Republican News · Thursday 26 October 2000

[An Phoblacht]

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 altogether.

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 scandal''.

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 people.

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.

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