A High Court judge who stressed the desirability of having one, not several, courts monitor the care provided by the HSE to avoid high-risk children "falling through the cracks" of the care system has been told the Attorney General is "very alive" to the issue and is addressing it.
Mr Justice John McMenamin ruled yesterday that the High Court has inherent power to detain troubled children in "longterm" secure care where evidence shows such detention is necessary to meet their welfare and educational needs. Such orders may only be made in exceptional circumstances and must be subject to constant monitoring and rigorous application of fair procedures, he stressed.
The judge's ruling in the case of S, a severely troubled 16-year-old boy in the care of the HSE, will have implications for other children in care.
The HSE had argued the court does not have jurisdiction to make such long-term secure care orders and should not do so in light of the constitutional right to liberty and because of the failure to define what "long term" meant.
The court also heard that the 2001 Childrens Act states that a special care order may be made for no less than three months and no longer than six months, but does not state if additional orders may be made on expiry of the first order.
Lawyers for the Attorney General, S, and the boy's mother said long-term secure care orders could be made once certain criteria were met and where the evidence was that such secure care was required in the best interests of the child's welfare and education. During the case, the judge said he was dealing weekly with very troubled children whose health and possibly lives were at risk.
He stressed the desirability of having one court monitor the care provided for vulnerable children and said the fact that the same children are dealt with by different courts created a real risk of some children "falling through the cracks".
Ms Maire Whelan SC, for the Attorney General, said the attorney was "very alive" to that issue, had it "in hand" and amending legislation would be needed.
The judge heard S had exhibited signs of difficult and very sexualised behaviour from a very young age and was sexually abused.
He has been diagnosed with Attention Deficit Hyperactivity Disorder and was treated with the drug Ritalin at the age of eight and since then. He has had some 17 placements and has behavioural and attachment disorders.
S has been in voluntary care since about the age of six and in the statutory care of the HSE since October 2001.
The latest care order extends to 2009, when he will be 18. It was claimed that the care plan designed for S by the HSE was influenced by the level of secure places available here.
After submissions concluded, the judge delivered his decision in outline form and said he would give his reasons at a later date.
The essential question he had to determine was whether, in the exercise of its inherent jurisdiction, the High Court can order the detention in long-term secure care of children where, on the evidence, such care was required in the interests of their education and welfare.
