The Child Care Law Reporting Project (CCLRP) has also found that these “secure care” cases are being dealt with in the High Court in an ad hoc way because of a four-year delay commencing legislation.
The CCLRP, which spent 18 weeks covering the High Court Minors’ Review List, highlights the issues in its final report which will be published today.
The Government says that while there are just 17 secure care places nationally, the Child and Family Agency, Tusla, has access to 177 open, non-secure residential centres, some of which are run by private organisations.
In May, these residential centres held 343 children, most of them older teenagers requiring some level of high support, who are there either on a care order from the district court, or in voluntary care.
However, a small number of children with highly specialised needs are being sent to special centres abroad.
“We have been present at numerous cases both in the High Court and District Court where a child has been judged to need either secure care or high support, but the court is told no suitable bed is available,” the report said.
“Detaining children who have not committed any offence, against their will under secure care orders, even when it is deemed necessary for their welfare, is a very serious matter, and the basis for it has been considered very deeply by the High Court in a number of judgments.
“The jurisdiction for making secure care orders lies in the High Court, though the legislation providing for this has never been commenced, so the High Court continues to exercise its inherent jurisdiction.
“It is questionable that this is the most efficient way of dealing with the needs of such vulnerable children, many of whom are also the subject of care orders made by the district court.”
The Child Care (Amendment) Act 2011 provided for special care orders to be made by the High Court, and spells out the basis for making any such orders. However, more than four years after being enacted, the 2011 act remains to be commenced and secure care orders continue to be made in the High Court.
This means that there is no statutory regime; no rules that must be adhered to; and no protocols for assessing the suitability of the secure care regime for the particular child, the report points out.
“This inevitably gives an ad hoc character to these proceedings,” it says.
Such cases are also extremely costly, with legal costs in the order of €1m linked to one case still before the courts.
It also costs €560,000 a year to keep the child at the centre of this case in St Andrew’s unit in Northampton, where other Irish children and adults are regularly detained.