Tusla ‘in contempt’ over failure to put children in secure care, High Court rules

The High Court has formally made findings of contempt against Tusla, the child and family agency, over its failure to comply with court orders directing that it place three highly vulnerable children in secure care.

In a significant judgment in July, Judge Emily Egan held that Tusla’s efforts to comply with the court orders did not excuse its failure to do so, and found the agency to be in contempt of court.

On Thursday, the judge made final orders in the action, brought on behalf of the three children against Tusla. The judge’s declaration of contempt against Tusla is believed to be the first time such a ruling has been made against a State body.

Highly troubled and vulnerable children aged 11 to 17 can be detained in a secure care unit, known as special care, on foot of a High Court order sought by Tusla.

Once Tusla determines that a child requires a secure care placement, the agency is obliged to seek a High Court order to that end.

However, due to bed shortages amid chronic staffing issues, Tusla is often unable to comply with those orders. Currently, 13 of the 26 beds across the State’s three special care units are operational.

Much of the evidence heard during the trial of the action focused on Tusla’s capacity and staffing issues.

At Thursday’s hearing, lawyers for Tusla asked the judge to adjourn final orders in the case, pointing to recent “progress” made in addressing its capacity and staffing issues at the agency.

The judge acceded to a similar adjournment application last month.

Seán Guerin, senior counsel for the agency, told the judge a business case for improved pay and conditions for special-care workers was presently being considered by the Department of Public Expenditure.

Lawyers for the children opposed the application for an adjournment.

Senior counsel Alan Brady said he was “at a loss to understand what is going to be achieved” by an adjournment. “The court has done its duty, the case is over, the judgment has been given, the text of the final order has been agreed,” he said.

Brady said the judgment was “very clear and unambiguous in its findings”.

The judge refused to adjourn the case, stating she could not see a legal basis for doing so.

She said that while she had sympathy for Tusla’s position, she could not see how the making of final orders in the case should “scupper or stymie” the efforts to address staffing and capacity issues.

She noted that “in reality”, the process to address the issues would take time. “I don’t think the court can tolerate a situation where it continuously puts its order back,” she said.

The judge made final orders in the case.

In the proceedings, lawyers for three children sought a declaration that Tusla was in contempt of court orders, arising from the agency’s failure to place the children in special care due to bed shortages.

The special-care orders were granted in respect of the children late last year.

The three plaintiff children experienced various difficulties before entering secure care, facing “profound vulnerability, exploitation, trauma and risk”.

In her judgment, Egan noted that while the three plaintiff children were eventually placed in special care, the problem of Tusla’s noncompliance with orders is a “systemic, recurring problem”.

In its defence, Tusla acknowledged its breach of the orders, expressed its wish to comply with them, and apologised to the court and the plaintiff children.

It argued that its breach was excusable, pointing to its efforts to comply with the orders by addressing staff shortages.