Jail threat galvanises ministers
The child, who has been to hell and is not yet back, was
back in a Garda cell on Monday, 23 October, at 5.10am. By Monday
lunchtime, 23 October, she was behind lock and key in a
`therapeutic' unit, with appropriate locks, and apparently with
staff employed to care for her.
It took a threat from
Judge Kelly to jail for contempt of court the three 26-County
ministers who head the departments responsible, Education, Health
and Justice, to get the locks and staff in place.
There was outrage at Judge Kelly's order. The media screamed
about a constitutional crisis and of interference by the
judiciary with the executive. Did we want rule by judges?
The rights of the children
But equally, we could ask, do we want rule by bureaucrats
who just don't get around to doing what they have to do to uphold
the constitutional rights of a child? We are not talking about
just one child. Many children have been rejected, violently and
sexually abused, sexually exploited, physically and mentally
brutalised, condemned, through no fault of their own, to what
Judge Kelly accurately described as ``a miserable existence, and
a most unhappy life''. We're talking about some 100 children
identified as immediately in need of places of `containment' that
just aren't there.
But behind that we're talking of some
4,000 children at risk. They have much in common: poverty,
violence, abuse, alcohol, nothing passing for a home life. They
are in fosterage or in care and escape from both, wandering the
streets, homeless. They drift out of school and into petty crime,
drugs, delinquency and enter the category of `uncontrollable', or
`needing protection', posing `a threat to their own lives'.
The constitution says they have a right to be cared for. The
State, repeatedly, has failed to provide. Over the past decades,
in fact ever since the reformatories went out of fashion as
places to dump the `illegitimates', places of `containment' for
kids not convicted of crime have not been provided.
Nothing less than a scandal
There is a litany of comments by frustrated members of the
judiciary, dating from Judge Geoghegan's landmark decision in
1995, which established the state's constitutional obligation to
provide for the rights of these children. A stream of High Court
actions seeking judicial reviews which would vindicate the rights
of vulnerable children, who need to be contained for their own
welfare, have followed. These children have been sent to mental
hospitals, to prisons, and even outside of the country
The responsible departments have been
involved, according to Judge Peter Kelly in ``administrative
torpor, a history of tardiness, unseemly and wasteful
departmental wrangles, a bureaucratic and administrative
quagmire. It is no exaggeration to characterise it as a
In frustration at the repeated failure of the health boards to
provide places; in the face of evidence, given on oath, regarding
timescales for completion of units ``that had been wholly
inaccurate'', continuing changes of plan, which put everything
back to the drawing board, the judge took the unprecedented step
of injuncting the Minister of Health to complete the units the
Department had undertaken to provide.
The first injunction was in July 1998. Those units are
still not up and running, two years down the road. What other
course was open to Judge Kelly, with the departments continuously
ignoring a court injunction, unless it was to imprison those
responsible? That is what he threatened to do last week.
Far from admitting culpability, the Department and Health
Boards have consistently taken shelter behind the separation of
powers, claiming that the judge had acted outside of his powers,
encroaching into the realm of policy making. Even last week, the
State came back to court and requested the judge to alter his
direction to the three ministers and the health board to find a
place to contain this particular child or face contempt of court.
The State argued on Thursday, 19 October, that the order should
be directed against ``Ireland'' and not the ministers.
Judge Kelly threw out their application as ``unmeritorious''
and ``ill-founded''. He said: ``If Ireland does not comply, what
do I do? If I make an order that is unenforceable, it's of little
benefit to a child whose health and welfare is at stake.''
What good is a democracy if the executive branch of the
legislature is incompetent, or worse, just doesn't care? What
good is a Constitution if the government ignores court injunction
to meet its stipulations? These are big questions, which this
time were resolved by a few locks and a little money to pay
But the scandalous lack of facilities available to care for
these most vulnerable of Irish citizens is a telling judgement on
the Government and its ministers.