The Supreme Court dismissed the Child and Family Agency’s appeals over special care orders for two teenagers identified as M and B, holding that staff shortages did not excuse the Agency’s failure to follow the statutory process or justify refusing the orders sought for them.
The judgment, delivered by Justice Gerard Hogan on 26 February 2024, concerned four appeals arising from High Court proceedings. In one set, the High Court had ordered the Agency to make applications for special care orders. In the other, it had granted the orders. By the time of the Supreme Court appeal, both children had been placed in special care, so the immediate dispute was technically moot. The Court nevertheless decided the broader legal issue because it affected the operation of the special care system.
The Agency accepted that it had failed to make the statutory determinations required to decide whether each child needed special care, and had not made the required applications. It argued that mandatory orders were futile because it could not retain sufficient staff at the pay rates then authorised. It also argued that the High Court had discretion to refuse special care orders when no bed was available and other children were also at risk.
The Court upheld the orders requiring the Agency to make the applications. It said the law required the Agency to make a determination once the statutory conditions were met, and then to apply if it determined that special care was required. On the circumstances before the High Court, the Agency could not properly have concluded otherwise.
The Court held that the word “may” in the law left the High Court a residual discretion to refuse a special care order, but only in exceptional circumstances. That discretion could not be used to accommodate the Agency’s staffing constraints. The statutory criteria focus on the child’s welfare, the Court said, and are not expressed to depend on available resources. It therefore upheld the orders granting special care for M and B.
The Court also rejected using a statutory release mechanism as a temporary workaround for unavailable special care beds. It said that releasing a child into ordinary care when the legal test required a special care order would conflict with the scheme. It noted that contempt proceedings could potentially arise if an order could not be complied with, but no contempt issue was before it; any such application would require careful consideration.