The High Court has ruled that the Child and Family Agency (CFA) cannot defer statutory steps toward special care for a child because no placement is available. Mr Justice Charles Meenan made two declarations in a judicial review brought by L.M., a minor, on 23 May 2023.
The court declared unlawful both a decision or policy to defer a determination under section 23F(7) of the Childcare Act 1991 because of placement shortages, and a failure, after such a determination, to apply to the High Court for a special care order under section 23F(8) for the same reason.
The case was designated a lead case because similar issues were pending before the court. The CFA argued that the proceedings were moot because L.M. was then subject to a special care order and had been placed in special care. Justice Meenan declined to treat the issue as moot, noting its bearing on other cases.
A National Special Care Referrals Committee decided on 13 or 14 December 2022 that L.M.’s case met the criteria for admission to special care. The judgment said that this should have triggered the statutory process, but no section 23F(7) determination followed at that time. The CFA admitted that its service director had not previously refused such a determination after a committee recommendation absent a material change in circumstances, and that it had previously made determinations and court applications within three weeks of committee decisions. The judgment recorded no material change in L.M.’s circumstances.
The CFA cited limited capacity and staffing at the State’s three special care units, safety requirements, HIQA registration conditions and recruitment difficulties. It also raised concern about obtaining an order it could not implement. These were the agency’s submissions, not findings that displaced its statutory duties.
Justice Meenan followed two earlier High Court decisions on sections 23F(7) and (8). He held that the statutory duties to make the determination and then apply to court were not relieved by the absence of a placement. He said the case for a constitutional challenge did not arise under that interpretation.
The court did not make the special care order in this judgment. It made the two declarations, listed the matter for mention on 16 June 2023, and directed that any costs applications be made by written submissions filed by 9 June.