Supreme Court allows appeal, discharging injunction on state's duty to provide special care units for children.

THE SUPREME COURT

KEANE C.J.

DENHAM J.

MURPHY J.

MURRAY J.

HARDIMAN J.

203/00

BETWEEN

T.D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M.D.)

APPLICANT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL, THE EASTERN HEALTH BOARD AND BY ORDER OF THE

MINISTER FOR HEALTH AND CHILDREN

RESPONDENTS

BETWEEN

D.B. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND S.B.)

APPLICANT

AND

MINISTER FOR JUSTICE, MINISTER FOR HEALTH, MINISTER OF EDUCATION, IRELAND, THE ATTORNEY GENERAL AND THE

EASTERN HEALTH BOARD

RESPONDENTS

BETWEEN

M.B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M.B.)

APPLICANT

AND

MINISTER FOR EDUCATION, IRELAND, THE ATTORNEY GENERAL AND EASTERN HEALTH BOARD

RESPONDENTS

BETWEEN

G.D. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND K.O’D.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION AND SCIENCE, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

G.D. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND A.D.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

P.H. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND R.F.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

B.J. (A MINOR SUING BY HIS GUARDIAN AD LITEM R.F.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION AND SCIENCE, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

T.L. (A MINOR SUING BY HER GUARDIAN AD LITEM C.O’D.)

APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY

GENERAL

RESPONDENTS

BETWEEN

S.T. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND D.T.)

APPLICANT

AND

MINISTER FOR EDUCATION AND SCIENCE, IRELAND, THE ATTORNEY GENERAL AND EASTERN HEALTH BOARD

RESPONDENTS

JUDGMENT delivered the 17th day of December, 2001 by Keane C.J.

1 Introduction

The appeal to this court in these cases comes at the end of a lengthy sequence of such cases in the High Court, where the

court has been asked to ensure that the State discharges what is claimed to be its constitutional obligation to provide for the

accommodation needs of children with particular problems. The order appealed against requires the first and fifth named

respondents in the first entitled proceedings (hereafter “The Ministers”) “(in relation to all the aforesaid entitled proceedings)

[to] take all steps necessary to facilitate the building and opening of secure and high support units in places as follows.....”

There follows a list of ten “high support” or “special care” units which, under the terms of the order, are to be built and opened

by specified dates in different parts of the State. A list of the units so specified will be found in the Appendix to this judgment.

The order was made on the 25th of February 2000 for the reasons set out in the reserved judgment delivered on that day by

Kelly J.

Since the judgment and order has its origins in the first of the cases in the title, T.D., it is convenient to set out the facts of

that case at the outset. The applicant was born on the 9th January 1983 and is accordingly now aged eighteen. At the date of

the judgment and order in the High Court, he was aged seventeen. He began his educational career in Goldenbridge National

Schools, Dublin, and in 1990 was enrolled in the Phoenix Park Special School for pupils with emotional disturbance and attended

there for one year. He was then placed in Warrenstown House, an Eastern Health Board residential unit which also provided

educational facilities, from May 1991 to September 1992. He attended St. Laurence O’Toole Special School until June 1995, but

did not return in September as it was alleged that he was being bullied by other pupils. On the 19th November 1996, the District

Court made an order pursuant to S.58(4) of the Children Act 1908, (hereafter “the 1908 Act”) as a result of which he was

placed in St. Laurence’s, Finglas, Dublin. Thereafter he was placed in a number of different institutions. At the date of the

hearing in the High Court, he was living with his parents in Inchicore.

A report from Dr Gerard Byrne, a consultant psychiatrist, dated 30th November 1998, stated that:-

“T. needs to be placed in an environment with a high staff ratio where he can learn better controls in the context of

forming attachments to staff who care for him. He does not need a secure unit and, indeed, I think a secure unit is

contraindicated. A secure unit is likely to place him in contact with a far more delinquent peer group. Given his

difficulties with impulse control and general immaturity such a setting would cause a deterioration in his general state.”

Proceedings were commenced by way of judicial review in the High Court. The relief sought included inter alia an order of

mandamus directing the respondents to provide for appropriate education suitable to the needs of the applicant in a suitable

educational establishment. The matter appears to have come before the learned trial judge for the first time on the 5th

November 1998, at which stage T.D. was being detained in Oberstown Boys’ Centre. It was ordered that that should continue

until further order and that the matter should be listed for review by the court on 1st December 1998. On 4th December 1998,

the court directed that specified information should be placed before the court not later than the 27th January 1999: this

related to the provision by the state agencies of particular facilities and the time within which those facilities would be

provided. The further hearing was then adjourned until 29th January 1999. It appears to have been adjourned again until the

16th March 1999, when T.D. was ordered to be arrested and detained in St. Patrick’s Institution until further order. The matter

came before the court on the 26th March, and was adjourned again until the 26th April. Ultimately, on the 11th October 1999,

the case was adjourned generally with liberty to re-enter.

These comparatively lengthy adjournments were given by the trial judge, with the agreement of the appellants/respondents, so

that they could place before the court evidence as to the progress being made by the appellants/respondents in the provision

of facilities for children in the position of T.D. However, when the matter came before the High Court again on the 16th

December 1999 and evidence was given by officials as to these matters, it was also pointed out on behalf of the

appellants/respondents that, given the age of T.D., the proceedings were effectively moot as far as he was concerned. At that

stage, there were a number of other applications pending before the High Court which also arose out of the lack of appropriate

residential facilities for children in the same position as T.D. The trial judge indicated the approach he was adopting as follows:-

“In principle, it seems to me that the applicants are entitled to injunctive relief but I am not going to make a final

decision on that until I have heard further submissions. What I am going to do is permit the applicant to set down a

notice of motion, not merely in the (T.D.) proceedings but in all of the proceedings, one single motion which can be

entitled in all of the proceedings so a technical objection taken by the Minister can no longer have any effect. That

motion can be set down for early next term, in which you can spell out with precision injunctive relief. What I have in

mind is that you will seek injunctions which will accord precisely with what has been put before me by way of oral

evidence from the Department of Health concerning (a) the facilities that are to be provided and (b) the time in which

such facilities are to be provided. I am not interfering in departmental policy. I am merely taking steps to ensure that if

such an injunction is granted, having heard further submissions from counsel on all sides, that if such an injunction is

granted it will simply mean that the departmental word will be its bond insofar as this court is concerned, and that if

there is to be a further departure from the time scale that has been given to me, it can only be brought about on

application to this court. It will also mean that I will be fully apprised of all the developments. As I said in D.B. a variation

of the time scale chosen by the Department, given the sworn testimony by the Department, will not be departed from

save for various strong and cogent reasons.”

(The reference to D.B. is to a decision of the trial judge reported sub. nom DB-v- Minister for Justice [1999]1IR 29.)

In accordance with the approach thus indicated, a notice of motion was served on behalf of T.D., and the eight minors named

as applicants in the other proceedings, claiming an injunction directing the Ministers to take all the steps necessary to facilitate

the building and opening of the secure and high support units in the places specified in the Appendix. On the hearing of this

application, further oral evidence was adduced on behalf of the Ministers confirming earlier evidence that the units and places

would be provided within the time limits specified in the Appendix. The trial judge also heard submissions on behalf of the

applicants and the respondents: it was made clear on behalf of the Ministers that they were not prepared to give an

undertaking to the court that the units and places would be provided within the time scale specified.

Before considering the reserved judgment delivered by the trial judge on the 25th February 2000, the legal and factual context

in which he gave that judgment must be referred to in more detail.

The Legal Background

The sequence of events which culminated in the judgment and order under appeal began with the decision of the High Court

(Geoghegan J.) in FM -v- The Minister for Education & Ors [1995]1 IR409. The applicant in that case was a twelve year old

child whose father was unknown and whose mother - dead at the time of the application - had had no contact with him since

an early age. After he had spent a period of time with foster parents, the Eastern Health Board obtained an order under S.58(4)

of the 1908 Act which empowers the District Court, on the application of a guardian, parent or “fit person” who is unable to

control a child and who understands the consequences of an order under the subsection, to order the child to be sent to a

certified industrial school named in the order. Following the obtaining of that order, the Eastern Health Board subsequently

provided various types of accommodation for him. He was ultimately diagnosed as suffering from what was described as a

“hyperkinetic conduct disorder” by a consultant psychiatrist who recommended that he should spend a period of time in a

secure unit which could contain him safely while addressing his behaviour. On the application of the Eastern Health Board, an

order was made under S.58(4) of the 1908 Act: however, the managers of the industrial school named in the order - St.

Joseph’s in Clonmel - were not willing to take him. The managers of the only other certified industrial school in the country at

that time, St. Laurence’s in Finglas, were also not prepared to take him. In the course of his judgment, Geoghegan J. pointed

out that, at the time of the passing of the 1908 Act, there were a large number of certified industrial schools, the list of which

is to be found in O’Connor’s ‘The Irish Justice of the Peace’ (volume 2, p.162).

The applicant was then given leave by the High Court to apply for relief by way of judicial review in the form of a declaration

that the respondents to the application (The Ministers, Ireland and the Attorney General) had failed to protect and vindicate

the applicants’ constitutional rights under Articles 40.3 and 42 of the Constitution and an order of mandamus directing the

respondents to protect and vindicate the constitutional rights of the Applicant by inter alia:-

“(a) providing forthwith secure accommodation for the Applicant;

(b) providing forthwith for the religious and moral, intellectual physical and social education of the Applicant”

The circumstances in which that application came before the court are not entirely clear. As already noted, the applicant’s

father was unknown and his mother was dead. He is described as suing by his next friend M.H., but there is no indication as to

the relationship between the next friend and the applicant. The Eastern Health Board are described in the judgment as the

“guardian” of the applicant, but I assume that this is because one of the legal consequences of the making of a “fit person”

order was that the person concerned enjoyed the same control over the child as its parent or guardian would have enjoyed in

the absence of such an order. The Eastern Health Board were joined as notice parties and (a statement of opposition having

presumably been filed on behalf of the respondents) the substantive hearing came on before Geoghegan J.

In the meantime, a place had become available for the applicant in an institution called “Glen House”, which was not a certified

industrial school but was a health board institution for housing more difficult children. Counsel for the Eastern Health Board

indicated to the court that his clients, as the persons having control of the applicant under the fit person order, were satisfied

that the appropriate course was for the applicant to be accommodated there, at least for the time being.

However, counsel for the applicant objected to that course of action being taken on both legal and factual grounds. In the first

place, he submitted that the Health Board, having applied to the District Court under S.58(4) of the 1908 Act, were now

functus officio and that “the matter is in the hands of the District Court”. The trial judge rejected this submission, pointing out

that the District Court had no jurisdiction to order the applicant to be sent to any particular certified industrial school without

first ascertaining that the manager was prepared to take him, as was made clear by S.62(1) of the Act. Consequently, he took

the view that the health board continued to be responsible for the child and was entitled to place the child in such institution

as it thought fit, subject to his legal and constitutional rights.

The Glen House proposal was also opposed by counsel for the applicant on a number of grounds, i.e. that the actual physical

building was unsuitable, that there would be other children there who would have criminal tendencies, that the staffing would

be inadequate and that it did not comply with the requirements of “containment for treatment” indicated by the medical

witnesses. However, while the trial judge was satisfied that these criticisms were to some extent well founded, he considered

that, as a temporary solution at least, the applicant should go to Glen House.

On one view, that should have been enough to dispose of the case, since the Health Board, the body in control of the child in

the absence of a parent or guardian, was satisfied that accommodation appropriate to his needs, at least for the time being,

was available in Glen House. If the parents of F.M. had been parties to the proceedings and had told the court that they were

in agreement with the view of the Health Board that the child should be accommodated at least for the time being in Glen

House, it is difficult to imagine that the court would have given any weight to objections from any other party, and the Health

Board were, of course, in the same position in legal terms as the parents.

It was, however, submitted on behalf of the Ministers and the other respondents that there was no constitutional obligation on

the State to provide services beyond what was at present available so as to cater for the particular needs of a person in a

position of the applicant. The trial judge rejected that contention, saying that he was satisfied that, in the case of children

with “very special needs” which could not be provided by their parents or guardians, there was a constitutional obligation on

the State to cater for those needs in order to vindicate the constitutional rights of the child. He went on:

“It would seem to me that on the balance of probabilities the provision of such necessary accommodation,

arrangements and services by the State as might meet the necessary requirements of this applicant is not so

unpractical or so prohibitively expensive as would come within any notional limit on the State’s constitutional obligations.

There may be differences of opinion among the experts as to the level of staffing arrangements which would be required

even on a temporary basis, for the proper care of F.M. but I am not convinced at present that even the more extreme

view taken by Dr Byrne as to staff ratio is prohibitively expensive. He has given evidence that similar facilities are

available in Canada and other countries. I would have thought that in considering questions of expense and practicality,

the State would have regard not merely to the immediate cost but to a possible long term saving of cost if the special

treatment of recalcitrant children led in the long term to a reduction of crime and drug abuse. But these are obviously

to some extent areas of policy. I advert to them merely to indicate why it is not self evident to me that the more

elaborate requirements suggested by Dr Byrne fall outside the ambit of any constitutional duty owed by the State.

“In summary I take the view that the State is under a constitutional obligation towards the applicant to establish as

soon as reasonably practical, either by use of S.58(4) of the Act of 1908 or otherwise, suitable arrangements of

containment with treatment for the applicant. In the meantime I am accepting that Glen House is as good a temporary

solution as any. I do not propose to make any immediate declaration or order in this case for the time being. I will,

however, order that the case should stand adjourned and will discuss with counsel the length of the adjournment”.

The further history of that case is summarised as follows by Kelly J. in D.B.:-

“Seven days after he delivered judgment in March 1995, Geoghegan J. was apprised of developments proposed by the

Minister for Health concerning the provision of residential places for both young offenders and children in need of special

care. This information was obviously considered by the court as demonstrating the clear intention on the part of the

Minister to address in a realistic and timely way the entitlements of F.M. and others like him. As far as the court was

concerned, there was no reason to believe other than that those proposals would be implemented”.

D.B. was also a case in which the applicant, then aged fourteen years, was in need of accommodation in a secure environment

from which he could not readily escape. A number of orders were made by judges of the High Court as to his custody, care and

control, and ultimately he applied to the court for an order directing the Ministers for Justice, Health and Education to make

available to the Eastern Health Board sufficient funding to allow them to build, open and maintain a secure, twenty-four bed,

high support unit at Portrane in Dublin. They also sought an order directing the Ministers to take all steps necessary to facilitate

the building, opening and maintenance of the unit. Finally they sought an order directing the Ministers to take such steps as to

the court might seem fit and proper to ensure that there was adequate secure high support accommodation available for the

applicant “and for others with similar needs”.

In his judgment, Kelly J. said that, since shortly after his appointment to the bench in April 1996, he had been involved in

dealing with cases of this type. During the course of a hearing before him in April 1997, it had emerged for the first time that

the proposals of which Geoghegan J. had been informed in March 1995 had been, as he put it,

“substantially departed from without that fact ever having been made known to the court”.

He went on to review what developments had taken place since then and referred to proposals for the provision of two units, a

detention unit and a high support unit. (A high support unit does not have the same type of detention facilities as are provided

in a detention unit proper.) Two sites were identified, one at Ballydowd, Lucan, Co. Dublin and the other at Portrane, Co. Dublin.

At the time of the hearing before the trial judge on the 29th July 1998, it was estimated that these facilities would not be in

place, in the case of Ballydowd, until 2000, and in the case of Portrane until the end of 2001. The trial judge found that these

delays were the result of frequent changes of policy on the part of the Minister. He also referred to the evidence on behalf of

the Eastern Health Board that sixty places - a mixture of detention places and high support units - were required to

accommodate children with needs such as those of the applicant: the position at that time was that there were only eighteen

such places available.

Kelly J. was highly critical of the manner in which the executive had dealt with the problem, describing the interdepartmental

wrangles, delays in drafting and redrafting legislation and reverses in policy as “a scandal”. Having said that he was satisfied

that the court had jurisdiction to make orders to ensure that the constitutional rights of persons such as the applicant were

upheld, although it was not a jurisdiction to be exercised lightly, he went on:

“It has also been suggested that little would be achieved by the grant of such an injunction. I do not agree. The granting

of this injunction means that the Minister is no longer at large concerning the approach to be adopted to solving this

problem. The developments proposed will now have to be completed and within the time scale specified. If there is to be

any future change of policy or if the times indicated cannot be met, application will have to be made to this court on the

part of the Minister for a variation of the injunction. This will mean that not merely will the court have to be informed of

all of these developments (something sadly lacking to date) but objectively justifiable reasons will have to be furnished

to it as to why an injunction should be varied. A variation will not be granted lightly. This will afford to the court an

opportunity of much greater involvement than it has been possible to have in the past. It will mean for these minors

that the court, having declared their entitlements, will now see to their implementation in a direct way”.

The Factual Background

The circumstance of each of the other applicants in the present proceedings should be next summarised.

The applicant D.B., at the time of the hearing in the High Court, was aged sixteen years and one month. His behaviour appears

to have deteriorated from the age of eight onwards and he was accommodated in a number of different institutions, but did not

display any significant improvement. He was ultimately the subject of criminal charges, but no conviction was recorded against

him. On 22nd October 2000, he was placed in Trinity House pursuant to an order of the High Court.

M.B. was aged fifteen years at the time of the hearing in the High Court. She was also accommodated in a number of different

institutions, but the results were unsatisfactory: she was eventually admitted to Oberstown Girls Centre on 19th May, 1998

pursuant to an order of the High Court. At the time of the High Court hearing, she was residing in Newtown House pursuant to a

High Court order.

G.D., having attended a variety of different institutions, was ultimately sent to St. Michael’s Remand and Assessment Centre by

order of the Dublin Metropolitan Children's Court on 22nd October 1998. He continued to reside in St. Michael’s under the order

of the High Court dated the 16th February, 1999 when he transferred to Oberstown Boys Centre. He remained there until 15th

July when he moved to Newtown House where he was in residence at the time of the High Court hearing.

Gary D. reached the age of sixteen in April 2000. After failing to attend a number of institutions where places had been found

for him, he was sent to St. Michael’s Remand and Assessment Centre by an order of the Dublin Metropolitan Children's Court on

22nd October 1998. He continued to reside there as a result of a High Court order until 16th February, 1999 when he

transferred to Oberstown Boys Centre. He remained there until 15th July when he moved to Newtown House where he was

residing at the time of the High Court hearing.

Glen D. was aged about thirteen years at the time of the High Court hearing. At that stage, he was enrolled in Scoil Eoin,

Crumlin, attending on a daily basis.

P.H. was aged sixteen years and two months at the time of the High Court hearing. On foot of court proceedings for non

attendance at school, he was remanded to St. Michael’s Remand and Assessment Unit and continued to reside there under

order of the Children's Court. That court having decided that he could not be remanded any further to St. Michael’s, an

application was made to the High Court and his detention in St. Michael’s continued by an order of the High Court. He was

subsequently transferred to a house in Churchtown, then to a house in Knocklyon with similar facilities and finally to St.

Augustine’s Special School, Blackrock, which he had stopped attending shortly before the High Court hearing.

B.J. was aged thirteen years at the time of the High Court hearing. He was described as being out of the control of his mother

for some time and was the subject of charges before the Dublin Metropolitan Children's Court. He was remanded to St. Michael’s

Remand and Assessment Unit in Finglas for a three week period ending on 27th September. He was recommended for a place in

St. Laurence’s, Finglas, but there was not a place immediately available there and he was again remanded to St. Michael’s from

the 8th October. On the 9th December the District Court struck out the charges against the applicant, who continued,

however, to be maintained overnight in St. Michael’s on a voluntary basis. On the 10th December, the High Court ordered him to

be placed in St. Michael’s until a place became available in St. Laurence’s, which happened on the 14th January 2000.

T.L. was aged sixteen years and three months at the time of the High Court hearing. After having attended a number of

institutions, she was the subject of an order pursuant to S.58(2) of the 1908 Act in March 1995 and on the 4th June 1997 was

placed in Oberstown Girls Centre pursuant to an order of the High Court. She was placed in Killinarden House on 15th December

1997. She had passed the Junior Certificate examination in June 1999 and, at the date of the High Court hearing, was residing in

An Grianan, Whitehall, with the approval of the High Court.

S.T. was aged thirteen years and two months at the time of the hearing in the High Court. His behaviour started to deteriorate

following the separation of his parents and he was enrolled in St. Peter’s Special School, Orwell Road in September 1997. His

behaviour continued to give rise to concern. At the time of the High Court hearing, he was residing in Tallaght in the care of

staff of the Eastern Health Board.

It should be noted that, while some at least of the minors had appeared in the District Court on criminal charges, in no case had

any conviction been recorded against any of them. However, because of the absence of available places in sufficiently secure

units with appropriate facilities for minors with behavioural problems of this nature, it will be seen that it was found necessary in

some cases to accommodate them in detention centres intended for the reception of children convicted of criminal charges, a

situation which has given rise to understandable concern.

It appears from the judgment of the High Court in the present case that at the time of the hearing the mandatory injunction

granted by the court in D.B. was being complied with by the Ministers. When the application of T.D. first came before the court,

Kelly J. was satisfied that the provision of appropriate accommodation for minors in the position of the applicants was now being

dealt with in an appropriate manner by the departments concerned. It was for that reason that he granted the comparatively

lengthy adjournments already referred to. However, on the renewed hearing he expressed his concern that the time frames

within which the units would be provided had not been adhered to in any case. While he accepted that this was due in some

instances to circumstances outside the control of the departments concerned, such as industrial disputes, planning objections,

unforeseen site difficulties etc., he said that he was also satisfied that this was not always so, instancing in particular delays in

the provision of a high support unit in Castleblayney. In that case, the time for completion had been extended from mid 2000 to

early 2002, because of delays in reaching agreement as to the price to be paid to the Department of Defence for the premises

(they had been formerly an army barracks.) The trial judge was extremely critical of the fact that during that period no attempt

had been made to present a planning application in respect of the proposed development.

As already noted, the evidence before the High Court in December 1999 and January 2000 was that the Ministers hoped that

the units in different parts of the country specified in the Appendix would be made available within the times indicated, but

were not prepared to give an undertaking that they would be so completed within the specified times to the court.

The High Court Judgment

In his judgment, the trial judge said that, on the basis of the evidence he had heard, he had come to the conclusion that the

Department of Health and Children had not proceeded in a manner which could reasonably be expected of it so as to address

what he described as “the quite scandalous situation which has now obtained for years.” While he acknowledged that

substantial progress had been made, he also said that none of the time scales given in evidence before the court in April 1999

or even December 1999 would now be met and that this had been the result on many occasions of “manifest inefficiency”. In

the light of those findings, he then proceeded to consider the submissions made by the parties as to whether the injunctive

relief sought should be granted.

While it had been argued that the injunction sought was not sufficiently specific, he said that he was satisfied that this was not

so: on the contrary, the injunction would do no more than spell out what the State had already agreed would be done and that,

in any event, if the Minister encountered difficulties beyond his control, he could always apply to the court with a view to

seeking a variation of the order.

The trial judge next considered a submission that the applicants lacked locus standi, since it had not been demonstrated that

any one of them would benefit directly from the granting of the relief sought. He said he was surprised to hear such a

submission, since, following the decision in F.M., the plans of which the court had been informed were put forward, not on a

piecemeal case by case basis, but rather by addressing the needs nationally. Having referred to the evidence of Mr. Ruairi

O’Cillin, a divisional inspector in the Department of Education and Science, with acknowledged experience in this area, he said

that it was clear from that evidence that the absence of the facilities now being sought did have an effect, in practical terms,

on the ability of the state agencies to meet the needs of the present applicants. Having said that the applicant’s interests had

been adversely affected by the failure to provide the appropriate facilities, the trial judge concluded that they had sufficient

locus standi to make the application.

The trial judge then dealt with the submission that the court had no jurisdiction to grant injunctions of the type sought because

to do so would be to trespass on the role of the executive in the determination of policy. Having referred to what he had said in

D.B. -v- The Minister for Justice, he reiterated his view that there was a jurisdiction vested in the court “to intervene in what

has been called policy in an appropriate case.” Such an intervention would, however, occur only in limited circumstances and

where it was absolutely necessary for the court to carry out its duties under the Constitution in securing, vindicating and

enforcing constitutional rights. He was also of the view, however, that no question arose in this case of the courts intervening

in a policy area, since the executive had already formulated a policy which, if carried into effect within the specified time scale,

would address in an adequate, albeit belated fashion, the rights of the applicants.

The trial judge went on to identify four factors which he considered should be taken into account in deciding whether or not to

grant the relief sought. The first was the fact that the High Court had already granted declaratory relief concerning the

obligations of the State in cases of this nature. Secondly, he had regard to the fact that, if the declaration was to be of any

benefit to the minors in whose favour it was made, the necessary steps consequent upon it would have to be taken

expeditiously. Thirdly, the effect of a failure to provide the appropriate facilities would have a profound effect on the lives of

children and put them at risk of harm. Fourthly, due regard was to be had to the efforts made on the part of the State to

address the difficulties to date. He said that, if the court were to conclude that all reasonable efforts had been made to deal

efficiently and effectively with the problem and that the State’s response was proportionate to the rights which fell to be

protected then normally no order of the type sought should be made. He summed up his conclusions as follows:

“Just as in the case of D.B. I have come to the conclusion that in the absence of an appropriate undertaking on the part

of the Minister the time has now come for this court to take the next step required of it under the Constitution so as to

ensure that the rights of troubled minors who require placement of the type envisaged are met.

“The order that I propose making will ensure that the Minister, who has already decided on the policy, lives up to his

word and carries it into effect. I am neither dictating nor entering into questions of policy but if the Court is to keep

faith with its own obligations under the Constitution and with the minors with whose welfare it is concerned the

injunction sought must be granted.

The effect of this injunction is that the proposed developments must be now completed within the time scale specified in

evidence in the latest hearing before me. If there is to be any change in this it will have to be the subject of an

application to the court on the part of the Minister for a variation of the injunction. There will have to be objectively

justifiable reasons present to warrant such variation being granted”.

Submissions of the Parties.

Mr. Paul O’Higgins S.C., on behalf of the appellants/respondents submitted that the case on their behalf as to locus standi was

that the applicants did not have the standing to seek the particular orders granted, whereby particular buildings were ordered

to be built at specified locations within prescribed time limits. There had been no evidence in the High Court as to the particular

needs of the applicants: in particular, it had not been demonstrated how the requirement that particular high security and high

support units should be provided would meet the particular needs of these applicants. It was further urged that even if the

court was entitled to conclude that the rights of the applicants had been infringed by the failure of the respondents to provide

the units now directed by the court to be provided, which was not accepted, that was a breach which could only be dealt with

by way of an award of damages. He said it was clear that, rather than addressing the specific needs of the applicants in these

proceedings, the judgment and order was seeking to ensure the existence of a series of units which would be available to any

children who may need them over the coming years. He cited in support the decisions of this court in King -v- A.G. [1981] IR.

233 and Madigan -v- A.G. [1986] ILRM 123 and of the High Court in Mhic Mhathuna -v- Attorney General [1989] IR. 504.

It was further submitted that, in effect, the learned trial judge was not examining the individual needs of individual applicants in

the course of the hearing, but rather the manner in which the relevant departments (and in particular the Department of Health

and Children) had formulated and implemented policy in relation to the provision of high security in high support units for children

at risk. He was accordingly concerning himself with policy matters of general application rather than issues which were

specifically referable or relevant to the needs of individual applicants. It was expressly acknowledged by counsel for the

applicants and the trial judge himself that the case of T.D. was being used as a vehicle for reviewing the progress generally in

relation to the provision of facilities. It was submitted that, in compelling the Minister to use his executive powers in such a way

as to implement a particular policy for the good, not of specific applicants but rather of children at risk generally, the court was

clearly entering into questions of policy. This was in violation of the separation of powers which confers the power to make

policy on the executive, the executive in turn being answerable to the Oireachtas.

It was further submitted that the right to formulate and implement policy must necessarily include a right to change that policy

and requiring the Minister to apply first to the court before implementing any change in that policy constituted a usurpation by

the judicial power of an executive power.

It was further submitted that it was of importance for the executive to be in a position to change its policy: the evidence

before the court indicated that the development of high support places, together with other individualised arrangements for

children, would reduce the requirement for high security accommodation for such children. He cited in support the decisions of

this court in District Judge McMenamin -v- Ireland [1996] 3 IR. 100, Feeney -v- Minister for Finance [1986] ILRM 164/166 and

Riordan -v- An Taoiseach and Others [Supreme Court] U/R; 21st July 2000.

It was further submitted that the effect of the order under appeal was to require specific expenditure by the executive on the

construction of the units in question and that this was an attempt to direct the manner in which the central fund is to be

administered. It was urged that this was also a breach of the doctrine of the separation of powers, citing in support Mhic

Mhathuna -v- Attorney General and the judgment of the High Court in O’Reilly -v- Limerick Corporation [1989] ILRM 181.

It was further submitted that the order under appeal, being mandatory in nature, should only have been granted if the

applicants had demonstrated a very strong probability upon the facts that grave damage would accrue to him in the future if

the order were not granted, citing Redland Bricks Limited -v- Morris [1970] AC 652. Nor should an injunction be granted if it

would inflict damage on the defendant out of all proportion to the relief to which the plaintiff was entitled, citing Sharpe -v-

Harrison [1922] 1 CH 502.

It was also submitted that a court should not normally grant a mandatory injunction if it was likely to involve the court in

constant superintendence of the work to be done, as was held in Ryan -v- Mutual Tontine Association [1893] 1 CH 116. It was

also urged that, while the court had indicated that it would consider allowing variations to the order in respect of what it

described as “non-culpable” departures from the time scale involved, there was no indication as to what might constitute such

a “non-culpable” departure. It was submitted that the appellants, who as state entities would be concerned not to be in

contempt of a High Court order, might find themselves applying on an almost weekly basis because of delays threatening the

ability of the appellants to complete the buildings within the time frame provided.

It was also submitted that the trial judge was not entitled to take into account, as he clearly did, the possible obligations of the

State towards other children at risk. As to the concern of the trial judge that the failure to provide the appropriate facilities

would have a profound effect on the lives of children and put them at risk, it was submitted that there was no indication that

this was a factor of any specific relevance to the making of the order so far as the individual applicants were concerned.

It was also submitted that, while the trial judge said that he had had regard to the efforts made on the part of the State to

address the difficulties to date, it was clear that he had not given sufficient weight to what had in fact been done. The

unchallenged evidence was that capital funding of IR£4.6 million had been committed in respect of the seven Health Boards

(excluding the Eastern Health Board) together with a revenue allocation of £5.3 million committed over that period also. In

addition £30 million of revenue funding would be made available to support the further development of child care services in the

year 2000 which would allow not only for the development of special residential care services but also for the further

development of a range of alternative services such as family support, early intervention and fostering services. Of that sum, £3

million had been specifically earmarked to allow the Health Boards to ensure that they were in a position to carry out their

duties under the Children's Bill when it was enacted. In addition, the evidence of Mr. O’ Cillin indicated that £165.8 million was to

be allocated for the further development of youth services.

It was submitted that the evidence established that, since the F.M. case, new units had been opened at Newtown House,

Killenarden House, Gleannalainn, Mullingar and Kilkenny. In addition, although the court treated the provision of the premises at

Ballydowd and Portrane as examples of full compliance with a court order, the evidence in fact established that it had not been

possible, despite the existence of the order, to comply with it fully: in particular difficulties were experiences in obtaining the

numbers of staff required for a premises such as Ballydowd. No distinction, moreover, was drawn in the order between those the

premises at Castleblayney, where the court considered that there had been “culpable delay” and other premises where there

was no indication that the delay was culpable.

On behalf of the respondents, Mr. Gerard Durcan SC., submitted that, insofar as the arguments of the appellants as to locus

standi were grounded on the claim that the relief sought did not address the specific problems of individual applicants, they

were misconceived. Such arguments were relevant, not to the issue of locus standi as such, but to the appropriateness of the

relief claimed. It was not disputed that the applicants had a bona fide interest or concern in seeking adequate and suitable

facilities and services and accordingly they met the test laid down by this court in Society for the Protection of the Unborn

Child (Ireland) Limited -v- Coogan [1989] IR. 734. It was, in those circumstances, not relevant that the order made by the trial

judge would not benefit the particular applicants, if that were the fact.

As to the submission that there was no evidence tendered on behalf of the applicants as to their particular circumstances or

needs, it was submitted that this disregarded the fact that each of the applicants had appeared in the High Court on a number

of occasions before the learned trial judge who would have had the benefit of many reports in regard to their circumstances:

the situation of each applicant was well known and had been dealt with by the court on a number of occasions. It was further

submitted that it was clear from the evidence of Mr. O’Cillin that he would expect all of the applicants to benefit from the

facilities in respect of which the injunction was being sought. It was submitted that there was ample evidence on which the

trial judge could have arrived at the conclusion that each of the applicants had sufficient locus standi and that, accordingly,

that finding should not be set aside.

As to the argument that the granting of the order constituted a violation of the doctrine of the separation of powers enshrined

in the Constitution, he submitted that the courts not only had a right, but an obligation, to supervise or interfere with the

exercise by the Government of its executive functions if the Government was acting otherwise then in accordance with the

provision of the Constitution. He cited in support the observations of Fitzgerald C.J., in Boland -v- An Taoiseach [1974] IR. 338,

of Finlay C.J., in Crotty -v- An Taoiseach [1987] IR. 713 and of Hamilton C.J., in McKenna -v- An Taoiseach (2) [1995] 2I.R. 10.

Mr. Durcan further submitted that, since it was accepted by the appellants that the High Court had extensive powers to ensure

the protection of constitutional rights as laid down by this court in the State (Quinn) -v- Ryan, the issue raised in these

proceedings was as to how the court should have used those powers to ensure the upholding of constitutional rights. That

required a consideration of the nature of the constitutional right in question, the nature of the failure to vindicate that right and

of how best such a breach could be remedied. He submitted that an analysis conducted in that manner could only lead in the

present case to a conclusion that damages would not be an appropriate remedy: where, as here, the right was positive in

nature, i.e., a right to have provided adequate services and facilities catering for the special needs of the applicants. He cited

in support of that proposition the decision of the United States Supreme Court in Brown -v- Board of Education [347] US. 483

and Brown -v- Board of Education (2) 349 US. 294, where the court remanded the issue of the full implementation of the

constitutional principles to local district courts. That case demonstrated, as did the decisions in Boland and McKenna (2) that,

while the primary obligation to uphold the constitutional right of the claimant might rest on a particular body - in this case the

executive - circumstances could arise where the court was obliged to intervene, not simply by interfering with the actions of

the body, but also by supervising those actions.

He further submitted that this was not a question of the court making policy in violation of the separation of powers, but rather

of ensuring that a policy was adopted and implemented which would remedy the breach of the Constitution. In this case, the

legitimate concern of the High Court was to ensure that the rights of the applicants were vindicated with suitable expedition:

within that framework, it remained for the State to determine how best to satisfy those constitutional rights.

As to the submission that the court had no jurisdiction to grant a mandatory injunction of this nature, he submitted, that while

this might be so in an ordinary lis inter partes, different considerations arose where the court was being asked to ensure the

proper protection of constitutional rights. Nor was it a case in which, as the defendants claimed, the court had failed properly

to balance the interests of the parties in a proportionate manner: the damage suffered by the applicants in the present case as

a result of the absence of the facilities was real and substantial and, given that the appellants themselves had framed the

programme which the order of the court required them to implement within the specified time, it could not be said that it

imposed a disproportionate burden on them. As to the objection that compliance with the injunction would require constant

supervision by the court, he submitted that this alleged difficulty was overstated: the obligations imposed on the applicants by

the order were clear and specific and in accordance with their own programme and there should be no need for any supervision

of their compliance. The fact that they would have to come to court if they proposed to depart from the time scale prescribed

by the court meant that they were in no different position from any other party who was the subject of an injunction and who

sought to have its terms varied.

Mr. Durcan submitted that the appellants were, in effect, saying that the courts were precluded from granting mandatory

injunctions so as to ensure that the other organs of government carried out their constitutional duties. If that were the law, it

would mean that the courts would be powerless to ensure the upholding of the Constitution. In fact, he urged, the courts had

on more than one occasion recognised that circumstances could arise in which the courts would grant mandatory relief as

against the other organs of government, citing Byrne -v- Ireland [1971] IR. 241. In the present case, the only way in which the

applicants’ rights could be upheld was by the granting of such a mandatory injunction.

The Constitutional Rights of the Applicants.

The right claimed on behalf of each of the applicants can be defined as

“a right to be placed and maintained in secure residential accommodation so as to ensure, so far as practicable, his or

her appropriate religious and moral, intellectual, physical and social education”

No such right is expressly recognised by the Constitution and, to the extent that it exists, it must be as one of the

unenumerated personal rights guaranteed under Article 40.3.1º of the Constitution in accordance with the construction of that

article adopted by the High Court and this court in Ryan -v- The Attorney General [1965] IR.294.

Article 42.1 of the Constitution provides that

“The State acknowledges that the primary and natural educator of the child is the family and guarantees to respect the

inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual,

physical and social education of their children.”

Article 42.5 provides that

“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the

State, as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but

always with due regard for the natural and imprescriptible rights of the child.”

In G. -v- An Bord Uchtala, O’Higgins C.J., referred to the rights of children as folows:

“The child also has natural rights. Normally, these would be safe under the care and protection of its mother. 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 (and others which I have

not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the

provisions of Article 40.5 of the Constitution, is given the duty, as guardian of the common good, to provide for a child

born into a family where the parents fail in their duty towards that child for physical or moral reasons.”

It was also made clear by Finlay C.J., giving the judgment of this court in In Re: The Adoption (2) Bill 1987, that Article 42.5

was not to be confined, in its reference to the duty of parents towards their children, to the duty of providing education for

them. He said:

“In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate

means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental

duty to educate but also the parental duty to cater for the other personal rights of the child.”

In F.M. -v- The Minister for Education and Others, Geoghegan J expressed the view that the right claimed on behalf of the

applicant in that case - broadly similar to the right asserted on behalf of the applicants in the present case - was one of the

unenumerated rights of children which parents were obliged to protect and uphold and that their failure to do so rendered that

case an exceptional case within the meaning of Article 42.5 in which the State was obliged to uphold and protect the right.

In the judgments which they deliver this morning, Hardiman J reserves the question as to whether this case was correctly

decided and Murphy J expresses the view that it was wrong in law and should not now be followed. The correctness of the

decision, however, was not challenged on behalf of the appellants in the present case or indeed in any of the previous cases to

which they were parties.

Geoghegan J arrived at his conclusion in FM -v- Minister for Education, at least in part, in the light of the passage I have

already cited from the judgment of O’Higgins CJ in G -v- An Bord Uchtala. In his judgment, Murphy J points out that the

proposition there laid down by the learned Chief Justice was not expressly assented to by a majority of the court. It is also

clear that the passage in question is an application to the particular case of children of the doctrine of unenumerated rights

first laid down by the High Court and endorsed by this court in Ryan -v- Attorney General.

The implications of that doctrine have not at this stage been fully explored by the courts. Two questions, in particular, merit

further consideration. The first is as to the criteria by which the unenumerated rights are to be identified. In the High Court in

that case, Kenny J said that there were many personal rights of the citizen which flow from “the Christian and democratic

nature of the State” which are not mentioned in Article 40. There was no explicit endorsement of that view in this court,

perhaps because the right under discussion in that case was conceded on behalf of the Attorney General to be such an

unenumerated right. Whether the formulation adopted by Kenny J is an altogether satisfactory guide to the identification of

such rights is at least debatable. Secondly, there was no discussion in the judgment of this court as to whether the duty of

declaring the unenumerated rights, assuming them to exist, should be the function of the courts rather than the Oireachtas.

In my judgment in I O’T -v- B [1998] 2 IR 321, I said that:

“...Save where such an unenumerated right has been unequivocally established by precedent, as for example in the case

of the right to travel and the right of privacy, some degree of judicial restraint is called for in identifying new rights of

this nature. (See, in this context, the remarks of McCarthy J writing extrajudicially in “Observations on the Protection of

Fundamental Rights in the Irish Constitution”, Constitutional Adjudication in European Community and National Law,

(Dublin, 1992) at pp. 179 - 182 and of G.W. Hogan in “Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990 -

1992) Irish Jurist NS 95).”

For the reasons there set out and in the light of the considerations so forcefully urged by Murphy J in his judgment in this case,

I would have the gravest doubts as to whether the courts at any stage should assume the function of declaring what are today

frequently described as “socio-economic rights” to be unenumerated rights guaranteed by Article 40. In my view, however, the

resolution of that question must await a case in which it is fully argued.

For the purposes of this case, it is sufficient to say that, assuming that the passage from the judgment of O’Higgins CJ in G -v-

An Bord Uchtala correctly states the law, Geoghegan J was clearly correct in holding that the right claimed on behalf of the

applicant in that case was one of the unenumerated rights of children which parents were obliged to protect and uphold.

It should, however, be pointed out that the right thus identified, and which I have endeavoured to formulate with as much

precision as possible, is one which arises from the special position of children. They are dependent in their childhood for the

nurture, care and education, which is essential for their physical, intellectual and emotional growth, on their parents. In the

great majority of cases, those needs are met by the parents, making use, obviously, in modern conditions of the great range of

educational facilities now provided by the State, directly or indirectly. It is clear that the applicants in these and similar cases,

because of behavioural problems deriving from various causes, require special treatment in secure units and, in the result, they

clearly constitute exceptional cases in which the State is under a duty to ensure that that their right to such treatment is

upheld.

Locus Standi

The law in general requires that a person, who seeks to challenge the validity of laws passed by the Oireachtas or actions or

omissions of the executive, demonstrates that a particular right which he/she enjoys is threatened or endangered by the

alleged invalidity: he/she cannot rely on the fact, if it be the fact, that the invalidity will have that effect on the rights of

others, although not on his/hers. (See the decisions of this court in Cahill -v- Sutton, King -v- Attorney General, Madigan -v-

Attorney General and Mhic Mhathuna -v- Attorney General.) That general principle, however, must on occasions yield to the

overriding necessity that laws passed by the Oireachtas or acts and omissions of the executive should not go unchallenged,

simply because it is difficult, if not impossible, for individual citizens or groups to establish that their individual rights are

affected. Thus, in cases where legislation affected all the citizens in the same manner, as in the case of the electoral laws

challenged in O’Donovan -v- Attorney General, the State’s becoming a party to the European Single Act in Crotty -v- An

Taoiseach or the expenditure of money for an allegedly unlawful purpose by the Oireachtas and executive during a referendum

campaign (McKenna (No. 2) -v- An Taoiseach), the courts have afforded locus standi to persons whose bona fide concerns

were not in doubt but who could not demonstrate that their individual rights or interests were particularly affected.

In the present case, it is clear that, having regard to their respective ages, some of the applicants will derive no conceivable

benefit from the order granted by the High Court. Indeed, since all of them are in the catchment area of the Eastern Health

Board and the units to be provided on foot of the order are, without exception, situated outside that area, it is difficult to see

what benefit will accrue to any of them from the provision of these units. While it may be that a general improvement in the

provision of facilities on a national basis would ensure that the facilities available in the Eastern Health Board area were not

being used to meet any deficiencies in other areas and that, in that indirect manner, children in need of facilities, including the

applicants, might derive some benefit from their provision, the fact remains that, as the evidence clearly demonstrated, the

damage was already done in the case of the applicants by the undoubted failure of the State to deal adequately with this

problem in the past.

However, I am satisfied that the submission advanced on behalf of the applicants that these considerations are relevant to the

form of relief to which the applicants might be entitled rather than to their locus standi or lack of it is well founded. They have

undoubtedly been affected by the failure on the part of the state agencies to meet their particular needs and that, of itself,

would appear to me to afford them locus standi in these proceedings. I do not think that their position can be equated to that

of the plaintiffs in Cahill -v- Sutton, King, Madigan and Mhic Mhathuna. In each of those cases, the plaintiffs were held to be

precluded from questioning the constitutional validity of parts of the legislation under consideration which did not in any way

affect their personal circumstances. In this case, the applicants are all persons who were held by the High Court to have been

entitled to the provision of appropriate facilities which were in fact not provided to them and from which they would have

benefited and it is clear from the evidence that that was a finding which the trial judge was entitled to make.

It may be that in some of the cases the granting of the relief sought would not in any way redress the breach of their rights

which has already taken place and, in other cases, would at best have a peripheral effect only so far as they were concerned.

But, as persons affected by the failure of the Ministers to uphold their constitutional rights, I am satisfied that they have

sufficient locus standi to raise the more general issue of public importance as to the nature of the remedy available in such

cases.

The Separation of Powers.

In Buckley -v- Attorney General [1948] IR. 3, O’Byrne J, speaking for the former Supreme Court, said that,

“The manifest object of [Article 6 of the Constitution] was to recognise and ordain, that, in this State, all powers of

Government should be exercised in accordance with the well recognised principle of the distribution of powers between

the legislative, executive and judicial organs of the State and to require that these powers should not be exercised

otherwise. The subsequent articles are designed to carry into effect this distribution of powers.”

In Boland -v- An Taoiseach, Griffin J, referred to Article 6 and other articles and said that

“In my view, these articles demonstrate that the Oireachtas, and the Oireachtas alone, can exercise the legislative

power of the Government; that the Government, and the Government alone, can exercise the executive power of

Government; and that the judicial power of Government can be exercised only by judges duly appointed under the

Constitution in courts established by law under the Constitution.....”

Article 28.2 provides that

“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the

authority of the Government.”

The Ministers in the present case, in determining that particular resources should be allocated to the building and staffing of the

units which are now the subject of the order, were beyond argument exercising the executive power of the State on behalf of

the Government as a whole. The monies required to provide and staff the units can only be made available to the Ministers by

Dail Eireann under the appropriation machinery prescribed under Article 17.2 and then only on the recommendation of the

Government.

If it was established in any proceedings that the Government had acted in a manner which is in contravention of the

Constitution, then the exclusive role afforded to them in the exercise of the executive power of the State would not prevent

the courts from intervening with a view to securing compliance by the Government with the requirements of the Constitution. It

is, however, not in dispute that the orders made by the trial judge in this case and in the earlier case of D.B. are without

precedent in that they not merely find the executive to have been in breach of their constitutional duties: they also require the

executive power of the State to be implemented in a specific manner by the expenditure of money on defined objects within

particular time limits. No precedent has been cited for so far reaching an assumption by the courts of what is, prima facie at

least, the exclusive role of the executive and the legislature.

It is noteworthy that in F.M. -v- The Minister for Education and Others, Geoghegan J not merely afforded no relief of that

nature: he also refrained from granting any declaration that the respondents had failed to protect and vindicate the applicants’

constitutional rights until the State had been given an opportunity to make suitable arrangements for the accommodation of the

applicant. It would appear from the judgment of Kelly J in D.B. that such declarations have been granted in other cases, but

that was the first instance of an order having been granted by the High Court directing a Minister to ensure the provision of

particular facilities within a specified time.

In a case of D.D. -v- The Eastern Health Board and Others, (U/R; Judgment delivered 3rd May, 1995) Costello J ordered the

Board to care for and accommodate the applicant until further order in a unit or institution managed by it and to arrange for the

provision of suitable education and therapeutic care for him, either in that unit or elsewhere. While mandatory injunctive relief of

that nature is undoubtedly unusual, it was apparent from the judgment that the parties were agreed that the court had

jurisdiction to make whatever order it considered appropriate in the interests of the applicant. The judgment cannot, in my

view, be regarded as authority for the proposition that the court was entitled to make the order which it did in the present

case.

In Sinnott -v- The Minister for Education and Others (U/R; Judgments delivered the 12th July 2001) this court set aside an

order of the High Court which prescribed in detail the nature of the primary education and training which the plaintiff in that

case was to receive. Since, in that case, a majority of the court held that the plaintiff was not entitled as a matter of

constitutional right to the particular education and training - beyond the age of 18 - which was at issue in that case, it was not

found necessary by them to determine whether an order in that form was consistent with the distribution of powers between

the different arms of government under the Constitution. In my dissenting judgment in that case, however, I expressed the

view that it was not so consistent and I agreed with the detailed analysis carried out by Hardiman J in his judgment of the

issue. In particular, the following passage from his judgment in that case is worth recalling:-

“.... the constitutionally mandated separation of powers is a vital constituent of the sovereign independent republican

and democratic State envisaged by the Constitution. It is not a mere administrative arrangement: it is itself a high

constitutional value. It exists to prevent the accumulation of excessive power in any one of the organs of Government

or its members, and to allow each to check and balance the others. It is an essential part of the democratic procedures

of the State, not inferior in importance to any article of the Constitution.”

Both the High Court and this court have stressed on more than one occasion that, where the Oireachtas or the executive are

found, whether by act or omission, to have acted in a manner which violates the Constitution, they are entitled to expect that

the other responsible arms of Government will take such steps as are necessary to redress the wrongs in question. Thus, in

McMenemin -v- Ireland this court found that, due to changing circumstances, the operation of certain statutory provisions had

led to an unjust and inequitable result where the pension entitlements of a district judge were concerned. The court, however,

set aside the finding in the High Court that the plaintiff was entitled to a declaration to that effect. In the course of his

judgment Hamilton C.J., said

“This situation requires to be remedied by the Oireachtas in accordance with the provisions of Article 35 and 36 of the

Constitution because the present situation has led to an unjust and inequitable result whereby the applicant has suffered

loss, whether by way of excessive reduction in his pension or the payment of an inadequate lump sum by way of

gratuity.

“The manner in which this situation is remedied is a matter for the Oireachtas and it is not open to this court to

interfere with the manner in which this situation is dealt with by the Oireachtas unless the Oireachtas fails to have

regard to its constitutional obligations in this regard and this court must assume at this stage that the Oireachtas will

have regard to such obligations.

“I do not propose to make a declaration giving effect to my views because, having regard to the respect which the

separate organs of Government, the legislature, the Government and the judiciary have traditionally shown to each

other, I am satisfied that once the Government is made aware of the situation with regard to this constitutional

injustice, it will take the necessary steps to have the matter remedied in accordance with law and in accordance with

its constitutional obligations.”

In the present case, of course, it is clear that, following the decision in F.M., the executive unhappily did not take the

necessary steps to remedy the constitutional injustice which that decision had found to exist. Accordingly, it was

understandable that, in subsequent cases, the High Court should have found it necessary to take the further step of granting a

declaration that the executive were in breach of their constitutional duty to applicants in specific cases. The issue in this case

is as to whether the court was also entitled to make an order specifying in detail the manner in which they were to carry out

their functions so as to remedy the breach.

I am satisfied that the granting of an order of this nature is inconsistent with the distribution of powers between the legislative,

executive and judicial arms of Government mandated by the Constitution. It follows that, as a matter of principle, it should not

have been granted by the trial judge, however much one may sympathise with his obvious concern and exasperation at the

manner in which this problem had been addressed at the legislative and executive level. It is of fundamental importance that

each of the organs of Government should not only carry out the duties imposed on it by the Constitution but should recognise,

as Finlay C.J., pointed out in Crotty, that the Constitution also defines the boundaries within which they are confined in

carrying out their functions.

The difficulty created by the order of the High Court in this case is not simply that it offends in principle against the doctrine of

the separation of powers, though I have no doubt that it does. It also involves the High Court in effectively determining the

policy which the executive are to follow in dealing with a particular social problem. This difficulty is not met by the contention

advanced on behalf of the applicants that the Ministers are being asked to do no more than carry into effect a programme

prepared by them and which they assert it is their intention to implement. The evidence in this case establishes clearly that, in

what is unarguably an extremely difficult area, approaches which at one time seemed appropriate may have to be reconsidered:

in particular, officials are naturally concerned with how equivalent problems are being dealt with in other countries. There is no

reason in principle why the executive should not adopt a flexible and open minded approach to the problems of children with

special needs while at the same time ensuring that their constitutional right to have those needs met is respected. The making

of the High Court order in this form, as the judgment of the trial judge emphasises, will make it necessary for the Minister to

return to the High Court to obtain its sanction to any change in policy which necessitates a departure from the precise terms of

the order. It cannot be right that the executive power of the Government can only be exercised in a particular manner, even

though so to do would not contravene any person’s constitutional rights, without the sanction of the High Court.

This, it should be emphasised, is not a case in which it is contended on behalf of the State that the facilities in question cannot

be provided by them because the resources are not available to the State. As Costello J, as he then was, pointed out in O’Reilly

-v- Limerick Corporation [1989] ILRM 181, it is not the function of the courts to make an assessment of the validity of the

many competing claims on national resources: as he said, in exercising that function, the court would not be administering

justice in the normal sense but would be engaged in an entirely different exercise, i.e., an adjudication on the fairness or

otherwise of the manner in which other organs of State had administered public resources. In this case, the State acknowledge

that the resources are available, but take issue with what they say is the assumption by the courts of the role of the executive

in determining how best the resources, admittably available, should be applied in achieving the agreed result, i.e., the

vindication of the children's constitutional rights. I find the conclusion inescapable that, since the High Court first began the

difficult task of grappling with this problem, a Rubicon has been crossed, clearly from the best of motives, in which it is moving

to undertake a role which is conferred by the Constitution on the other organs of State, who are also entrusted with the

resources necessary to discharge that role in the interests of the common good.

Conclusion.

I would allow the appeal and discharge the injunction granted by the High Court.

__________________

APPENDIX

(a) Two six bedded high support units with ancillary educational facilities at Castleblaney in the County of Monaghan on or

before the 31st December 2001

(b) A five bed high support unit at Moyhill in the County of Clare on or before the 31st July 2000

(c) A five bed high support unit at Elm House in the County of Limerick on or before the 31st October 2000

(d) A five bed high support unit in the functional area of the Mid Western Health Board on or before the 31st July 2001

(e) A five bed high support unit in the County of Clare on or before the 31st July 2001

(f) A five bed Special Care Unit for boys in the Mid Western Health Board region on or before the 31st December 2001

(g) An additional high support place in the Waterford region on or before the 31st May 2000

(h) An additional high support place in the functional area of the South Eastern Health Board on or before the 31st May

2000

(i) An additional two Special Care Units for girls in the Gleann Alainn unit in County Cork on or before the 31st July 2000

(j) A five bed high support unit for boys in the Southern Health Board region on or before the 31st August 2001