Court of Appeal dismisses appeal against Child and Family Agency's refusal to grant special care intervention. The court affirms the High Court's decision that the Agency acted within its statutory powers. The decision upholds the Committee's independent judgment on the child's care needs.

COURT OF APPEAL

CIVIL

[approved]

[No Further Redaction Needed]

[2025 JR No. 373]

[2025 No. 161]

The President Neutral Citation Number [2025] IECA 189

Whelan J

Allen J

JT (A MINOR SUING BY HIS FATHER AND NEXT FRIEND GG)

APPLICANT/APPELLANT

AND

CHILD AND FAMILY AGENCY

RESPONDENT

JUDGMENT of Ms. Justice Costello delivered on the 19th day of September, 2025

Introduction

1. These proceedings concern the issue of the care of a child, now 16 years of age, and in particular, whether the Child and Family Agency (“the Agency”) erred in law when the Special Care Referrals Committee (“the Committee”) of the Agency concluded, on 10th March 2025, that the child did not meet the criteria for special care intervention, as provided for by s. 23 of the Child Care Act 1991, as amended (hereinafter “the Act”).

2. The child’s father – on behalf of the child – instituted judicial review proceedings, seeking to quash the decision of 10th March 2025 and sought various declarations, including “a declaration that [the Agency] is in breach of its statutory duties to appropriately and safely place the subject child, as a child in its statutory care pursuant to its obligations under s. 36 of the Act.” Originally, he sought an order of mandamus compelling the Agency to apply for a special care order for the child without any further delay, though that relief was dropped prior to the hearing before the High Court. No point was taken as to the form of what was in substance a judicial review application by the father.

3. The proceedings were heard on 22nd May 2025 by O’Regan J. In her judgment, delivered on 29th May 2025 ([2025] IEHC 316), she refused the reliefs sought. The order was perfected on 16th June 2025 and the applicant appealed on 20th June 2025. The appeal was heard on 31st July 2025, and this is my judgment in respect of the appeal.

The Relevant Legal Framework

4. The Child Care Act 1991 provides that the Agency shall “promote the welfare of children who are not receiving adequate care and protection”. As was observed by Whelan J., speaking for this Court, in Child and Family Agency v M.L. [2019] IECA 109, at para. 9: “The legislative scheme establishes overarching duties of child protection and s.4 imposes on the CFA a duty to take ‘into its care’ any child who ‘requires care or protection’ which he (or she) is unlikely to receive unless ‘that child is taken into care’.”

5. The provision of special care orders is governed by Part IVA of the Act. This became operative following the passage of the thirty first amendment of the Constitution enshrined in Article 42A on 28 April 2015. Thus, Part IVA reflects the Oireachtas intent to give effect, in part, to the provisions of Article 42A (see M.L., para. 9).

6. Definitions applicable to Part IVA are set out in s. 23A. They include:- “‘Care requirements’ means the care a child requires having regard to his or her behaviour. ... ‘special care’ shall be construed in accordance with section 23C.”

7. Section 23C provides as follows: “In this Part ‘special care’ means the provision, to a child, of—

(a) care which addresses—

(i) his or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare, and

(ii) his or her care requirements,

and includes medical and psychiatric assessment, examination and treatment, and

(b) educational supervision,

in a special care unit in which the child is detained and requires for its provision a special care order or an interim special care order directing the Child and Family Agency to detain the child in a special care unit, which the Child and Family Agency considers appropriate for the child, for the purpose of such provision and may, during the period for which the special care order or interim special care order has effect, include the release of the child from the special care unit—

(i) in accordance with section 23NF, and

(ii) where the release is required for the purposes of section 23D or 23E, in accordance with section 23NG.”

8. Special care thus involves the detention of a child in a special care unit, and this can only occur on foot of an order of the High Court made pursuant to section 23H. Prior to the Agency making an application to the High Court for a special care order (or interim special care order) the steps set out in s. 23F of the Act must be followed. Section 23F(1) provides: “The Child and Family Agency shall not apply for a special care order in respect of a child unless it is satisfied that the child has attained the age of 11 years and it has made a determination, in accordance with this section, that the child requires special care.”

9. The Agency is constrained in its entitlement to apply for a special care order in respect of a child. Firstly, the child must be 11 years of age or older. Secondly, the Agency is prohibited from applying for a special care order unless it has made a determination in accordance with s. 23F that the child requires special care. The balance of the section sets out the steps to be followed by the Agency before it can make a determination in accordance with the section.

10. Section 23F(2)(a) first requires the Agency to assess the behaviour of the child. It provides:

“Where—

(a) the Child and Family Agency is satisfied that there is reasonable cause to believe that the behaviour of the child poses a real and substantial risk of harm to his or her life, health, safety, development or welfare, …” The Agency must satisfy itself regarding the behaviour of the child, and it must do so to the level that there is “reasonable cause to believe”, that the behaviour of the child poses “a real and substantial risk of harm to his or her life, health, safety, development or welfare”.

11. If the Agency is so satisfied, it then moves on to paragraph (b), which provides:

“Where…

(b) having regard to that behaviour and risk of harm, the Child and Family Agency has assessed the care requirements of the child, and is satisfied that there is reasonable cause to believe that—

(i) the provision, or the continuation of the provision, by the Child and Family Agency to the child of care, other than special care, and

(ii) treatment and mental health services, under, and within the meaning of, the Mental Health Act 2001, will not adequately address that behaviour and risk of harm and those care requirements, …”

12. The Agency is required to assess the care requirements of the child, having regard to the behaviour and risk of harm identified in paragraph (a) of the particular child. The same statutory formula (that it is satisfied that there is reasonable cause to believe) applies to the assessment under paragraph (b). Under this paragraph, the Agency must be satisfied that there is reasonable cause to believe that the provision to the child of care, other than special care, will not adequately address that behaviour and risk of harm and those care requirements. It is a negative assessment. It is made by reference to the behaviour, risk of harm and care requirements identified in paragraphs (a) and (b) in respect of the individual child at the time of the assessment. The Agency must be positively satisfied that there is reasonable cause to believe that the provision to the child of care, other than special care, will not adequately address the indicated behaviour, risk of harm and care requirements. In appropriate circumstances, the Agency must also consider the possibility of treatment and mental health services under the Mental Health Act 2001, though, as that has no relevance to the facts in this case, I shall not consider it further in this judgment.

13. Only once the Agency has reached that negative assessment – that no lesser form of care will adequately address the child’s needs – does it proceed to paragraph (c) of section 23F(2). This provides:

“Where…

(c) having regard to paragraph (b), the Child and Family Agency is satisfied that there is reasonable cause to believe that the child requires special care to adequately address—

(i) that behaviour and risk of harm, and

(ii) those care requirements,

which it cannot provide to the child unless the High Court makes a special care order in respect of that child, the Child and Family Agency shall make arrangements to carry out the consultation referred to in subsection (3).”

14. This paragraph underscores the requirement for the Agency to be satisfied that there is reasonable cause to believe that the child requires special care to adequately address the issues identified, which the Agency cannot provide to the child unless the High Court makes a special care order in respect of the child. In other words, it must be satisfied that it cannot otherwise provide care to the child which will adequately address the identified behaviour, risk of harm and the child’s care requirements.

15. Subsections (3) and (4) set out the process for consulting (or not consulting) with the child and other interested (or potentially interested) parties. It is commonly referred to as the statutory consultation. It is a mandatory step which is triggered by “the proposal to provide special care to the child” referred to in subsection (2). Sections (5) and (6) are the provisions governing the holding of a family welfare conference. This step too is mandatory. Subsection

(6) permits the Agency not to convene a family welfare conference where there is reasonable cause to believe that it is not in the best interests of the child. It is only once these steps have taken place that s. 23F(7) applies.

16. Section 23F(7) provides:

“(7) Where a family welfare conference—

(a) has been convened in accordance with subsection (5) and the Child and Family Agency has had regard to the recommendations, if any, notified under section 12 of the Act of 2001, or

(b) has not been convened in accordance with subsection (6),

and the Child and Family Agency is satisfied that there is reasonable cause to believe that the child requires special care it shall make a determination as to whether the child requires special care.”

17. At this stage in the process, after there has been consultation (or a decision not to hold consultations), and after there has been a family welfare conference (or a decision that it is not in the best interests of the child to convene a family welfare conference), the Agency is required to have to have “regard” to the recommendations, if any, notified to it, under s. 12 of the Act of 2001. It must then be satisfied that there is reasonable cause to believe that the child “requires” special care. In those circumstances, the Agency “shall make a determination as to whether the child requires special care”. Only if the Agency is satisfied that there is reasonable cause to believe that the child requires special care, may it make a determination to that effect.

18. Once it has done so, subsection (8) applies as follows: “Where the Child and Family Agency determines that there is reasonable cause to believe that for the purposes of protecting the life, health, safety, development or welfare of the child, the child requires special care the Child and Family Agency shall apply to the High Court for a special care order.” It is the determination under subsection (7) that triggers the mandatory obligation to apply to the High Court for a special care order.

Constitutional Provisions

19. The relevant constitutional provisions are Articles 42A and 40.3. Article 42A.1 states: “1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.” As was observed by Hogan J. in M McD v Child and Family Agency [2024] IESC 6, at para. 35, Article 42A.4.1 places “the best interests of the child” as the paramount consideration. It reads: “Provision shall be made by law that in the resolution of all proceedings— i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.” In addition, children, too, as citizens, benefit from the provisions of Article 40.3 of the Constitution as follows: “1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

20. At the heart of this case is the balancing of two potentially competing rights of the child: the vindication of the child’s right to life and his personal rights, on the one hand, and his right not to be deprived of his liberty, save in accordance with law on the other. The resolution of this conflict is to be informed by the consideration of the best interests of the child.

Special Care Referrals Committee

21. In practice, the decision referred to in s. 23F(7), is made by a senior officer of the Agency, typically, the Service Director, National Residential Care. The officer is advised by the Special Care Referrals Committee. The Committee is comprised of senior officers of the Agency and an independent chair who is a professionally qualified social worker. All members of the Committee, including the chair, are expert in areas of childcare and special care. In respect of any given child, a local social work team, with expertise in childcare and social work, and knowledge of the child in question, will make a referral to the Committee that the child should be considered for special care. They will do so when the social work team is of the opinion that the child requires special care.

22. The Committee typically sits once a fortnight and considers a number of referrals from various social work teams across the country. The role of the Committee is to consider whether a given child meets the criteria set out in s. 23F of the Act, and to advise the senior officer of the Agency accordingly. If the Committee decides that a child does meet the criteria under s. 23F of the Act, the Committee will refer its decision to the Service Director, National Residential Care, of the Agency, who then decides whether to make the determination or not. If the Committee decides otherwise, then the matter is not referred to the Service Director and no determination is made. The Committee comes to a decision in respect of each referral based on the information provided by the social work team itself. It makes its own assessment as to whether the test in the Act is made out. The possibility that the Committee will arrive at a view different to that of the social work team is an intrinsic part of the process and reflects the differing roles of the Committee and the social work team.

23. The Committee is an expert body with significant expertise in the areas of childcare and special care. It was accepted by MacGrath J. in C.K. v Child and Family Agency [2019] IEHC 635, at para. 60, that the Committee consists of persons who have been appointed because of experience and skill not possessed by the court and that “due regard” ought to be had for the role delegated to the Agency under the Act and to the specialist role played by the Committee in arriving at its decision.

The Facts

24. The Agency accepts the description of the child’s personal circumstances and his involvement with criminality pleaded in the statement of grounds. The child was then a 15- year-old boy, who is now 16. The child leads a chaotic lifestyle. He engages criminal and high-risk behaviour. The details are set out at para. 10 of the statement of grounds as follows:

• The applicant is engaged in drug use.

• The applicant is engaged in drug dealing from his home and in the community.

• The applicant is vulnerable due to his young age.

• The applicant’s mother is a chronic drug user.

• The applicant was involved in a high-speed Garda pursuit travelling down the wrong side of the motor way. The vehicle flipped and there was a serious risk of injury or death.

• The applicant is involved in a gang involved in high level criminality.

• The applicant has been taught how to hot-wire cars.

• The applicant has not (sic) insight into the risks involved in his membership of a violent drug dealing gang.

• The applicant is residing with an elderly great grandmother who cannot care for his needs.

• His great grandmother reneging on agreed conditions regarding [the child] living in her house, including who else is allowed to stay there.

• The applicant’s mother is also in the great grandmother’s house on occasion.

• The applicant has no family member [who] is in a position to give him the care and attention that he requires.

• The applicant is being groomed by a violent gang in Tallaght.

• The applicant is known to be in the company of adult drug addicts.

• The applicant has been stopped twice recently, with a known criminal in his mid 40s.

• The applicant was recently arrested in a stolen vehicle.

• The applicant is a flight risk, frequently out at night with his whereabouts unknown.

• After numerous Garda intervention he continues to offend.

• He has a high number of charges before the Courts, including serious offences such as burglary.

• He has been charged with 14 additional offences since his last referral to the Committee in October 2024.

• In a highly unusual intervention, the social work team have attended Court for the applicant.

• The applicant is refusing to engage with support services.

• The applicant is not cooperating with the probation services.

• [Agency] is unable to secure any residential placement for him due to his behaviour.

• The applicant is not attending school or any educational programme.”

25. The child’s behaviour had given increasing cause for concern to the social work team working with the child and his family for about two years prior to the institution of these proceedings. As a result, the Agency has provided a range of therapeutic interventions for the child and his family to address the child’s behavioural issues:

(i) The Agency’s family therapy service within the Agency’s Assessment Consultation Therapy Service (“ACTS”) has been made available to support to the child and his parents, but the child has not engaged with this service.

(ii) The child has refused to engage with a variety of educational services offered to him.

(iii) In May 2024 the social work team made what came to be a first referral to the Committee for the provision of special care for the child, and on 20th May 2024, the Committee concluded that the child did not meet the criteria for special care intervention and recommended that the child be provided with a residential placement. A referral was made to the Agency’s residential services regarding a mainstream residential unit for the child, but no appropriate placement has been identified for the child.

(iv) The child is not in the care of the Agency, whether pursuant to a court order or a voluntary care arrangement.

26. The child’s social work team made a second referral for special care to the Committee in October 2024. This was considered by the Committee on 26th November 2024. The minutes of the meeting record that the Committee contacted the relevant department of the Agency and were advised that the social work team “have been unable to secure a residential placement for [the child] as a result of his behaviour. He has been on the priority list on and off. [He] would require a single occupancy placement.” The minutes record that the Committee discussion points were:

• “Not subject to a care order.

• Judge recommended the referral be made.

• Parents not consulted about the referral, they were informed in court.

• Very criminalised behaviour.

• High number of criminal charges.

• 15 years old.

• Has not been offered a bed in Residential Care.

• Needs an appropriate response to his criminal behaviour.

• Very unusual that the SWD attended court for a young person not subject to a care order.

• He has not cooperated with probation.

• Special Care is a big jump for a young person who has never had a residential placement.

• Mother is a chronic drug addict all of [child’s] life, would not be positive for her to move into the Great Grandmothers home where [the child] is currently residing.

• Need to try a robust residential placement to try managing his behaviour prior to making a referral to Special Care.

• Less restrictive interventions need to be exhausted in the community, Special Care is a method of last resort.

• Case is not listed on the Tusla Child Protection Notification System.” The minutes record that the Committee considered the child’s care requirements under s. 23F(2)(b) of the 1991 Act. They continue: “The Committee agreed all community options have not yet been exhausted the committee were of the opinion a community based support package should be identified including an appropriate residential placement for this young person.” On that basis, the Committee concluded that the child did not meet the criterial for special care intervention.

27. The child’s father, acting as the child’s next friend, instituted judicial review proceedings on 14th February 2025, seeking to quash the decision of the Committee of 26th November 2024. On 4th March 2025, by consent, an order of certiorari was granted, quashing that decision, and the Agency agreed to remit the application for a fresh decision.

28. On 4th March 2025, the Agency considered the referral in respect of the child. The referral documentation included all relevant information up to February 2025.

The Special Care Referral Form

29. The third special care referral form in respect of the child was dated 25th February 2025. It sets out the updated detail and comprehensive position in relation to the child. It records that there have been six family welfare conferences since 12th April 2024 in respect of the child and records that there was statutory consultation with the parents of the child. Section 5 of the form is headed “Criteria for Special Care Intervention”. It records that the social work team has assessed the child as being at extremely significant risk of harm to his life, safety, development and wellbeing because: “[The child] has been and continues to be exposed to negative influences which is

(sic) putting his life as (sic) risk of significant harm and death. [The child] has been in the care of his mother who is struggling with drug addiction and her home was being access (sic) by serious known criminals who have now involved [the child] in their drug dealing and [the child] has witnessed and been exposed to persons being assaulted and killed. [The child] has not got any relationship with a protective or positive adult in his life and is being blocked to access (sic) services to help him by known criminals. [The child] is not able to access education, health services, nor therapeutic services being made available to him due to being monitored and influenced by known criminals. [The child] has been taught to hotwire and drive cars and has been caught doing such things and driving extremely dangerously on behalf of these individuals and could harm someone else or could kill himself.”

30. The form notes that the mother herself is struggling with addiction to drugs and is unable to care for the child. The father is unable to care for the child as his relationship with his son has entirely broken down. While the child has been living with his maternal great grandmother, she is 81 years of age, with limited mobility, and is unable to provide the necessary structure to ensure that the child attends school, medical appointments or engages with therapeutic services provided by the Agency. The social work team are concerned that she does not accept the seriousness and the dangers of the life the child is living and the need for the child to be heavily monitored and engaged with. The child has been before the District Court in respect of a number of criminal charges and has failed to engage in any way with the bail conditions since January 2025. He has failed to engage with the Probation Services and the probation order has been re-entered in court due to the child’s non-engagement with the conditions laid out in the probation order.

31. As regards the care options available for the child, the referral notes: “[T]here are serious safety concerns regarding seeking general or private residential care placements due to [the child’s] abilities to hot wire cars and drive and there is a worry that trying to place [the child] in general residential units would lead to [the child] absconding and going missing or ‘underground’ and back to the criminal gangs he is heavily involved with and Tusla would lose [the child] to the criminal world and he could be harmed or killed. General residentials would not be equipped to remand [the child] to avoid this situation happening.”

32. The form specifically addresses the provision of care, other than special care, to the child. It discusses and rejects as unlikely to adequately address the child’s behaviour and risk of harm, living with his father, his mother or his great grandmother. Given the nature of the dispute in these proceedings, it is appropriate to quote in full the section dealing with the possibility of receiving the child into care and providing him with a “general placement”. The section reads: “In terms of Tusla applying for Interim Care Order in relation to [the child] the following worries are held; [the child] would not pass a risk assessment in relation to impact on other young people in a residential unit. [The child] is skilled at stealing and hot-wiring cars and residential staff would not be able to physically stop [the child] from leaving a unit and stealing a car and driving back to the Tallaght area. There is a concern that if Tusla attempt to place [the child] in a general placement (be it foster care or a residential unit) [the child] would leave and return to the gang he is attached to and go ‘underground’ and be missing to Tusla as we are aware these persons leading [the child] are living out of several homes. Also, another child who absconded from care was located in [the child’s] home recently and [the child’s] mother did not contact Gardaí to advise of this young person being in her home. If this happened and [the child] absconded, we would highly likely lose sight of [the child] and would not know what he is doing, who he is with or if he is harmed or killed, given all he is currently involved with.

In terms of risk, we are also unsure what sort of Drug Debts [the mother] has or if [the child] has debts that he owes, and this could be a very dangerous situation should [the child] be admitted to foster care or general/private residential services not only for [the child] but for foster carer’s (sic) or the other residents and staff.”

33. Later in the same section of the form, the social work team set out their assessment as follows: “It is the Social Work Team’s assessment that no alternative residential or foster placement can successfully reduce the risk of harm to [the child] at present. The Social Work Team have assessed that no alternative care provider within mainstream residential service will adequately be able to reduce the risk for [the child] at this time and/or be able to provide safe care to [the child]. NPT referral made 9 months ago, and no placement identified that would need (sic) his level of need. The Social Work Team, alongside other professionals and family have assessed that [the child] requires an immediate period of intervention within a secure environment to ensure his immediate safety and protection. On the 5th April 2024, Judge Toale of the Children’s Court also recommended that Tusla give due consideration to a Special Care Order due to the level for (sic) risk outlined. On the 20th May 2024 the Special Care Committee advised SW Team that [the child] did not meet the criteria for Special Care and recommended that [the child] be referred for a Residential Placement. This was completed and [the child] has not been offered any placement to date.” The assessment notes that serious concerns for the child remain and that he has received multiple more charges in relation to incidents in October 2024. The essence of the concern is that the child is not engaging in any way with the supports and services available to him, and that “there is no current way to engage [the child] with positive services in the community”.

34. Under the heading “Risk Management and Therapeutic Rationale for Special Care Intervention”, the form states that “all other options has (sic) been exhausted and special care is now the only care option that is able to support [the child] to be in a safe environment where he can start to commence the work required to unpack the trauma of his life to date”. The form notes that the Extern Janus Programme was closed in September 2024 due to the child’s non-engagement; that the child has failed to comply with or engage with the Probation Services in line with his bail conditions; that he has refused to engage with two further alternative education settings; and that it has not been possible to have meetings and home visits by social workers “[d]ue to the persons [the child] is involved with no matter how many meetings are convened or scheduled or adapted to facilitate [the child] and his mother . . . it is not working . . . [t]herefore, no consistent or stabile (sic) period of working with [the child] has been achieved by any service to date”.

35. The referral form then concludes, under the heading “Therapeutic Rationale for Special Care Intervention”, as follows: “[The child] requires a period of short-term stability and intervention within a secure settling (sic) to support him to break the cycle of risk-taking behaviour that he is currently in that is placing his life at serious risk. [The child] has no safety, structure, routine or boundaries within his home environment. This is the immediate need for [the child] at this time to be in a place of safety, where he can have his basic needs met, to ensure he has food, sleep and is removed from his home where he is involved in drug dealing, being monitored by known criminals and potentially using drugs. The Social Work Assessment is that [the child] requires a secure setting to support him to work on seeing the value and importance of education, to support him to reengage with school and re-learn the more positive side of life and life-skills away from a life of crime. [The child] needs a period of short-term stabilisation and to be able to avail of skilled staff who could work with him on the risk behaviours and the reason for his making these choices in order to support him to change the direction his life is currently going. Unfortunately, we feel that attempting to put services around [the child] within the community at this time is not achievable and [the child] needs to be removed from his home and this environment and these people and his mother in order for Services to actually access [the child] to engage therapeutically with him.”

36. In section 14 of the form, “Other Information”, the author records that in May 2024, she submitted a referral to Residential Services regarding a mainstream residential unit for the child, and that no appropriate placement has been identified to date. The section continues: “This Social Work Team are strongly of the opinion that given [the child’s] inability to engage with support services, including Probation, to date, there will remain no change for [the child], his physical safety and emotional wellbeing nor his future. [The child] is being controlled and monitored by dangerous criminal individuals and cannot break free from them to engage within the community and this remains the same no matter where [the child] would be placed if he was to be offered a Mainstream Residential Setting. All Professionals are advocating that [the child] requires a period of stability [in] Special Care without access to the community and criminal world and for him to be inaccessible to those surrounding him at present.”

The Impugned Decision 10th March 2025

37. The decision of the Committee was in the form of a letter addressed to Ms. Victoria Weldon Barr, the social worker who submitted the Special Care Referral Form in respect of the child. The letter confirms that the Committee considered the form and supporting documentation and the guidelines for referrals to special care. It itemises the documentation considered:

• Social Work Report

• Birth Certificate

• Minutes of Family Welfare Conferences dated 02.05.25, 25.02.25, 12.04.24, 18.12.24, 06.06.24 and 11.09.24

• Consultation Form

• Probation Report dated 24.02.25

• Email from Garda Mark Faul 24.02.25

• List of Charges

• List of Convictions

• Signed Regional Chief Officer Form

• Risk Prioritization Report”

38. The letter set out the child’s presenting issues, including that he had gained 14 additional charges since the last referral and that he was unable to secure a residential placement. The letter said that the Committee reviewed the circumstances of the child, having recourse to the documents and the opportunity to speak with the social work department.

39. Under the heading “Criteria for entry to Special Care”, the letter first recalled that s. 23F(1) sets out that the Agency shall not apply for special care unless the legislative criteria set out in s. 23F(2) is met. It accepts that the criterion in paragraph (a) is met.

40. The letter continues:

“The Committee also considered his care requirements under Section 23F(2)(b) of the 1991 Act.

[Paragraphs (b) and (c) are then set out]

The Committee notes that the child is engaging in risk taking behaviour in the community. A significant amount of the child’s risk taking behaviours relate to criminality. The Committee notes that the child gained 14 additional criminal charges since the last referral. The child is before the Children’s Court and was ordered to engage with probation services, but he is refusing to attend. While there is not a specific mention of therapeutic rationale in the legislation, case law has been clear that a therapeutic rationale is required. The Committee are not satisfied that the provision of other care would not adequately address the child’s behaviour and risk of harm and his care requirements. The Committee note that there are other care options which have not been exhausted. Special care is a deprivation of liberty and there are other options yet to be explored. The conclusion of the National Special Care Referrals Committee is that the case of [the child] does not meet the criteria for a Special Care Intervention.”

The Proceedings

41. As stated above, the child’s father commenced these proceedings on his behalf, acting as his next friend. The statement required to ground the application for judicial review was filed on 19th March 2025, and that afternoon, the High Court (Bolger J.) gave leave to seek judicial review in respect of eight of the nine reliefs set out in the statement of grounds and ex parte docket. The notice of motion issued the following day.

42. The primary relief sought was an order of certiorari quashing the decision of the Agency on 10th March 2025 that the child did not meet the criteria for special care within the meaning of Part IVA of the Act. While initially, an order of mandamus compelling the Agency to apply for a special care order for the child without any further delay and various declarations were sought, these reliefs were not pursued at the hearing in the High Court.

43. The Committee’s letter of 10th March 2025 was addressed to the senior social worker who had submitted the referral form and was copied to the social workers involved in the referral to the Committee. Solicitors acting for the child’s father sought a copy of the decision which was furnished to them sometime between 11th and 14th March 2025. The proceedings were drafted without sight of the referral form and supporting documentation, which the solicitors first requested on 11th March 2025. The request was repeated on 14th March 2025 and the Agency’s solicitor replied on the same day, indicating that he was requesting the additional documentation. At 7.26 a.m. on 18th March 2025, he reiterated that he was “working on getting instruction re the additional documents required” and said he would revert “immediately”. Later, at 11.14 a.m., he indicated that he would revert “today” in relation to the previous request for documents. On 19th March 2025, at 12.37 p.m., solicitors for the applicant requested the documents to be furnished “forthwith” and the Agency’s solicitors replied that he was expected to have same “shortly” and then that he would want to go through them “to take out any 3rd party personal data”.

44. In the meantime, the application was moved for leave to seek judicial review in the High Court. The referral form and supporting documentation were furnished when the Agency’s notice of opposition and grounding affidavit were provided on 4th April 2024.

45. As the solicitors for the applicant did not have the referral form and supporting documentation before the proceedings were commenced, the focus of the case evolved. This is recorded in the judgment of the High Court, where the trial judge notes that in light of the information provided in the opposition papers the focus of oral submissions of the applicant was confined to reasons and irrationality. Whether this was permissible is part of the appeal.

The judgment of the High Court

46. The High Court judgment summarised the referral form at paras. 5 to 8 of the judgment. At paras. 9 to 13, the trial judge sets out the requirements of s. 23F of the Act, and the fact that insofar as care, other than special care is concerned, s. 23F(2)(b) “requires [the Agency] to be satisfied that there was reasonable cause to believe that such care (other than special care) will not adequately addressing (sic) the behaviour or risk of harm to the child”. O’Regan J. identifies the essence of the impugned decision as being that “the committee are not satisfied that the provision of other care would not adequately address the child’s behaviour and risk of harm and his care requirements. The committee noted that there are other care options which have not been exhausted. Special care is a deprivation of liberty and there are other options yet to be explored”.

47. At paras. 15 to 20, the trial judge sets out the submissions of the parties and her responses to those submissions. At paras. 15 and 16, she addressed points which were not pursued on appeal and so are of no relevance to this judgment. Paragraphs 17 and 18 identified the core of the issues which were advanced on appeal. She states: “17. The applicant argues that other care options were not identified within the

decision and therefore the decision is unreasoned. It was further argued that the

decision was irrational in its conclusion that a special care order was not required as there was no material before the committee to support such a

conclusion.

18. The applicant further argues that all other care options were explored and rejected as suitable.” (sic)

48. The High Court considered three relevant authorities. The first was G.H. v Tusla Child and Family Agency [2025] IEHC 263, where the High Court considered the obligation to give reasons and noted - referencing para. 66 of his judgment, that O’Higgins J had concluded: “that jurisprudence identified that any person affected by a decision was entitled to know at least in general terms why it was made and any person affected by the

decision was entitled to have enough information to consider whether they could or should avail of any appeal or bring judicial review of the decision. It was noted that such an approach “may vary greatly from case to case and the type of reasons that will be necessary” (para. 21 of O’Regan J.’s judgment). At para. 22 of her judgment, O’Regan J. noted that in Child and Family Agency v M.L. & Ors [2019] IECA 109, Whelan J. indicated that following the decision of the European Court of Human Rights in D.G. v Ireland [2002] 35 E.H.R.R. 1153, “it is generally accepted that the rationale of any detention order must be educational and therapeutic with no punitive element in order to vindicate the convention rights of a minor”. The trial judge noted that this Court had held that a special care order is very much intended to be a measure of short duration and of last resort.

49. Finally, the trial judge considered the decision of C.K., where the Court expressed the view that the special care procedure is to be used as a last resort when all other forms of care would not adequately address the risk posed by the behaviour in issue; that due regard had to be had for the role which has been delegated to the Agency under the provisions of the Act, particularly its function under s. 23 and the specialised role played by the Committee in arriving at its decision; that the Court accepted that care should be taken by the court to refrain from adopting an unduly narrow and restrictive interpretation or review of the

decision; and that the task of the Committee is much broader than simply deciding whether the relevant risk existed. The trial judge noted that at para. 74 in C.K., the High Court noted that a “special care order should not be granted merely to prevent a child from harming himself or herself or of engaging in criminality”.

50. The High Court then set out the conclusions at paras. 24 and 25 of the judgment:

“24. It appears to me given that: -

A) special care is an option of last resort,

B) under the provisions of s.23F care other than special care must be considered to be inadequate to address the behaviour and risk of harm and care requirements of a particular minor prior to determining special care is required given that special care is an option of last resort. C) having regard to the fact that the social work team did identify other possible care arrangements and the basis why the social work team discounted various other care arrangements as identified above, D) given that the committee is an expert body, the committee’s finding that there are other care options not fully exhausted is both reasonable and rational and the view that the committee was not satisfied that the provision of other care would not adequately address the applicant's behaviour and risk of harm and care requirements is a valid view within the competence of the committee and not irrational.

25. In the circumstances the reasons for the committee coming to the conclusion that it was not satisfied that the provision of other care would not adequately address the applicant's behaviour, risk of harm and care requirements have not been exhausted is not irrational as there was material before the committee from which it could reach such conclusions. Furthermore, the content of the referral document aforesaid is such that it identifies the reasons why the committee was not satisfied other care options have not been exhausted to enable it to reach the

conclusion that the applicant did not meet the criteria for special care intervention.”

The Grounds of Appeal

51. The first argument which the appellant makes is that the decision of the Committee fails to give any, or any adequate reasons for its conclusion that the child does not meet the criteria for special care intervention. The proceedings have been brought on behalf of the child and the child is a person affected by the decision of the Committee. Therefore - it is said

– the decision maker is required to give reasons which the applicant, as a person affected by that decision, can understand (see Connelly v An Bord Pleanála [2021] 2 I.R. 752). It is submitted that, contrary to the finding of the High Court, the reasons for the decision cannot be found in the referral form, as the referral form actually recommends that the child be placed in special care and thus – it is said – supports the contrary conclusion. It is contended that it is necessary to know what the “other care options” are in order to form a view as to whether those other care options would, in fact, “adequately address” the behaviour of the child, the risk of harm and his care requirements. It is submitted that without this basic information, the impugned decision is not sufficiently reasoned. The argument is neatly captured by para. 24 of the written submissions which states: “Simply put, the Impugned Decision is not sufficiently reasoned because it fails to identify the ‘other care options’ which the Committee concluded had not been exhausted and, by extension, were available to [the child] and would adequately address the behaviour concerned. Further, the conclusion of the learned High Court Judge that the reasons for this finding were to be found in the Referral Form is simply not borne out by a review of that form.”

52. The second argument is that the decision is irrational, in that it is not supported by any evidence and is contrary to the evidence which was before the Committee. The argument is linked to the failure to give reasons as “it is impossible to engage with rationality if you do not have sufficient information as to the basis for the decision”. By way of example, the appellant argues that had the decision stated that the Committee was of the view that a residential placement was an alternative care option which had not been exhausted and which would adequately address the behaviour concerned, the appellant could have engaged with the rationality of that view, but because the Committee did not identify the other care options, the rationality of the conclusion that they had not been exhausted cannot, according to the appellant, be properly tested. The submission is that the impugned decision fails to identify what evidence the Committee relied upon to reach the opposite conclusion to the social work team. It is contended that there was no evidence before the Committee that contradicted the assessment of the social work team that “no alternative care provider within mainstream residential service will adequately be able to reduce the risk for [the child] at this time and/or be able to provide safe care to [the child].” Neither, it is said, was there any evidence before the Committee to contradict the assessment of the social work team that “no alternative residential or foster placement can successfully reduce the risk of harm to [the child] at present”. If, it is said, the Committee formed a contrary view it was incumbent upon the Committee to explain the basis upon which they reached such a contrary view and the material upon which they relied in that regard. It was submitted that there is no such explanation in the impugned decision.

53. The appellant argues that the High Court erred in concluding that the referral form “identifies the reasons why the committee was not satisfied other care options have not been exhausted to enable it to reach the conclusion that the applicant did not meet the criteria for a special care intervention” firstly, because the High Court judgment does not identify where these reasons are to be found in the referral form, and, secondly, because there is an “absurdity” to the conclusion that the reasons for a decision that the child does not meet the criteria for special care can be found in a referral form which is making the opposite case: namely, that the child does meet the criteria for special care. Furthermore, the conclusion of the High Court that the reasons for this finding can be found in the referral form is, according to the appellant, “simply not borne out by a review of that form”.

54. With regard to the High Court’s failure to find that the decision was irrational, the appellant’s submission is that the material before the Committee, from which, according to the High Court, it could reach the conclusion that the other care options had not been exhausted, was based upon the same material relied upon by the social work team to demonstrate that there was reasonable cause to believe that the provision by the Agency to the child of care, other than special care, will not adequately address that behaviour and risk of harm and those care requirements. As with the impugned decision, the High Court judgment, according to the appellant, fails to identify what evidence the Committee relied upon to reach the opposite conclusion to the social work team. On that basis, it is submitted that the conclusion of the High Court that the impugned decision was not irrational “as there was material before the committee from which it could reach such conclusions” does not withstand scrutiny.

Discussion

Scope of the permissible arguments

55. On the appeal, objection was taken to the arguments advanced by the appellant that they had not been properly pleaded in the statement of grounds and therefore leave had not been given to pursue these grounds. However, it is absolutely clear that the case which ran before the High Court was focused on the adequacy of the reasons for the decision and the rationality of the decision, and no objection, apparently, was taken to the shift in the focus of the case. Some latitude requires to be given as the referral form was not available to the appellant until opposition papers were filed on 4th April 2025. It is true that an application could have been made to amend the grounds of appeal to challenge the validity of the

decision on the reasons actually argued and this was not done. However, given that the matter was actually argued on that basis, apparently without objection, thus this point must be taken to have been waived by the Agency which, de facto, acquiesced in the case evolving in the manner described.

56. Furthermore, the appeal is from the decision of the High Court. That decision was based on the adequacy of reasons and the rationality of the decision. It would make a mockery of the appeal if the appellant were to be precluded from appealing in respect of the

decision on these points on the grounds that they had not been pleaded in the statement of grounds and had not been the subject of the order granting leave to seek judicial review. I am satisfied that the appeal must relate to the judgment of the High Court, which addressed these issues, and therefore I would reject the argument that the appellant is precluded from raising these issues on the appeal.

The Obligation to Give Reasons

57. The jurisprudence on the obligation of a decision maker to give reasons for the

decision was not debated in any detail at the oral hearing of the appeal. In written submissions, the appellant relied upon the decision of the Supreme Court in Connelly v An Bord Pleanála [2018] 2 I.L.R.M. 453; [2018] IESC 31. In that case, Clarke C.J. commences his analysis by cautioning that it is “very difficult” to be specific about the manner in which the obligation to give reasons must apply in different types of situations. At para. 5.2, he observes that “the legal requirements which go into different types of decisions may, themselves, vary very significantly from case to case”. At para. 5.3, he observes that “other decisions involve much broader considerations involving general concepts, and often, to a greater or lesser extent, a degree of judgment or margin of appreciation on the part of the

decision maker”. He emphasises that: “The point is that the type of reasons which may be necessary will depend, amongst other things, on the type of decision which is being made and the legal requirements which must be met in order for a sustainable decision of that type to be reached.”

58. Clarke C.J. then considered the criteria by reference to which a court should assess whether the reasons given are adequate in any particular case. He reviewed the judgments in Mallak v Minister for Justice, Equality & Law Reform [2012] IESC 59; Meadows v Minister for Justice [2010] 2 I.R. 701; Rawson v Minister for Defence [2012] IESC 26; EMI Records (Ireland) Ltd v The Data Protection Commissioner [2013] IESC 34; and Oates v Browne [2016] IESC 7. At paras. 6.15 and 6.16 he identified two requirements as follows: “6.15 Therefore, it seems to me that it is possible to identify two separate but closely related requirements regarding the adequacy of any reasons given by a

decision maker. First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision. Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to allow a court hearing an appeal from or reviewing a decision to actually engage properly in such an appeal or review.

6.16 However, in identifying this general approach, it must be emphasised that its application will vary greatly from case to case as a result of the various criteria identified earlier which might distinguish one decision, or decision making process, from another.”

59. He then reviewed where the reasons are to be found. He quoted with approval the observations of Fennelly J. in Mallak that it is not a matter of complying with a formal rule and that the underlying objective is the attainment of fairness in the process and that there may be situations where the reasons for the decision “are obvious and that effective judicial review is not precluded”. At paras. 7.5 and 7.6, he held: “Therefore, it is possible that the reasons for a decision may be derived in a variety of ways, either from a range of documents or from the context of the decision, or in some other fashion. However, as is clear from the above analysis, this is always subject to the requirement that the reasons must actually be ascertainable and capable of being determined. …

7.6 . . . The range of persons who are able to challenge a particular decision will vary from case to case, as will the extent of their involvement in the process. Thus, as a consequence of the above analysis, the requirement that reasons given for a

decision must be adequate necessitates that, where the reasons are not included in the text of the decision itself, they must be capable of being readily determined by any person affected by the decision. Clearly, the ability of a person who was not involved in the process, but who is nonetheless entitled to challenge the decision, to identify the reasons for a decision, where those reasons are to be derived from a diffuse range of sources, will differ greatly from the ability of a person who was involved in the process to do so.”

60. At para. 9.2, the former Chief Justice emphasised the proper approach to the question of where the reasons for the decision are to be found. He observed: “9.2 … Any materials can be relied on as being a source for relevant reasons subject to the important caveat that it must be reasonably clear to any interested party that the materials sought to be relied on actually provide the reasons which led to the

decision concerned. …

The reasons may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning.” At para. 9.6, he made this important observation: “9.6 . . . it would be preferable in all cases if the Board made expressly clear whether it accepts all of the findings of an Inspector or, if not so doing, where and in what respect it differs. It may be possible, in certain circumstances, to reach a significantly clear inference as to what the Board thought in that regard but it would be better if the matter were put beyond inference and were expressly stated.”

61. He concluded on this topic by observing that: “10.14 The law on reasons does not require that one agrees with the reasons given. In a challenge based on allegedly inadequate reasoning, the law only entitles an interested party to know what the reasons were. …

10.15 . . . the law does not require a level of reasoning which goes beyond that required to afford an interested party reasonable information as to why the

Decision was made and whether it can be challenged.”

62. In the context of assessing the decision at issue in these proceedings, it is worth noting the observation of MacGrath J. in C.K.. At para. 76, he held:

“… I accept that the decisions of the Committee should not be construed or interpreted as if thought they are akin to formal court judgments or tribunal determinations, but they are, nevertheless, determinations which have consequences for the manner in which matters proceed thereafter, consequences in respect of the future care proposals for the child and potential consequences for his or her constitutional rights.” In the succeeding paragraph, he noted that the court “should afford great latitude in the reading and interpretation of the decision of the Committee and the reasons expressed for its decisions”. He concluded that it was not appropriate for “the court to imply into the decision of the Committee reasons which are not only unexpressed, but contrary to, or inconsistent with, the clearly expressed reasons for its decisions”.

63. In light of this jurisprudence, it is necessary to consider the decision in this case. Ms. Liz Oakes, the chairperson of the Committee, swore an affidavit on 4th April 2024. She says that the Committee considered: “[T]he following to be the main issues: i. There was no therapeutic benefit for the Applicant in Special Care. It is important to point out that Special Care is a therapeutic input involving Orders of detention. It is a placement to keep a child safe. ii. The Committee was not satisfied that the provision of order [recte. other] care would not adequately address the Applicant’s behaviour and risk of harm and his care requirements.”

64. The minutes of the meeting of 4th March 2025, at which the decision was taken, were not adduced in evidence. The decision is recorded in the letter of 10th March. As has been set out above at para. 37, the letter sets out the documentation considered which comprised the entire special care referral form and supporting documentation. The letter identified the young person’s presenting issues, as set out in the updated referral form, which included issues such as being blocked to access services to help him by known criminals, nonengagement in education and the inability to secure a residential placement. The letter records that the Committee had the opportunity to speak with the social work department but does not specify the detail of that discussion.

65. The balance of the letter is headed “Criteria for Entry into Special Care”. It is accepted that the Committee was satisfied that there was reasonable cause to believe that the behaviour of the child posed a real and substantial risk of harm to his life, health, safety, development or welfare, as set out in s. 23F(2)(a) of the Act. The letter states that the Committee also considered his care requirements under s. 23F(2)(b) of the Act. Paragraphs

(b) and (c) are set out verbatim, and this is then followed by the decision itself. For ease of reference, it may be useful to reproduce it here once more: “The Committee notes that the child is engaging in risk taking behaviour in the community. A significant amount of the child’s risk-taking behaviours relate to criminality. The Committee notes that the child gained 14 additional criminal charges since the last referral. The Child is before the Children’s Court and was ordered to engage with probation services, but he is refusing to attend. While there is not a specific mention of therapeutic rationale in the legislation, case law has been clear that a therapeutic rationale is required. The Committee are not satisfied that the provision of other care would not adequately address the child’s behaviour and risk of harm and his care requirements. The Committee note that there are other care options which have not been exhausted. Special care is a deprivation of liberty and there are other options yet to be explored.

The conclusion of the National Special Care Referrals Committee is that the case of JT does not meet the criteria for a Special Care Intervention.”

66. The affidavit of Ms. Oakes is perhaps clearer than the letter addressed to Ms. Weldon Barr and copied to the other four social workers involved in the child’s case. She expressly says in her affidavit that the Committee considered there to be no therapeutic benefit to the child in special care. The appellant says that this is not a reason given in the letter of 10th March 2025.

67. It is true that the sentence in the letter relating to therapeutic rationale does not lead to a second sentence expressly stating that there is no therapeutic benefit to the child in special care, such as is set out in the affidavit. However, as was pointed out in C.K., in the reading and interpretation of the decision of the Committee and the reasons expressed for its decisions, the court should afford great latitude to the Committee. Its decisions should not be construed or interpreted as though they are akin to formal court judgments or tribunal determinations. Furthermore, while – as, at para. 9.6, Clarke C.J. observed in Connelly – it would be preferable if the decision maker made expressly clear where and in what respect it differs from, in this case, the referring social workers’ views, nonetheless, it may be possible “to reach a significantly clear inference” as to what the decision maker thought. In other words, the failure to expressly state a conclusion which may be clearly inferred, would not be fatal to the decision.

68. In my judgement, it is difficult to read the sentence as having any point in the decision at all if the conclusion that there is no therapeutic benefit to the child in special care is not to be inferred. I see no reason why the Committee would note that a therapeutic rationale is required if it accepted the views of the referral social work team that there is a therapeutic rationale to special care for the child, but that it, nonetheless, decided that the statutory criteria are not met in his case. The letter is addressed to the social work team, and in my view, they undoubtedly would understand this part of the letter to mean that, notwithstanding their view that there was a therapeutic rationale for a special care order, the Committee did not agree.

69. The question, then, is whether this applies to the appellant, who is the person affected by the decision. In this regard, it is to be borne in mind that the child’s father brought judicial review on behalf of the child in February 2025 in respect of the decision of the Committee of 26th November 2024 and had a copy of the minutes of that meeting, which recorded the Committee’s assessment and decision on that second referral in respect of the child. This third referral arose as a result of the quashing of that November 2024 decision and the Agency’s agreement to reconsider the matter. The assessment of the Committee in November 2024 made clear that special care “is a big jump for a young person who has never had a residential placement” and: “Need to try a robust residential placement to try managing his behaviour prior to making a referral to Special Care. Less restrictive interventions need to be exhausted in the community, Special Care is a method of last resort.” These observations were made, even though it was noted that up to then, the child had been unable to secure a residential placement. In considering the child’s care requirements under s. 23F(2)(b) of the Act, “the Committee agreed all community options have not yet been exhausted, the committee were of the opinion a community based support package should be identified including an appropriate residential placement for this young person”.

70. There was no evidence before the Committee – or, indeed, the court – of any further efforts to establish a community-based support package and an appropriate residential placement for the child. The facts in that regard had not changed by the time the Committee met on 4th March 2025, save insofar there still appeared to be no residential placement available.

71. As is clear from Connelly, it is permissible to have regard to this earlier minute when considering the reasons for the decision of 10th March 2025. Special care involves the civil detention of the child and is a method of last resort. As a matter of law, civil detention is only lawful if it includes a significant element of therapeutic care and/or educational care (see D.G. v Eastern Health Board [1997] 3 I.R. 511; CFA v M.L. [2019] IECA 109). In my view, as was observed by Clarke C.J. in Connelly at para. 9.2, the test is whether it is “sufficiently clear to a reasonable observer carrying out a reasonable enquiry” that the matters contended actually formed part of the reasoning. This is an objective test, not a subjective test. In my view, a reasonable observer, reading the letter of 10th March 2025 in the context of the referral to which it was addressed, as well as the second referral and the decision of 26th November 2024 and the absence of any placement for the child being attempted in the interim, would conclude that the absence of any therapeutic rationale for special care formed part of the reasoning of the Committee in reaching its decision in this case, as it did in its earlier decision.

72. The second reason the Committee gives for concluding that the case of the child does not meet the criteria for a special care intervention is that it is not satisfied that the provision of other care would not adequately address the child’s behaviour and risk of harm and his care requirements. If the Committee is not so satisfied, then it is precluded by the provisions of s. 23F(1) from determining that the child requires special care and from applying to the High Court for a special care order under section 23H. The Committee explains that the reason it is not so satisfied is because there are other care options which have not been exhausted, or other options yet to be explored.

73. The reader of the letter, including the appellant, knows the reason for the decision of the Committee. The reader does not need to know the details of the other options in order to understand the reason given. He is entitled to know in general terms why the decision was made. When read in the context of the referral and the earlier referral, and particularly the

decision of 26th November 2024, the person affected by the decision has “reasonable information” as to why the decision was made. The complaints raised by the appellant in this regard amount to an argument that the decision is irrational, not that it is invalid for breach of the obligation to give reasons for the decision.

74. It is also worth observing that upon receipt of the letter of 10th March 2025 the appellant apparently had sufficient information to enable him to form the view that he should seek judicial review of the decision. He instituted proceedings within eight days of the

decision issuing. He did not feel the need to wait to consider the referral form and accompanying documentation which the Agency agreed to furnish to him. It is therefore clear that the decision sufficed for the purposes of enabling a person affected by the decision to decide to seek judicial review of the decision.

75. At para. 25 of her judgment, the trial judge concluded that the content of the referral document “is such that it identifies the reasons why the committee was not satisfied other care options have not been exhausted to enable it to reach the conclusion that the applicant did not meet the criteria for a special care intervention”. I would not approach the issue in the manner in which the trial judge did. I prefer to deal with the question of adequacy of reasons separate from the question of the rationality of the decision, but I agree with her

conclusion.

76. For the reasons I have set out above, I am satisfied that there was no breach by the Agency of its obligations to provide reasons for the decision of 10th March 2025 that the child did not meet the criteria for special care intervention.

Is the Decision Irrational?

77. The second argument of the appellant is that the social work team making the referral concluded that the child met the criteria in s. 23F(2) and that he required care, pursuant to a special care order. In effect, the argument was that because the Committee reached its

decision based on the same material which was before the social work team, and the Committee reached a conclusion which differed to that of the social work team, that, in effect, there was no evidence upon which the Committee could reach the conclusion that (a) there was no therapeutic rationale to a special care order or (b) that there were other care options yet to be exhausted.

78. The court is here dealing with the expert views of the social work team and the expert views of the Committee. As was pointed out in C.K., the court should have due regard for the role which has been delegated to the Agency under the Act, particularly its function under s. 23F, and to the specialist role played by the Committee in arriving at its decision. The role of the Committee is to consider referrals made to it by various social work teams from around the country and to make a decision as to whether, in the opinion of the Committee, the particular child meets the criteria for special care intervention. The decision of the Committee, if it is a positive one, is then referred to the senior officer in the Agency who makes the formal determination, pursuant to s. 23F(7) of the Act. It is inherent in this process that all referrals to the Committee are made on the basis that the relevant social work team is of the view that the particular child meets the requirements of section 23F. However, as was held by the High Court, the opinions of the social work team expressed in the referral do not amount to a determination within the meaning of 23F(7) of the Act. The role of the social work team is to present as much relevant evidence as possible before the Committee in cases which may, in their expert opinion, meet that threshold. But the role of the social work team is not to make a determination to that effect. The role of the Committee is to make an independent assessment and to reach an independent expert view based upon all the relevant information.

79. I agree with the observations of MacGrath J. in C.K. at para. 60, that the Agency must determine: “. . . as to whether a child requires special care and to make the appropriate application to the court. In arriving at such determination, however, the [Agency] must act lawfully in the assessment and application of the criteria; and in particular in its assessment of the requirements of s. 23F(2).” In C.K., the Committee held that the behaviour of the child did not meet the threshold set out in section 23F(2)(a). The decision was challenged on the basis that there was no material before the Committee upon which it could reasonably arrive at its decision for the reason it gave. MacGrath J. agreed and held that there was nothing in the reports before the Committee that expressed a view other than that the child’s behaviour posed a real and substantial risk of harm, as the term had been interpreted by the Court of Appeal in M.L. The expressed decision of the Committee that there was insufficient evidence that the child’s behaviour did not satisfy the statutory threshold was, in the view of the High Court, unsupported by the contents of the reports which were before it, and therefore the decision was not only against the evidence, but was a conclusion arrived at without evidence in support.

80. In this case, it is accepted that the behaviour of the child meets the statutory threshold. The issue is whether the Committee’s conclusion that the case does not satisfy the requirements of s. 23F(2)(b) is sustainable. Under this paragraph, the Committee is required to assess the care requirements of the child. This necessarily involves an exercise of expert judgement by the Committee. It must then satisfy itself that, having regard to the particular behaviour of the child, and to the particular risk of harm to the child and the child’s particular care requirements, there is reasonable cause to believe that the provision to the child of care, other than special care, will not adequately address that behaviour and risk of harm and those care requirements. Whether or not any particular care or suite of care interventions will adequately address that behaviour and risk of harm, and those care requirements is a matter of assessment and judgement by experts.

81. The referral form addresses the need for a therapeutic rationale to special care for the child on internal page 13. It states: “[The child] requires a period of short-term stability and intervention within a secure settling (sic) to support him to break the cycle of risk-taking behaviour that he is currently in that is placing his life at serious risk. [The child] has no safety, structure, routine or boundaries within his home environment. This is the immediate need for [the child] at this time to be in a place of safety, where he can have his basic needs met, to ensure he has food, sleep and is removed from his home where he is involved in drug dealing, being monitored by known criminals and potentially using drugs. The Social Work Assessment is that [the child] requires a secure setting to support him to work on seeing the value and importance of education, to support him to reengage with school and re-learn the more positive side of life and life-skills away from a life of crime. [The child] needs a period of short-term stabilisation and to be able to avail of skilled staff who could work with him on the risk behaviours and reason for his making these choices in order to support him to change the direction his life is currently going. Unfortunately, we feel that attempting to put services around [the child] within the community at this time is not achievable and [the child] needs to be removed from this home and this environment and these people and his mother in order for Services to actually access [the child] to engage therapeutically with him.”

82. The therapeutic value attributed by the referring social work team is based on their assessment that the Agency will only be able to provide the services the child requires if he is in special care where they can “actually access” the child and where his criminal associates are excluded. It is predicated on the social work team’s assessment that there is no lesser form of care, in particular, no residential placement, which could adequately address the child’s behaviour and risk of harm. The referral form sets out three reasons why the social work team has reached this conclusion. The first is that it “worries” that the child “would not pass a risk assessment in relation to impact on other young people in a residential unit”. Secondly, it points to the child’s skill at stealing and hotwiring cars, and states the view that “residential staff would not be able to physically stop [the child] from leaving a unit and stealing a car and driving back to the Tallaght area”. On that basis, the referral expresses a “concern” that if the Agency were to “attempt to place [the child] in a general placement (be it foster care or residential unit), [the child] would leave and return to the gang he is attached to and go ‘underground’ and be missing to [the Agency].” The third risk identified is expressed in the following terms: “[W]e are also unsure what sort of Drug Debts [the mother] has or if [the child] has debts that he owes, and this could be a very dangerous situation should [the child] be admitted to foster care or general/private residential services not only for [the child] but for foster carer’s (sic) or other residents and staff.”

83. This reflects the assessment of the social work team. However, the Committee is entitled (and indeed, obliged) to form its own expert opinion in relation to these matters. If it disagrees with the assessment of the social work team, that does not mean that it necessarily is acting irrationally.

84. It is to be noted that the social work team has in fact referred the child for residential placement. It presumably acted bona fide in so doing and therefore would place the child in a suitable residential placement if any became available. It would not turn one down on the basis it was unsuitable for the child, otherwise it should withdraw the application for a residential placement. There is no evidence to suggest that the child has failed a risk assessment. Whether he may pass a risk assessment in the future is a matter to be considered if and when the child is offered a placement. It seems to me that the Committee can legitimately form the view that the Agency cannot proceed on the basis that he will not pass a risk assessment which has yet to be conducted. In any event, as was observed in the minutes of the meeting of 26th November 2024, a single placement option is a possibility. If a single placement were to be offered to the child, this would dispose of this first reason for concluding that a residential placement will not adequately address the child’s behaviour, risk of harm and care requirements.

85. The second concern is based upon the child’s ability to hotwire cars and what is perceived to be the allied risk that he will abscond from any residential placement short of a secure placement. The concern is based upon a curious logic. Any child who is minded to abscond from a placement may, and perhaps will do so, regardless of whether the child can steal and hotwire a car to drive to a different location. The specific concerns in relation to the child are that he would reunite with his criminal associates in the Tallaght/Jobstown area of west Dublin. If he wishes to do so, he will succeed, either by making his way there, whether by stealing a car or otherwise, or by linking up with them in some other manner. The risk does not derive from his ability to steal and hotwire cars. The risk derives from the strength or otherwise of his intention to link up with his criminal associates, not his ability to hotwire cars, which merely makes the apprehended realisation of his intention riskier. As was observed in the course of argument, he might just as easily use public transport. The point of the residential placement and support services is to assist him in breaking with these associates and to help him reassess his thinking and his behaviour and to engage with the services on offer to him. In those circumstances, it seems to me that the Committee was entitled to form the view that the child’s ability to steal and hotwire cars was something of a red herring and did not provide a basis for it to be satisfied that there was reasonable cause to believe that the provision to the child of care, other than special care, would not adequately address his behaviour, risk of harm and his care requirements as required by paragraph (b) of section 23F(2).

86. The third point raised in the referral form concerned the question of drug debts. Understandably, the referral form is very vague regarding these possible risks. The form says that the team are “unsure” what sort of drug debts the child’s mother may have. The social work team express their concern in relation to the child as being if he has debts, which, of course, begs the question as to whether he has any such debts. The furthest the referral form goes is to say that this “could” be a very dangerous situation. The Committee is, as I have said, an expert committee with considerable experience of weighing and assessing risks of this nature. The threshold is whether it is “satisfied that there is reasonable cause to believe” that the provision of care, other than special care, will not “adequately address” the relevant behaviour, risk of harm and those care requirements. Given the vague information behind the third concern, it was, in my judgement, open to the Committee to conclude that this third concern likewise did not meet the statutory threshold.

87. Clearly, as a matter for expert judgement, it is very different to the situation in C.K., where the High Court concluded that there was nothing in the reports that expressed a view, other than that the child’s behaviours posed a real and substantial harm and where the Court held that it was simply not open to the Committee to reach a conclusion that was “not only against the evidence, but is a conclusion arrived at without evidence in support”. In my judgement, the Committee was entitled to reach its own assessment of issues raised in the referral form and to conclude that the premise upon which it was contended that there was a therapeutic rationale for special care did not withstand scrutiny. In essence, the Committee was not persuaded that the only option was to subject the child to civil detention so that the Agency could “actually access” the child and provide the services which, to date, he had been offered and refused to engage with, or the residential placement which had been sought but had not, to date, been offered. In my judgement, it was not irrational for the Committee to conclude that there was no therapeutic rationale for a special care order in the case of the child at issue in these proceedings.

88. The next question for consideration is whether the Committee’s finding that other care options have not been exhausted is irrational. The Committee has considered three referrals from the social work team in respect of the child between May 2024 and February 2025. On 20th May 2024, the Committee recommended that the child be referred for residential placement. It has consistently remained of that view, despite the fact that the child has not yet been offered a place in residential care to date. On 26th November 2024, despite the fact that the application for a residential placement had yet to produce an offer of care, the Committee’s opinion was that “a community based support package should be identified including an appropriate residential placement for this young person.” The Committee disagreed with the social welfare team about the feasibility of providing the child the services he needs, other than through special care. Thus, the Committee has twice previously assessed that the child’s care requirements, having regard to the identified behaviour and risk of harm, could be adequately addressed by the provision to the child of care, other than special care. On 26th November 2024, they expressly said that the Agency needs to try a robust residential placement to try managing his behaviour prior to making a referral to special care, and that less restrictive interventions need to be exhausted in the community. They emphasised that special care is a method of last resort and that it would be a big jump for a young person who has never had a residential placement. It is in the light of these earlier decisions and the detail of the referral documentation that this Court must assess whether the decision of the Committee is unlawful on rationality grounds.

89. The appellant contends that it is irrational to say that there are other options “yet to be explored” or “other care options which have not been exhausted” in light of the contents of the referral document. The Committee disagrees. The care options were specified by the Committee on 20th May 2024, and more clearly, on 26th November 2024, and were not implemented, apparently on the basis that no placement was available (though I note that the child was “on and off” the priority list between May and November 2024). Three and half months later, the Committee believed that it was still appropriate to continue to pursue those other options because “special care is a deprivation of liberty” and it is the care of the last resort. This is accepted by the appellant. It is also, I think, significant that while the possibility of a residential placement appears to have been pursued with greater or lesser urgency, it was not abandoned. In my view the Committee was entitled to take the view that the possibility of a residential placement had not been exhausted. It is noteworthy that the respondent’s notice makes the case that: “The social work department continues to seek an appropriate placement for [the child] that would meet his needs and keep him safe.” It must go without saying that the unavailability of – or a failure on the part of the Agency to provide

– care other than special care that would meet the child’s care requirements could not justify an application for special care.

90. The Committee is made up of experts and it is entitled to a degree of deference from this Court. It is equally entitled to disagree with the expert views of the social work team. I am satisfied that it was entitled to disagree with the referring social work team as to the suitability of a residential placement for the child, and that such a placement, together with appropriate supports and interventions, would “adequately address” his care requirements within the meaning of s.23F(2) of the Act. The statutory requirement is that the Agency be satisfied that there is reasonable cause to believe that the provision to the child of care, other than special care, will not adequately address that behaviour and risk of harm and those care requirements. In view of the fact that the child was not in care and had not received any placement and “community based support package”, and in light of the relatively insubstantial views to the contrary expressed in the referral form, it was not irrational for the Committee to reach this conclusion.

91. For these reasons, I agree with the High Court that the fact that the social work team actually identified other possible care arrangements (which they discounted), and, given the basis for the team’s discounting of the various other care arrangements, the Committee’s findings that there were other care options had not been fully exhausted, was both reasonable and rational. I agree with the High Court’s conclusion that the view that the Committee was not satisfied that the provision of other care would not adequately address the child’s behaviour and risk of harm and care requirements is a valid view within the competence of the Committee and not irrational. I accept it would have been preferable had the trial judge expanded upon her conclusion that there was material before the Committee from which it could reach these conclusions, as, one reading of the judgment could lead to the reader to conclude that the content of the referral document, which advocated the need for special care, itself identified the reasons why the case of the child did not meet the statutory criteria. Having said that, it does not, in my judgement afford a reason to allow the appeal.

Mootness

92. The Agency, in its respondent’s notice, opposed the appeal and suggested, as an additional ground on which the decision of the High Court should be affirmed, that the appeal had been rendered moot. The national placement team, it was said, continued to review the care of the child. The social work department, it was said, continued to seek an appropriate placement for the child that would meet his needs and keep him safe. The relevant social work department, it was said, had not sought a judicial review nor made a fresh submission to the Committee.

93. The appellant, in his written submissions on the appeal, countered that it had never been contended in the High Court that the decision was moot. That being so, it was said, any mootness argument must be based on some event that had occurred following the High Court judgment which had rendered the appeal moot. Quite what that event was, it was said, was entirely unclear from the respondent’s notice.

94. As developed in the Agency’s written submissions, the argument was that the factual circumstances which gave rise to the referral were by then five months old and no longer applicable. The Committee – it was said – sits every fortnight and it had been, and was, open to the social work team to refer the case to each meeting since the impugned decision: which it had not.

95. The precise form of orders sought in the notice of appeal if the appeal were to be successful was (1) an order of certiorari quashing the impugned decision and (2) costs. The appellant’s written submissions went a little further, presuming that if the impugned decision was quashed, the matter would be remitted to the Committee to make a fresh decision, based on the referral form, but in accordance with law. At the hearing of the appeal it was common case that if the matter were to be remitted to the Committee, the child’s care requirements would need to be assessed by reference to the current position and not that which prevailed in March 2025.

96. The Agency’s argument that the appeal was moot was based entirely on the passage of time. I accept that it would not be appropriate to direct a reconsideration of the referral in September 2025 based on the information that was available in March. Much might have changed. That said, there was no evidence that anything had in fact changed.

97. The appellant was perfectly correct that no issue of mootness had been raised in the High Court. On one view, the Agency’s argument that any reconsideration of the child’s needs would have to be conducted by reference to current information went to the appropriateness of certiorari as a remedy: but no such issue was raised. In fact the application was heard by the High Court on 22nd May 2025, a little more than two months after the impugned decision and judgment was delivered a week later. If, for the sake of argument, it was more likely in practice that there would be a significant change in the circumstances after five months rather than two, in principle the Committee would need to be assured in either event that the circumstances had not changed before embarking on any fresh

decision.

98. It seems to me that the argument which the Agency would now make in relation to mootness is an argument which could equally have been made in the High Court, but was not. It follows, in my view, that the Agency, in what is put up as an additional ground, is seeking to introduce a new issue which might have been, but was not, raised in the High Court. The mootness argument is not based on any event which has occurred since the High Court hearing. If, as is now common case, any remittal to the Committee will have to be by reference to the circumstances as they are at the time of any fresh decision, the issues on the appeal are no different to the issues which the High Court was asked to, and did, decide. I therefore would not dismiss the appeal on grounds of alleged mootness.

Conclusions

99. I am satisfied that having regard to the context in which the decision of 10th March 2025 was made that the person affected by the decision knew in general terms why the

decision was made and had reasonable information as to why it was made. The person affected was able to form a view whether or not to seek judicial review of the decision. Therefore there was no breach by the Agency of its obligation to give reasons for the

decision.

100. The Committee is an expert body which is required to exercise its own independent judgement and expertise in carrying out its functions. It is inherent in its function that each referral, in the opinion of the individual social work team, meets the statutory threshold for special care for the particular child, but that the Committee will not always agree. The mere fact that it takes a different view is not evidence of irrationality. The Committee was entitled to take the view that the material presented by the referring social work team in respect of the child in support of the contention that no care, other than special care, could adequately address the behaviour and risk of harm and care requirements of the child was less than compelling and did not withstand scrutiny. It was open to the Committee in those circumstances to reach a contrary view. In so doing it acted consistently with its earlier decisions and did not act irrationally.

101. I would not dismiss the appeal on the basis of mootness. This issue was not raised in the High Court and no basis was advanced why the Agency should be permitted to raise it for the first time on appeal, save for the fact of the further passage of time. This is not a valid ground to introduce a new argument on appeal on the facts in this case. If the Agency had wished to rely on this point it ought to have done so at first instance and may not do so now.

102. For these reasons I would refuse the appeal and affirm the decision of the High Court.

103. Whelan and Allen JJ. have authorised me to indicate their agreement with this judgment.