A Supreme Court judge has concluded that mandatory High Court orders requiring Ministers to implement planned secure and high-support accommodation for vulnerable children were constitutionally permissible after lengthy delays in providing the facilities.
The proceedings involved nine anonymised minors whose cases formed part of a larger High Court list concerning children requiring secure residential care and intensive support. Earlier authority had established that the State could have a constitutional obligation to make reasonable provision for children with special needs where their parents or guardians could not do so.
The High Court had repeatedly adjourned cases after receiving evidence from State officials about plans for new facilities. Those plans included units or additional places in Castleblayney, Limerick, Clare, Waterford, Cork and elsewhere. The High Court later found there had been culpable delay in implementing them.
In February 2000, Mr Justice Kelly ordered Ministers to take the steps necessary to facilitate the building and opening of specified facilities by stated deadlines. Importantly, the orders reflected plans which State officials themselves had previously presented to the court.
The State respondents appealed on two principal grounds. They argued that the children lacked standing to seek such broad collective relief and that mandatory orders directing Ministers to provide facilities breached the constitutional separation of powers.
Ms Justice Denham rejected both arguments. She held that the children had standing because of the exceptional history of the litigation, the repeated adjournments based on State assurances and the common constitutional issues affecting them.
On separation of powers, she stressed that courts ordinarily favour declarations rather than mandatory orders against the executive. But exceptional circumstances could justify stronger relief where constitutional rights were being breached and delay made damages inadequate.
She considered it significant that the High Court had not devised its own social policy. It had required implementation of the executive's existing plans, subject to continuing review and liberty to apply.
Ms Justice Denham concluded that the orders were a proportionate response to protect the children's rights and said she would dismiss the appeal.