The High Court has ordered the Child and Family Agency to act immediately on its statutory duties to two 16-year-old children who the agency accepted needed special care. The court found that staffing and bed capacity problems did not excuse delays in making formal determinations or applying for special care orders.
Mr Justice Mark Heslin delivered judgment on 13 October 2023 after hearing the two urgent judicial review applications together on 5 October. The children, identified only as M and B, sought declarations and mandatory orders requiring the agency to comply with sections 23F(7) and 23F(8) of the Child Care Act 1991.
The judge found that the agency had breached both statutory duties in each case. He ordered it, forthwith, to make the required determinations and apply to the High Court for special care orders. He did not decide whether either child should be placed in special care under section 23H; that decision would arise on a later application. The judgment says the court was not asked to determine those applications at this hearing.
The agency had acknowledged the breaches but opposed mandatory orders, saying it could not provide a timeframe because of staffing and capacity problems. It maintained that applications should wait until a fully staffed bed was identified. The judge found that the agency could make the determinations and applications despite those problems, and that the statutory duties did not depend on a bed being available. He said the orders would move the children closer to securing the care they needed.
The judgment records that the agency’s Special Care Committee found that both children met the criteria for admission: B’s case on 25 July 2023 and M’s on 8 August. The agency had not made what it regarded as formal statutory determinations or applied for special care orders by the hearing. The judge found that the delay was deliberate and unlawful, and that both children had suffered serious ongoing harm while awaiting special care.
The judgment describes M’s escalating risks, including repeated absences from care, substance misuse and concerns about exploitation and violence. For B, it recounts repeated absences, substance use, a broken jaw and subsequent surgery and hospital treatment. These details are drawn from evidence and documents before the court.
Justice Heslin said the court was not choosing how the agency should address its staffing problems or directing how public money should be spent. He directed that the judgment be sent immediately to the Departments of Children, Equality, Disability, Integration and Youth, and Public Expenditure and Reform. The parties’ lawyers were invited to agree the form of the order, including costs, with any dispute to be listed for mention.