The High Court has ruled that it can use its inherent jurisdiction to detain a minor in secure care where necessary to protect the child’s life or welfare, but said such detention must be exceptional, short-term and subject to regular review.
Mr Justice John MacMenamin delivered the judgment on 15 June 2007, giving reasons for a decision made on 10 May after a hearing on two legal questions. The first was whether the court could order long-term secure detention for a minor’s education and welfare. The second concerned safeguards for the rights of the child and parents.
The case concerned S.S., whose identity was redacted. The Health Service Executive (Southern Area) was the plaintiff. S.S., represented by a guardian ad litem and next friend M.L., was the defendant. His mother, M.S., his father, S.C., and the Special Residential Services Board were notice parties.
The judgment described a childhood marked by repeated moves, disrupted care and serious risks when S.S. absconded. He had been placed in secure unit B under an earlier court order and made progress there. At the May hearing, however, the court was told that the period in that unit had gone as far as it could. His guardian ad litem and mother supported further care and detention until he turned 18. The HSE accepted its continuing duties but objected that the proposed detention lacked specified details, including its regime, location and duration.
The judge concluded that the High Court’s power to detain a minor is an interim and exceptional jurisdiction. Detention must respond to an urgent, serious risk to life or welfare, have an educational or therapeutic purpose rather than a punitive one, and last only as long as proportionate and justified. The court must give the child an adequate opportunity to express views and regularly review whether detention remains lawful. Parents should be involved in decisions where practicable and consistent with the child’s best interests.
The judgment rejected a general category of “long-term” secure detention, while recognising that a highly exceptional order might have a predetermined duration beyond usual periods. It said ongoing review would still be needed. As a guide, a first review might be required within weeks.
The judgment addressed the legal principles governing the two questions; it did not set out a new long-term detention order. It records that, after the hearing, S.S. was discharged from secure care to a high-support unit with intensive therapeutic and educational care and psychiatric and psychological supervision, because there was no longer a rationale for secure detention.