IN A LETTER to the government, Túsla, the State Claims Agency and the Children’s Ombudsman, published on Monday, the retired District Court Judge Dermot Simms warned of an “unprecedented crisis” arising from the lack of suitable placements for children in the care of the state.
Speaking from his experience of four years dealing with child welfare cases in the Child Care Courts, the Judge described systemic failures across state agencies responsible for the safety of the children most in need of security and care in Ireland: from Túsla to the HSE, to the Prison Service to the Gardaí.
Túsla’s interim chief executive Kate Duggan, in response, described the “unprecedented challenges” the organisation is experiencing at present, citing the inadequate number of emergency placements for children in need and the increase in unaccompanied children seeking asylum. There is nothing unprecedented, however, about the Irish state’s systemic failure in its duties to the most acutely vulnerable children in its care.
The consequences of these systemic failures have been highlighted in a scoping study published last month by researchers at UCD’s School of Social Policy, entitled “Protecting Against Predators”. The key finding of the study, which involved interviews from stakeholders across a range of agencies working with children, is stark:
Children and young people, and in particular girls, in residential care or who go missing while in State care, are being targeted for sexual exploitation in an organised manner by coordinated networks, or gangs, of predatory men.
Judge Simms’ letter warns that the state will likely face claims arising from its failure to meet its duty of care and statutory duty to these vulnerable children. The state has, however, already faced such claims. Throughout the nineties, a series of cases came before the Irish courts concerning the state’s failure to protect and vindicate the constitutional rights of children in desperate need of care. The circumstances of these children varied: their parents were dead or absent, or for a variety of reasons unable to take care of them; many of them had complex needs and had been bounced around to different foster homes and institutions. In some cases, the limited number of institutions available refused to accept children with especially complex needs. The courts confirmed that the state was under a constitutional obligation to provide for the needs of these children where their parents or guardians could not; yet the failure of the state to do so persisted.
Matters came to a head in the 2000 case of TD v Minister for Education, in which the now-retired Justice Peter Kelly became so frustrated with the persistent failure of the state over many years to provide suitable accommodation and supports for vulnerable children with complex needs – which he described at that time as “a scandal” – he granted a mandatory injunction compelling the state to take the necessary actions to provide the required facilities. Judge Kelly’s exasperation at how the government had dealt with these issues jumps off the pages of his judgment: frequent changes and reversals of policy, endless delays in providing promised high support units, drafting and redrafting of necessary legislation, and a failure to implement policies already agreed to.
Judge Kelly’s decision was appealed to the Supreme Court by the state. While agreeing that the state had breached its constitutional duties, the Supreme Court took the view that the granting of an injunction to compel it to take action was overstepping the role of the judiciary and would involve the courts making policy decisions and deciding on competing claims for resources, properly the role of the government.
In 2012, a referendum was passed to amend the Constitution to bolster children’s rights, providing for the state’s duty to step in where a parent fails in their duty towards their child to the point that the child’s safety or welfare is prejudicially affected. Even before this amendment, the Supreme Court had recognised the rights of children protected in the Constitution, declaring in a 1980 decision:
Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his/her full personality and dignity as a human being. These rights of the child… must equally be protected and vindicated by the State.
Despite this, the failures of the state to meet the needs of children in its care have persisted for a new generation who are now suffering the consequences of a system which allows them to be disadvantaged, discounted and even preyed upon.
Minister for Higher Education Simon Harris this week described the crisis as “very sobering”. Surely successive governments have been repeatedly sobered, however, at the predicament of the acutely vulnerable children in need of residential care that have been the subject of litigation over the past three decades. Litigation which, it should be noted, has often been vigorously defended by the state.
While new challenges in protecting vulnerable children have emerged in recent years – such as the ability of predators to groom young people on social media – the government cannot credibly claim that the lack of protection of children in the state’s care is a new problem. The abovementioned UCD study puts forward several recommendations, including the urgent need to investigate the organised targeting and sexual exploitation of young people in care. A long-term approach, across state bodies and overseen by the Minister responsible, is also needed if we are to avoid failing yet another generation of children in Ireland.
Seána Glennon is a lawyer, UCD Sutherland School of Law doctoral scholar and Chief Outreach Officer at UCD’s Centre for Constitutional Studies, currently a visiting scholar at Osgoode Hall Law School, York University, Toronto.
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