A Supreme Court judgment has concluded that the High Court exceeded the judicial role when it ordered Ministers to build and open a series of high-support and special-care units for vulnerable children at specified locations and by fixed deadlines.
The cases involved nine minors who had experienced serious behavioural and care difficulties and, in several instances, had spent periods in residential or detention facilities because suitable placements were unavailable. None of the children referred to in the judgment had a criminal conviction recorded against them.
The High Court had become involved after repeated litigation concerning shortages of appropriate accommodation. In February 2000, Mr Justice Kelly ordered the relevant Ministers to take all steps necessary to provide ten facilities around the State, including units in counties Monaghan, Clare, Limerick and Cork, within dates largely extending through 2000 and 2001.
The order reflected timelines which government departments themselves had placed before the court. The High Court considered stronger intervention necessary after earlier delays and changes in policy.
Chief Justice Keane accepted that the applicants had standing because failures in State provision had affected them personally. He also proceeded on the basis that children in exceptional circumstances could have a constitutional entitlement to appropriate treatment and accommodation where their parents could not provide it.
The decisive issue, however, was the separation of powers.
The Chief Justice held that courts may intervene where Government action or inaction breaches the Constitution, including by declaring that constitutional duties have not been met. But the February 2000 injunction went further: it required the executive to spend money on particular facilities, in specified places and within fixed times, and effectively required ministerial approval from the High Court before policy could later change.
He concluded that this amounted to the judiciary taking over functions constitutionally assigned to the executive and legislature.
The Chief Justice would therefore allow the State appeal and discharge the injunction. The judgment leaves intact the broader principle that constitutional breaches by the State can be reviewed by the courts, while limiting how specifically judges may direct executive policy.