Supreme Court considers using contempt of court jurisdiction in vulnerable child custody cases

The Supreme Court will consider whether it is appropriate to invoke contempt of court jurisdiction in cases involving the necessary state care of very vulnerable children.

A panel of senior judges has ruled that issues of “general public importance” arise in an “urgent” appeal against the High Court’s refusal to declare Tusla in contempt of a court order by failing to detain a severely disturbed 14-year-old boy in a special care unit.

The High Court heard the boy was at “serious risk” and had recently been missing from his community care centre for more than 10 days.

Last week the court considered the situation of five young people for whom special care detention orders were made but not enforced due to a shortage of places in the units, which are specialist settings designed to de-escalate behaviour and the risk of harm to young people aged 12 to 17.

Tusla, the children and families agency, says it cannot provide special care beds for all children who need them because it is unable to recruit enough staff.

Alcohol and drug abuse, exploitation, crime and trauma are common problems in the lives of children placed on the High Court’s special care list. It heard that a minor who recently needed a place was being sexually exploited by adult men.

High Court Justice John Jordan found that the contempt application, filed by the 14-year-old boy through his mother, had not followed the proper procedure. The judge referred to a rule of the court which provides that an applicant seeking to invoke contempt jurisdiction must bring an application to “seize” the person allegedly in contempt of court.

In her appeal, the mother argued that she had not sought to have a Tusla staff member arrested and imprisoned because the continued breach of special care orders amounted to an “institutional failure”. Her lawyers said targeting a specific individual did not seem appropriate.

She wants the Supreme Court to clarify what remedies are available to parties who want to ensure Tusla complies with High Court decisions. She asked whether the only remedy was to imprison a representative of the institution. Her application was supported by the boy’s father and his court-appointed lawyer. Tusla argued that the High Court had made no legal error in its decision.

Three Supreme Court justices ruled that the appeal was “urgent” and important enough to warrant bypassing the intermediate appeals court.