Four reports outlining the State's proposals to meet the urgent accommodation needs of troubled children showed the deadline for meeting those needs was being pushed further and further out, the High Court has been told.
The reports, presented to the High Court last January, April, December and this week, made clear that the original time scale for providing 60 places in high-support and secure units outside the Eastern Health Board area has been extended in some cases by two years from 1999.
Mr Gerry Durcan SC, with Mr John Hanlon, for a number of at-risk children, said this delay was against a background of the urgent need, accepted by all sides, for such places and showed the constitutional rights of his clients and other such children, which were declared almost five years ago by the High Court, had still not been vindicated by the State. The courts regularly deal with children for whom no suitable accommodation is available and some children have been sent to prison because the only other alternative was the streets.
Mr Durcan told Mr Justice Kelly the issue to be decided was how these children's constitutional rights should be enforced. The courts had traditionally made declarations and adjourned children's cases to allow the State fulfil its constitutional obligations to the children.
In light of the delays in providing accommodation and the inadequate explanations for these, this was not an adequate method of enforcing the children's rights and the court should now grant an order which would ensure those rights were vindicated.
He was making closing submissions at the hearing of his application for an injunction compelling the Minister for Health and the State to adhere to time scales for the building of high-support and secure units which were set out in the Minister's own report to the court this week. Mr Justice Kelly reserved judgment.
There are now 49 high-support and secure places in the EHB area with 24 more expected in July with the opening of the EHB's unit at Ballydowd, Lucan, and an additional 24 next year when another new unit at Portrane is to open. This would make 170 such places across the State. The court has heard evidence that this should meet the projected need.
Mr Durcan has argued the injunction is necessary in the present case because of "culpable slippage" by the Minister for Health in meeting his own targets for places outside the EHB area and because many children were suffering from the delays. He said all the order would do was direct the State to take all necessary steps and do everything necessary to facilitate the building of the units, which the State had said it was going to build. A similar order was granted in 1998 directing the building of units in the EHB area and no applications had been taken to vary this.
He also contended the applicant children had locus standi to seek the order because they would be affected by the overall availability of places and had already been affected by the State's default. The court was not interfering with executive policy, it was upholding constitutional rights. Whatever policy was adopted by the State, it also must uphold those rights.
Replying, Mr Paul O'Higgins SC, for the Minister and the State, repeated his opposition to any injunction being issued and refused to give any undertaking in the terms of the order sought.
Mr O'Higgins has challenged the locus standi of the applicant children to seek the order, contending it will not specifically affect them and that they could not seek an order compelling the State to do certain things. An injunction was not the appropriate way to vindicate the children's rights which his clients were, in any event, committed to vindicating with expedition. He argued the factual circumstances were not such as to justify an injunction and the court had no jurisdiction to grant such an order, which involved entering into an area of executive policy. Injunctions relating to wide, general and mandatory matters should not be made but should be particular to an individual.
In exchanges with the judge, Mr O'Higgins denied there was a volte-face by the Minister for Health in raising the locus standi issue when the State had not raised it before in children's cases. He acknowledged the best facilities had not been available every time they should have been but that did not mean the State was breaching the constitutional right of an individual.
The judge asked what about the times he had to send children with no convictions to prison because there was nowhere suitable available. Counsel agreed there were times when the children's rights were not vindicated.
The injunction application arose from a review by Mr Justice Kelly of progress made by the State and EHB in providing secure and high-support places. The State and EHB told the court last April of their proposals for meeting such needs, including a plan to more than treble the number of such places by this year. The judge granted a lengthy adjournment so progress could be made.
When the review opened last month the Department of Health admitted "slippage" in meeting the time scales and some units would not open until 2001 and perhaps later.
The judge criticised the Department of Health for "culpable time-wasting" in meeting its obligations.
