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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> JT [A Minor] v Child and Family Agency (Approved) [2025] IEHC 316 (29 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC316.html
Cite as: [2025] IEHC 316

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 THE HIGH COURT

[2025] IEHC 316

     [Record No. 2 025/373/JR]

BETWEEN

JT (A MINOR SUING BY HIS FATHER AND NEXT FRIEND GG)

APPLICANT

AND

 

THE CHILD AND FAMILY AGENCY

RESPONDENT

 

JUDGMENT of Ms Justice Miriam O'Regan, delivered on 29 May 2025.

Introduction

1.                  The within proceedings are brought by way of a judicial review application seeking to quash a decision of the Special Care Referrals Committee (the 'committee') of the respondent, of the 10 March, 2025, which determined that the applicant minor did not require special care within the meaning of s.23F of the Childcare Act 1991 as amended ('section 23F').

2.                  Leave was afforded to the applicant on 19 March 2025 in respect of the statement of grounds stamped on 19 March 2025 by the Central Office of the High Court.

Issues

3.                  Although the legal grounds comprised in the statement of grounds are extensive it appears because: –

(a) the decision did not state that the applicant would not enjoy therapeutic benefit if in special care;

(b) the therapeutic rationale was not a reason afforded in the impugned decision;

(c) the applicant appears to have resiled from the suggestion that the case law relative to the need for therapeutic rationale before making a special care order was not identified and was not accepted by the applicant, was not a basis pursued in written or oral submissions;

(d) some of the paragraphs between paragraph 31 and 41 are inconsistent and contradictory;

(e) the function of the court is not to compare and contrast the impugned decision with prior decisions made but rather to enquire as to whether or not the process by         which the decision was made was lawful or not;

the focus of oral submissions of the applicant was confined to reasons and irrationality.

It is not disputed that by the date the within reference was considered by the committee that, notwithstanding a request by the social work team, no residential placement was available for the applicant.

In total there has been three referrals to the committee seeking a special care order in respect of the applicant namely 27 May 2024, 5 November 2024 and the instant referral of 20 February 2025.

4.                  The applicant relies on the fact that in respect of a criminal charge against the applicant the district judge adjourned the hearing and recommended a special care order.

Referral

5.                  When the matter came before the committee on 4 March 2025 it was pursuant to the referral of 20 February 2025 made by the social work team and in particular the referral form completed by Victoria Weldon-Barr, Senior Social Worker.

6.                  The referral was made on the basis that the social work team has assessed the applicant as being at extremely significant risk of harm to his life, safety, development and well-being due to being exposed to negative influences thereby putting his life at risk of significant harm and death. The applicant has been in the care of his mother, who struggles with drug addiction. The applicant is involved in drug dealing, has witnessed assaults and a murder. The applicant is unable to avail of services made available to him by the social work team, such as access to education and health services, because he has been monitored and influenced by known criminals. The applicant refuses to engage with his father and will not live with him. Having regard to the totality of the applicant's situation, substantial risk-taking and influence and involvement with a criminal gang, the social work team have serious safety concerns for the applicant. 

In page 4 of the referral of 20 February 2025 it is indicated that when the social work team were discussing care options for the applicant serious safety concerns were raised regarding seeking general or private residential care placement due to the applicant's ability to hot wire and drive vehicles. Accordingly, there is a worry that placing him in general residential units would lead to him absconding as such units would not be equipped to remand the applicant.

7.                  At page 9 of the referral document it was indicated that insofar as an interim care order in relation to the applicant is concerned, worries were had that the applicant would not pass a risk assessment. Furthermore, because of the applicant's ability to hotwire a vehicle and skill at stealing vehicles it is apprehended that the applicant would abscond. If there was an attempt to place the applicant in general placement, be it residential or foster care, it is said that the applicant would abscond and go underground resulting in it being highly likely that the social work team would lose contact with him and would not know what he was doing. It is further indicated that the social work team are unsure of what drug debts the applicant's mother has and if the applicant has debts of his own and if so, this could present a very dangerous situation if the applicant was in foster care or general or private residential services not only for the applicant but for the foster carers, the other residents and the staff. The social work team concluded that all options have been exhausted and special care was the only clear option available to support the applicant.

8.                  It is clear from the extracts above of the referral document of Ms Weldon Barr aforesaid  that other care options were considered by the social welfare team and were discounted because of various concerns in respect thereof without actually implementing such alternate care arrangements, for example an interim care order was not pursued on the basis that the social work team were worried that the applicant would not pass a risk assessment and even if he did pass a risk assessment because of the applicant being skilled at stealing and hotwiring cars there was a concern that the applicant would abscond and go underground. A further issue raised in respect of the possibility of foster care or general/private residential services was the possibility that the applicant has drug debts. In discounting alternative residential or foster placement the social work team assessed that no alternative care provider within mainstream residential service will adequately be able to reduce the risk for the applicant or be able to provide safe care to him. 

Section 23.F

9.                  Section 23F (1) provides that the agency shall not apply for a special care order unless it is satisfied that inter alia "the child requires special care".

10.              In sub.(2) it is provided that where the agency is satisfied that there is reasonable cause to believe that the behaviour of the child poses a real and substantial risk of harm to his or her life, health, safety, development or welfare, and having regard to that behaviour and risk of harm, where the agency has assessed the care requirements of the child and is satisfied that there is reasonable cause to believe that the provisions of care to the child other than special care and treatment under the mental health services, will not adequately address the behaviour and risks and the agency is satisfied that there is reasonable cause to believe that the child requires special care to adequately address the behaviour and risk of harm and care requirements which it cannot provide without the High Court making a special care order, the agency shall make arrangements to carry out the consultation referred to in sub.(3). Although, under sub.(4) it is provided that where the agency is satisfied that there is reasonable cause to believe that it would not be in the best interest of the child to not consult with any or all of the following persons, the child, a parent having custody of the child, the guardian, a person acting in loco parentis, the agency should not consult with such a person.

11.              The section then goes on to provide for the convening of a family welfare conference, or not if not in the best interest of the child and following that, under sub.7, where the agency is satisfied that there is reasonable cause to believe that the child requires special care it shall make a determination as to whether the child requires special care.

12.              It appears to me that it is clear from the foregoing and indeed the views expressed by the MacGrath J in CK that the relevant determination anticipated by s.23F is not concluded by a fulfilment of s.23F(2) but rather by sequentially following  the requirements set out in s.23F with the ultimate determination being made following the convening, or not, of the family welfare conference, under s.23F(7).

13.               Insofar as care other than special care is concerned s.23F(2)(b) requires the Respondent to be satisfied that there is reasonable cause to believe that such care (other than special care) will not adequately addressing the behaviour or risk of harm to the child.

14.              In the impugned decision it was stated that, "the committee are not satisfied that the provision of other care would not adequately address the child's behaviour and risk of harm and his care requirements. The committee noted that there are other care options which have not been exhausted. Special care is a deprivation of liberty and there are other options yet to be explored."

Submissions

15.              In the legal grounds identified at paragraphs 42 and 43 the applicant argues that by the time a consultation under s.23F(3) was convened a determination had already been made that other care arrangements (other than special care) will not adequately address the minor's behaviour and risk. This argument is based on the assumption that the decision that the applicant should be placed in special care under the provisions of s.23F was made prior to the matter coming before the committee. Such interpretation would render sub. (7) of s.23F redundant and therefore does not comprise a legitimate interpretation of the section. Nor is the argument consistent with para. 66 of C.K. to the effect:-

"That it may decide that there is reasonable cause to believe that the behaviour of the child poses a risk as defined in s.23(F)(2)(a), however, does not necessarily result in the incurring of an obligation to make application to court. It is but one stage in the process."

16.              Paragraph 45 of the statement of grounds presupposes that the only possible care arrangement that might be put in place in respect of the applicant, other than an order for special care, is residential placement.

17.              The applicant argues that other care options were not identified within the decision and therefore the decision is unreasoned. It was further argued that the decision was irrational in its conclusion that a special care order was not required as there was no material before the committee to support such a conclusion.

18.              The applicant further argues that all other care options were explored and rejected as suitable.

19.              Both parties rely on the decision of MacGrath J of 1 May 2019 in the matter of CK v CFA [2019] IEHC 635. The applicant relies on the judgment as confirming that there must be information in the documents before the decision maker to ground a finding contrary to the social work teams recommendation.

20.              The applicant relies on all of the extracts above from the referral document to support the proposition that all other care options have been exhausted and special care is the only possible care option now available for the applicant. On the other hand, the respondent argues that the details above of the social work team demonstrates that the social work team in fact discounted alternate care options without, notwithstanding their substantial misgivings, implementing such care options in the hope that one or other of the same would be suitable for the applicant.

21.              The applicant has referenced the judgment of O'Higgins J of 8 April 2025 of GH v Tusla Child and Family Agency [2025] IEHC 263 wherein the Court gave detailed consideration to the jurisprudence relative to the principle of reasons required to ensure that a decision is lawful and at para.66 of the judgment indicated that jurisprudence identified that any person affected by a decision was entitled to know at least in general terms why it was made and any person affected by the decision was entitled to have enough information to consider whether they could or should avail of any appeal or bring judicial review of the decision. It was noted that such an approach "may vary greatly from case to case and the type of reasons that will be necessary". At para. 67 the Court noted that the respondent agency effectively changed position in a later decision and opted not to give reasons resulting in the requirement of a reasonable explanation of the decision-making process being enhanced.

22.              In the decision of the Court of Appeal of 12 April 2019 in the case of The CFA v NL & Ors , [2019] IECA 109, Donnelly J on behalf of the Court identified the progress of the potential to detain a youth under the inherent jurisdiction of the court, prior to the introduction of s.23F. The Court indicated that following the decision of the ECHR in DG v Ireland [2002] EHRR 1153 it has generally been accepted that the rationale of any detention order must be educational and therapeutic with no punitive element in order to vindicate the convention rights of a minor. At paragraph 168 of the judgment it was indicated that it is clear from the structure of s.23H (which is similar in content to s.23F save that s.23H is dealing with the court's ability to make a special care or as opposed to the within respondent's ability to apply for same)  that a special care order is very much intended to be a measure of short duration and of last resort. The Court indicated that a special care order is an intervention that involves the deprevation of a child's liberty and all the prerequisites to jurisdiction must be met. 

23.              In the matter of CK aforesaid MacGrath J considered s.23F. At paragraph 28 of the judgment, the nature of the challenge to the relevant decision was to the effect that no reasonable decision-maker could have arrived at the conclusion that the requirements of inter alia s.23F(2)(a) were not satisfied. Accordingly, it was claimed that the process of the respondent became fatally flawed when it decided that the behaviour of the child did not pose a substantial risk of harm to his life and safety development and welfare and flies in the face of common sense. At para.63 the Court expressed the view that the special care procedure is to be used as a last resort when all other forms of care would not adequately address the risk posed by the behaviour in issue. At para. 60 the Court did accept the submission that due regard had to be had for the role which has been delegated to the respondent under the provisions of the 1991 Act particularly its function under s.23 and the specialised role played by the committee in arriving at its decision. At para.76 the Court accepted that care should be taken by the court to refrain from adopting an unduly narrow and restrictive interpretation or review of the decision with the remit and task of the committee being much broader than simply deciding whether the relevant risk existed. At para.74 the court noted that special care order should not be granted merely to prevent a child from harming himself or herself or of engaging in criminality.

 In dealing with the provisions of s.23F at para.66 of his judgment MacGrath indicated that "the committee must be satisfied that there is reasonable cause to believe the behaviour of the child poses a real and substantial risk of harm to his life, health safety development or welfare and if not satisfied that is the end of the matter. Being so satisfied is a pre-requisite to the obligation to consider the other statutory criteria and ultimately the making of a determination". It may decide that there is reasonable cause to believe that the behaviour of the child poses a risk as defined in s.23F(ii)(f), however that does not necessarily result in the incurring of an obligation to make application to the court. It is but one stage in the process. 

Conclusions

24.              It appears to me given that: -

A)      special care is an option of last resort,

B)     under the provisions of s.23F care other than special care must be considered to be inadequate to address the behaviour and risk of harm and care requirements of a particular minor prior to determining special care is required given that special care is an option of last resort.

C)     having regard to the fact that the social work team did identify other possible care arrangements and the basis why the social work team discounted various other care arrangements as identified above,

D)     given that the committee is an expert body,                                                                  the committee's finding that there are other care options not fully exhausted is both reasonable and rational and the view that the committee was not satisfied that the provision of other care would not adequately address the applicant's behaviour and risk of harm and care requirements is a valid view within the competence of the committee and not irrational. 

 

25.              In the circumstances the reasons for the committee coming to the conclusion that it was not satisfied that the provision of other care would not adequately address the applicant's behaviour, risk of harm and care requirements have not been exhausted is not irrational as there was material before the committee from which it could reach such conclusions. Furthermore, the content of the referral document aforesaid is such that it identifies the reasons why the committee was not satisfied other care options have not been exhausted to enable it to reach the conclusion that the applicant did not meet the criteria for a special care intervention. 

26.              I am satisfied therefore that orders sought should not be made in the circumstances.

27.              As this judgment is being delivered electronically, with regards to the issue of costs, as the respondent has been entirely successful, it is my provisional view that the respondent should be entitled to their costs, to be adjudicated in default of agreement. As the parties have not had an opportunity to make submissions as to costs, I shall allow the parties the opportunity to make written submissions of not more than 1,000 words within 14 days of this judgment being delivered should they disagree with the order proposed. In default of such submissions being filed, the proposed order will be made.



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