The High Court refused the relief sought by two applicants who challenged their transfer from Dublin to Galway after turning 18, finding that the HSE was entitled to make the transfer in exercising its discretion. The judgment also found that the HSE breached care regulations by failing to prepare a care plan for the first applicant, Esther Natasha Enguye, but said that failure did not alter the outcome of the case.
The applications were heard together on the same facts, with the court dealing with Enguye’s application under record number 2010 1020/JR. The second applicant was Nana Ama Twumasi. Both had arrived in Ireland as unaccompanied minors and entered the HSE’s care. They sought judicial review of decisions affecting their care and accommodation after reaching adulthood, including relief relating to aftercare under section 45 of the Child Care Act 1991.
Enguye had been living at Chester House Hostel in Dublin and attending St Joseph’s Secondary School. After she turned 18 in April 2010, she was transferred in June to accommodation and a school in Galway. She later left that accommodation following concerns raised by a clinical psychologist and returned to Dublin with the support of the voluntary organisation Young People at Risk (YPAR). She completed her Leaving Certificate in 2011 and had been accepted for her chosen third-level course, subject to her results. YPAR told the court it was facing financial difficulties supporting the applicants.
The judge excused the delay in bringing the case and rejected the HSE’s argument that the applicants first had to use the statutory complaints process. On the care provided before Enguye turned 18, the judgment found that the required care plan had not been put in place, contrary to the 1995 residential-care regulations. It also recorded her complaints about support and accommodation, while noting that she had done well at school and that there was no allegation she had been ill-treated or taken advantage of during that period.
On aftercare, the judge held that section 45’s use of “may” did not impose an absolute duty to provide assistance until age 21. It required the HSE to exercise its discretion while considering the individual’s need for assistance. The judge rejected the argument that government policy unduly fettered that discretion, and concluded that the transfer decision was one the HSE was entitled to make. The court declined all relief sought. The judgment did not order the HSE to provide accommodation or aftercare, and damages were no longer pursued.