High Court finds Tusla in contempt of court

The High Court has found the Child and Family Agency Tusla is in contempt of court for failing to provide secure placements for vulnerable children despite being directed to do so.

Legal sources say it is believed to be the first time a State agency has been held to be in contempt of court.

The action was taken on behalf of three children in respect of whom special care orders were made by the High Court.

Ms Justice Emily Egan said even though these children had now received placements, it was a systemic and recurring problem and there were still five to seven children every week for whom no special care beds were available despite orders being made.

The court did not order any further measures to be taken as a result of the declaration of contempt.

Judge Egan said such a declaration was likely to be taken extremely seriously by the agency and by the State and she said it should give rise to meaningful change and a heightened sense of urgency.

'Seminal judgment'

Solicitor Brian Keenan, who represented one of the children, said it was a "seminal judgment" and he hoped it would give rise to significant change.

Mr Keenan said it was a significant victory for the voices of the vulnerable children his firm represented.

Special care allows for children whose challenging behaviour poses a risk to their life, health, safety or welfare to be detained in a secure therapeutic environment.

There are 26 special care places in three units in Ireland. However due to staff shortages, these units are not operating at full capacity.

In her ruling, Ms Justice Egan said that at the time of the events outlined in her judgment, only 16 out of 26 special care beds were open.

She said the service had never operated at full capacity and staff were leaving almost as quickly as they were recruited.

The judge said the human tragedy at the centre of these proceedings was not new and had been playing out in the courts for more than seven years.

High Court Judge John Jordan operates a "no beds" list every week, which reviews the cases of children who should be in special care but for whom no bed is available.

These children frequently face risks to their lives and health because of their circumstances.

Special care cases

The first child in this case came into Tusla’s care because of serious concerns for his safety and that of his family. He had become involved in buying and selling drugs and gardaí believed he was under the coercive control of an older drug trafficker.

His family had been subjected to threats and had to leave their home at times for their safety.

The second child was not yet a teenager when a special care order was made.

He had been exposed to domestic violence, parental conflict and allegations of physical punishment since birth and had displayed extremely challenging behaviour in care.

There were also serious concerns that he was being exposed to criminal and possibly sexual exploitation. And the court heard he was living a chaotic and dangerous existence.

The third child had been in State care since she was a baby. She had severe emotional issues and showed the effects of intergenerational trauma, the judge said.

Care placements broke down because of her behaviour and she repeatedly absconded, engaged in self-harm and assaulted staff.

The court also heard evidence about her vulnerability to sexual exploitation.

Judge Egan said all three cases revealed children facing profound vulnerability, exploitation, trauma and risk.

The court had decided each of them needed special care urgently, she said, but all three were left waiting for the protection the law had deemed necessary.

She said they needed care and protection they did not receive.

She said children and young people were especially vulnerable and the State was under an obligation to safeguard their life, dignity, physical integrity and essential welfare.

The agency had been tasked to provide for special care and vindicate the children’s constitutional rights and special care was the only means by which this could be done.

The judge said once the High Court had made a special care order, there was a mandatory, statutory duty on the Child and Family Agency to provide a place to the child.

She said making such an order and admitting a child to special care related solely to the child’s welfare and best interests and did not depend on resources.

She said the provisions were tightly drawn to vindicate the constitutional rights of a small group of highly vulnerable children.

And she said the Oireachtas did not intend resource constraints to limit or qualify the duties imposed by the legislation to provide special care.

She found that if the legislation was too onerous, the remedy was not "systematic non-compliance" but to amend or repeal the law. And she said there would be significant concerns about the rule of law if public bodies could be exempt from their statutory duties by claiming it was impossible to fulfil them.

If the courts accepted resource-based non-compliance, she said this would effectively allow the Government to "nullify legislation by inaction".

Agency accepts it is in breach of court orders

Ms Justice Egan said Tusla had accepted it was in breach of court orders.

It acknowledged that it wished to comply with them and had apologised to the children and the court. But she said a declaration of contempt could be made even if a breach of a court order was not wilful, deliberate or disrespectful.

She also ruled that technical contempt of court could be established, even if compliance with the court orders was impossible, although she said impossibility was not alleged in this case.

She said a technical contempt of court could be established, even if the agency had made good faith, best efforts to address its staff shortage and comply with the court orders.

The judge said the agency had pointed to various pay-related and non pay-related initiatives it had taken to attract staff.

She said it had until recently maintained that it needed to improve pay to attract staff in this area.

She said that in 2024, it had secured a new grade which offered a "very modest improvement" in pay for special care workers.

But it was not sufficiently attractive to address the shortage.

The judge said it was a reasonable inference that improving pay was the best prospect of improving the staff shortage.

But she said the agency currently submitted that it no longer attributes staff shortages to inadequate pay and did not intend to pursue improvements in remuneration.

She said it had not given any reasonable explanation for this change.

The judge said new non pay-related initiatives would not result in special care units being able to operate at full capacity for several more years.

She pointed out on several occasions in the judgment that because of the challenging nature of special care work, pay and conditions must be sufficiently attractive to draw social workers in.

Judge Egan found that the agency had failed to prove that its breach of the special care orders was excusable.

She said its evidence fell short of demonstrating that its efforts to comply with High Court orders excused its failure to comply.

She ruled the agency was in contempt of court and granted the declaration to that effect sought by the children.