The Supreme Court has found in favour of the mother of a highly vulnerable 15-year-old boy in her appeal against a refusal to find Tusla was in contempt of a court order for his detention in secure care.
Mr Justice Gerard Hogan, writing the unanimous decision for the court, said it was “deeply troubling” that a High Court order designed for the benefit of a “disturbed and vulnerable” teen was not complied with by State authorities for nearly eight months.
He said the State “prides itself on the rule of law and the commitment to democracy”.
He added: “It must be said clearly that the persistent noncompliance with High Court orders of this kind such as we have seen in this case undermines that constitutional commitment to democracy and respect of the rule of law.”
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As a secure place was found for the boy last summer, some eight months after the court ordered for his detention, the judge said the fairest outcome was that the mother’s appeal “should simply be allowed with no further order”. The judgment serves only to clarify the law and indicate steps to be taken in future, he said.
The High Court had refused the woman’s request for a declaration that Tusla, the Child and Family Agency, was in contempt of court while her son remained at “grave risk” in the community as his care placements had broken down, he was selling class A drugs and was voicing suicidal thoughts.
The agency had been legally obliged to apply for his detention in special care in December 2023, when he was aged 14. It agreed he needed to be kept in one of its specialist secure units, which are designed to de-escalate a child’s behaviour and risk of harm.
However, Tusla told the High Court it could not act upon the order for his detention then as it could not, and still cannot, open enough beds for all of the children who need them due to an acute staffing shortage.
The High Court conducts a weekly review of the cases of 12- to 17-year-olds who remain in the community despite there being orders for their detention in special care. As of last week, there were six such teens awaiting a space.
Last April, the High Court rejected the mother’s contempt application as it found it did not follow the correct legal procedure.
The judge referred to a court rule providing that an applicant seeking to invoke the contempt jurisdiction should bring a motion for “attachment” of the person allegedly in contempt so they can be brought before the court. If a person refuses to purge their contempt, the court can then commit them to prison.
The boy’s mother appealed, asking the Supreme Court to declare that the agency was in contempt when it failed to find a secure place for her son.
Her barristers, Michael Lynn SC and Brendan Hennessy, submitted that a contempt declaration simpliciter might have prompted Tusla to comply with the earlier special care order. It was considered “not appropriate” to also seek an accompanying order for a Tusla representative to be committed to prison over the alleged breach, said Mr Lynn.
Tusla contended there were serious issues of fair procedures as the case was brought by way of private action rather than under an order of the rules of court that explicitly covers contempt.
Giving the Supreme Court’s ruling on Monday, Mr Justice Hogan said his judgment makes for “depressing and dispiriting reading”.
He said the agency’s defence was essentially that the order was impossible to comply with. Given the case involved the “admitted” noncompliance with a court order, the agency should have fully explained why compliance was impossible and what steps it took to secure compliance.
The judge said the mother was entitled to bring a contempt application by means of a “slightly novel” plenary action.
The High Court was in error in finding that she could not seek a declaration simpliciter that the agency was in contempt of court, he held. In fact, he said, this is generally the “best way” of approaching a contempt application when a public body is involved.
“A finding of contempt of court would in itself be a serious matter for the public body concerned,” he said.
Chief Justice Donal O’Donnell, Mr Justice Brian Murray, Mr Justice Maurice Collins and Ms Justice Aileen Donnelly all agreed with the decision.
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