The courts are entitled, and indeed have a duty, to intervene where there has been a clear disregard by the Government of its powers and duties under the Constitution, Mrs Justice Denham said. The courts should neither shirk nor abdicate such a duty. It was her view that it would have been an "abdication of judicial duty" for the High Court to continue to adjourn cases taken by children "on a chimera" of plans from the State for those children.
In her decision upholding Mr Justice Kelly's injunction against the State, she said the High Court had been told by a senior Department of Education inspector, Mr Ruair∅ ╙ Cillin, that troubled children had been placed in remand centres and prisons because there were no appropriate places for them, that this situation had been ongoing for years and that children had suffered damage as a result.
The High Court had held in 1995 that a child has a constitutional right to be fed and to live, to be reared and educated, and to have the opportunity of working and realising his or her full potential and dignity as a human being, and that those rights must be protected and vindicated by the State. Where a child had special needs which could not be provided by their parent and guardian, the State had a constitutional obligation to make reasonable efforts to cater for those needs.
In 1995, shortly after the FN decision, the State had outlined its plans to vindicate such children's constitutional rights. In December 1998, when reviewing what progress had been made, Mr Justice Kelly had directed the State to provide him with reports regarding the steps being taken. It appeared that proper arrangements were being put in place and the judge granted long adjournments of some 50 children's cases to facilitate these. In December 1999, after considering reports and oral evidence, the judge found that there had been culpable slippage in providing the required facilities.
She said Mr Justice Kelly was then in a "unique position" of knowledge in relation to the position of all involved in the cases.
While the courts generally did not favour making mandatory orders against the Executive, these could be made in exceptional circumstances. In this case, the order granted was not contrary to the State's policy but was to implement the State's own plans. The order was necessary to vindicate the children's rights.
