course open for some considerable time
yet.
16. Nonetheless,
the interim position remains unsatisfactory. Even now there is no information
before either the Department of Health and Children or this Court as to the
numbers of young people in the State who require facilities of this type
pending the coming on stream of Ballydowd and Portrane.
17. The
Eastern Health Board does have such figures in respect of its catchment area
but has no plans to cater for all such persons even on a short term basis. The
simple mathematics of the figures put before me show that fifteen to twenty
people require to be catered for and there will be eleven places, at a maximum,
provided in the short term. Four to five of these have been promised through
the good offices of the Southern Health Board and the Mid-Western Health Board.
It is, I think, no coincidence that these
"possible"
places were offered during the hearing of the evidence in the present
application. Little or no information has been placed before me as yet on this
aspect of the matter.
18. The
evidence of Mr. Collins from the Department of Health and Children leaves me
under the impression that at last the urgency of this situation is now
appreciated and that steps are under way to address it. Certainly, the
present position of the Department, from the point of view of the provision of
finances, is a vast improvement on what was the case before. The senior
managers group identified by Mr. Collins appears to be suited to apprise the
Department of what is needed and how it should be provided. The pity is that
it took three months from my judgment in July of this year to even set up this
group. One wonders if it would have been set up at all or, if so, how long it
would have taken had I not given directions in early October concerning the
placing of information before the Court.
19. I
am, therefore, satisfied that progress is at last being made albeit late in the
day and slow in momentum.
20. As
for the Eastern Health Board, I accept that although there are as yet no plans
to deal with all of the young people in need of help in the short term, that is
not indicative of a lack of endeavour. Ms. Clarke's evidence was eloquent
testimony to the efforts being made to surmount very difficult problems. I do
not underestimate these problems. The demands being made upon the Health Board
are enormous. The children, the subject of these proceedings, form only a
small part of the population which has to be dealt with by that Health Board.
The responsibility for investigating allegations of child sexual abuse falls
upon the same personnel that have to deal with the minors that this Court has
to deal with. The large increase in the number of such complaints over a short
period of time has compounded the difficulties for the Eastern Health Board
staff.
21. Although
I regard what has been given in evidence before me as progress, I am not
content, having regard to the history of tardiness, to simply let the Health
Boards and the Department work matters out as between themselves in their own
time. The Court will have to monitor very closely the progress being made and,
if necessary, intervene by Order or injunction. I hope that that will not be
necessary. Indeed, my ultimate hope is that applications of this sort will
cease and become a thing of the past when proper facilities are provided.
22. In
these circumstances I will direct that the Court be kept abreast of
developments and in particular that information concerning the following be
placed before it:-
23. I
direct that this information be furnished to the Court by way of Affidavit,
such Affidavit to be sworn and served not later than the 27th January, 1999.
The matter will then be listed for further consideration by the Court on the
29th January, 1999.