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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> East Coast Area Health Board v. O' Donovan (A Minor) [2001] IEHC 222 (12 October 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/222.html Cite as: [2001] IEHC 222 |
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1998 No 667 Sp
IN THE MATTER OF ARTICLE 40.3, ARTICLE 41 AND ARTICLE 42 OF THE CONSTITUTION AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964 AS AMENDED
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTIES
JUDGMENT of Mr. Justice Kelly delivered the 12th day of October, 2001.
Introduction
The late Kim O'Donovan was a very talented but much troubled young girl. It is unnecessary for the purposes of this ruling to recount in any detail the circumstances in which she first came to the attention of this court. It is sufficient to record that on the 15th October, 1998 an order was made directing her detention and maintenance by the Eastern Health Board at Newtown House, Newtownmountkennedy, County Wicklow. On that occasion detailed evidence was presented to the court concerning Kim's very disturbed behaviour. Reports from two consultant adolescent psychiatrists were placed before the court. Both were of the view that she required to be placed in a secure structured therapeutic environment for her own safety and welfare.
No such facility was available within this State. The best that could be offered was Newtown House. That institution was sought to be made as secure as possible to try and accommodate Kim and other children with needs similar to her. She was therefore committed there notwithstanding its shortcomings. Despite them it was far better for her to be there than to continue what was described by one of the psychiatrists as her 'chaotic' way of life.
Kim's adoptive mother was joined as respondent to these proceedings and did not object to such an order being made. It is right that I should record that despite the very best and sustained efforts of her adoptive parents, Dr and Mrs O'Donovan, to provide Kim with a decent comfortable and loving home her behavioural problems rendered their efforts fruitless.
At the time of her first detention in Newtown House Kim was fourteen years of age.
Reviews by the Court
Her case was reviewed on a regular basis by this court. Again it is not necessary to recite in detail the many unhappy events which were reported to the court on these review hearings. Kim absconded from time to time, engaged in disturbances at Newtown, assaulted members of staff and inflicted injury on them and on herself. On the occasions when she escaped she engaged in activities which undoubtedly placed her health, welfare and indeed her life in danger.
Notwithstanding all of this however, she appeared to make progress and began to achieve both academically and in the field of music for which she had an undoubted talent.
The Penultimate Review
In May, 2000 a review of Kim's situation was carried out by the court. By then she had been in Newtown House for about eighteen months. The manager of Newtown House reported that during that period she had demonstrated a wide range of behaviours, many of which had given cause for great concern. Such behaviour included the destruction of property, self-harm, assault of staff and absconding. On the other hand however, he pointed out that she had responded well to having clear limits and boundaries imposed on her by staff and had at that stage enjoyed many outings and positive experiences particularly in the preceding few months. It was intimated to the court on that occasion that the health board was planning to prepare a discharge plan for Kim which would be brought to the court's attention on the next review date. I was asked to make an order for her continued detention in Newtown House for a period of three months. I directed her continued detention until the 31 st July, 2000 on which date I planned to review her position.
The Final Review
The 31st July, 2000 was a Monday. When I arrived at my chambers that morning I found an envelope containing a letter. It had been pushed under the door of the chambers. The letter was from Kim and was dated the 29th July, 2000. It was lengthy, running to some nine foolscap pages. The letter inter alia made it clear that Kim was at large from Newtown House, was allegedly residing in bed and breakfast accommodation and asserted that a reporter was paying the bill. Kim wrote that she was no longer a danger to herself or to others. She said that she did not need high support and asked me to discharge" her from Newtown House. She said that if she was put back in there she would give up hope.
When the court sat on the 31st July I was informed that Kim had indeed absconded on the 28th July (the preceding Friday). In open court I told the parties that I had received the letter in question and I inter alia repeated the extracts from it which I have set forth in the preceding paragraph. I directed that a copy of the letter be made available to the health board solicitors and that was done.
Each of the three national newspapers reported the case the following day and hi their reportage accurately recounted the extracts from the letter and in particular the assertion that Kim was staying in bed and breakfast accommodation.
An order of arrest was sought by counsel on behalf of the health board and was consented to by Kim's parents. In view of Kim's unhappy history and out of concern for her welfare I made an order directed to the Commissioner of the Garda Siochana. It directed the members of the police force to search for, arrest, detain and return Kim into the custody of the health board at Newtown House pending further order of the court. I gave liberty to notify the Commissioner of the making of that order by telephone. However, with a view to attempting to address Kim's representations to me as contained in the letter I directed that when her arrest was effected the matter was to be mentioned to the court within twenty four hours of that occurrence. This was with a view to giving further directions concerning her welfare. All of the parties before the court were extremely concerned from the point of view of Kim's welfare at the disturbing development of her escape.
The Last Contact
On the 10th August, 2000 Kim contacted Newtown House by telephone. She said that she was keeping fine, was safe, was eating properly and was not taking drugs or smoking. She said she was staying at a bed and breakfast which was being paid for by "someone". That was the last direct contact that Kim had with any of the authorities in Newtown House.
On the 24th August, 2000 Kim was found dead in the Pillar Guesthouse, Talbot Street, Dublin. A coroner's inquest recorded her death as one of misadventure due to drug overdose.
These Proceedings
With the unfortunate death of Kim these proceedings effectively came to an end. If Kim had been the only child the subject of orders of the type made in this case that would have been the end of the matter. Investigations or enquiries as to the circumstances of her escape and death would have to be dealt with by agencies other than this court.
It is however a regrettable feature of everyday life in the High Court that Kim's situation was by no means unique. There are many cases where detention orders of the type made in her case have to be made in respect of other young children with behavioural and/or psychiatric problems. I was concerned to ascertain if the circumstances of Kim's escape and death demonstrated any procedural or other shortcomings which might be avoided in the case of other young people who are already or who will in the future be the subject of detention orders made pursuant to the inherent jurisdiction of this court. With that in mind I asked for the cooperation of the parties to these proceedings as constituted at present in the conduct of a limited investigation the details of which I will recount shortly.
I wish to put on record my gratitude to all of the parties who consented to the conduct of such an inquiry. All cooperated fully. Were it not for such consent this court would have been powerless to conduct the inquiry.
The Scope of the Inquiry
It is important to reiterate that the inquiry which I have conducted is extremely limited in its nature. It is not, nor can it be, an enquiry of a general nature concerning the care or attention given to Kim whilst detained. Rather it is confined to identifying any of the possible shortcomings to which I have alluded. It was on that basis that consent to it was procured from the parties. The relevant orders of concern were (a) one directing her detention in a premises operated by the health board and (b) when she escaped an order directing her arrest by the police.
It is a sad and frequent occurrence that children escape from insecure premises such as Newtown House and orders for their arrest have to be made. Kim's case was however unique in that it was the only one where a child died whilst at large.
The consent of the parties having been procured on the understanding outlined I would not be justified nor could I contemplate any more wide-ranging inquiry than one which seeks to ascertain if there were any shortcomings present in her case which might be avoided in future cases involving the detention of minors by health boards.
Although I heard a great deal of evidence over a number of days which dealt with many aspects of Kim's behaviour, detention, progress, set-backs, the conditions which obtained at Newtown House and a variety of other matters this is not a general commission of inquiry into such matters.
I will shortly identify a number of issues which in my view fall within the remit of this inquiry and my conclusions thereon. Before doing so however, it is necessary to set forth in a general way the background to the making of orders such as the ones in suit.
General Background
It may appear strange that the High Court in the exercise of its judicial review jurisdiction should be involved in making orders directing the detention of young people in the interests of their own life, safety and welfare. It may appear even more strange that in many of these cases the applicant for such orders is a health board.
The reason for this is that although certain statutory obligations concerning young people with behavioural and psychiatric difficulties are placed upon health boards pursuant to the 1991 Child Care Act, there are no statutory provisions authorising such health boards to apply for detention orders in respect of such children. In such circumstances recourse is had to the High Court in the exercise of its inherent jurisdiction with a view to it vindicating the rights of such children. Applications of this type have become common place. The lack of appropriate statutory provisions means that every health board throughout the country has to have recourse to the High Court in Dublin when seeking orders of this type. There are no statutory criteria governing the circumstances in which such orders ought to be made. Moreover, many of the health boards do not to this day have secure facilities available to accommodate such children. Frequently therefore, recourse has to be had to ad-hoc solutions. By times these involve health boards, their personnel and indeed detention centres designed to accommodate young persons committed by the criminal courts. These have to try and adjust and adapt facilities in an effort to deal with a problem for which they are neither designed nor equipped to deal. But such solutions are preferable to the alternatives which would involve children being at large and at risk for their lives and health.
That is the general background against which the orders in respect of Kim O'Danovan were made. Newtown House was not designed to be a secure place but it had as far as possible to be transformed into such an institution to meet the very real needs of Kim and the other young persons committed there.
The Circumstances of Kim's Escape
Kim did not escape from Newtown Mouse per sc. Rather she did not return to it on Friday the 28th July, 2000. On that day she went, as she had been doing for some weeks, to a summer job at the Norwood Nursing Home in Bray. She was due to finish work at 8.00 pm that evening. The arrangement was that she would be collected from the nursing home and brought back to Newtown House. At 6.50 pm that evening Elizabeth Geary, a child care worker, telephoned the nursing home to confirm the collection time for Kim. Miss Cleary spoke with the owner of the nursing home. He told her that Kim had left her place of work at 3.15 pm saying that she wanted to cash her cheque and would be back in five minutes. She never returned.
The Part-time Job
The part-time job which Kim procured at the Norwood Nursing Home involved her attending there for up to twenty hours per week. During the bulk of that time she was not in tile custody nor under the supervision of any health board personnel. Once she was delivered to the nursing home she was effectively free from health board supervision. Although her case was reviewed by (he court on many occasions I have to record that at no stage was the court informed of the intention of the health board personnel that she should obtain work and remain out of the custody of its personnel and unsupervised by them for up to twenty hours per week.
In November 19991 conducted a review of her case and was told of thirty five off-site trips which Kim had enjoyed during the preceding six months. She had absconded on two of those trips. All of these trips were supervised and she was in the custody of members of the health board staff. I made it clear on that occasion that the decision to permit such supervised trips was a matter for the local management to decide upon at their discretion. It would be quite impossible for the court to micro-manage such outings. These outings form a useful part of the overall therapy that is provided for young people. First, they provide them with an opportunity to leave the confines of the place of detention and to recreate, albeit under close supervision. Secondly, they can be used as a useful tool to reward good behaviour and to enforce boundaries on bad behaviour. It makes sense that decisions pertaining to such trips should be at the discretion of local management. But all such trips are supervised by health board personnel.
I again reviewed Kim's case on the 8th May, 2000. The report which was placed before me on that occasion indicated a prospect that it might be sought to discharge Kim from Newtown House at the end of the summer 2000. I was told that active work was under way to seek a future placement for her. I was informed that she had responded well to having clear limits and boundaries imposed on her and had enjoyed many outings and positive experiences in the preceding number of months. I was asked to make a detention order for a further period of three months.
Nowhere in the reports of November, 1999 or May, 2000 was I given any indication of an intention on the part of the health board to permit Kim to take up a job which would involve her having lengthy periods of freedom free from health board supervision. It was in my view, quite wrong that the court was not apprised of this nor was it asked to approve of the plans in question. There was a court order in place granting custody of Kim to the health board and directing her detention. That was departed from to the extent which I have indicated without any further reference to the court. Releasing Kim to take up the job was a major departure from the regime which had been directed to remain in place by the court. Such departure ought not to have occurred without the court being fully apprised in advance of what was envisaged and its approval being sought. It cannot be said that this would jeopardise the prospect of employment or would be in any way cumbersome. Such applications can be made on as little as 24 hours notice. Had such an application been made minds would have been focused on Kim's security, the terms of the employment and other safeguards so as to satisfy the court that release from detention to take up employment was justified and appropriate.
I am not to be taken as suggesting that it might not have been a very good idea for Kim to take up such a job. I can see the value from the point of view of her own personality development that she should do so. It might also have been a useful preparation for her ultimate release from Newtown House to a less secure setting. Such release was clearly in the contemplation of the health board when they presented the report to the court on the 8th May, 2000. Had the court been asked to, it might very well have approved of Kim taking up the job in question but whether it would or would not is mere conjecture. It was accepted by the relevant witness that there was not a word in the reports presented to the court either in November, 1999 or May, 2000 indicating any intention that Kim would be allowed to do work away from Newtown House and unsupervised by health board personnel for up to twenty hours per week. That she was allowed to do so without reference to this court was wrong.
The Arrangements with the Nursing Home
The decision to allow Kim to seek employment on a part-time basis was apparently made by the health board as far back as December, 1999. She did not gain such employment until July, 2000.
Kim applied for a number of different jobs and attended a number of interviews. On the 6th July, 2000 she was interviewed for a job in a hairdressers but was unsuccessful. On the 12th July, 2000 she was interviewed for the post in Norwood Nursing Home. She was taken to that interview by the deputy manager of Newtown House. She was interviewed on her own. The interview was conducted by the charge nurse on duty at the nursing home. Following the interview Kim felt that it had gone very well and indicated that she had been offered the position and could start a trial period that afternoon from about 3.00 pm to 5.00 pm. She asked the deputy manager's permission to do this. Given the success she had had with her interview and her enthusiasm to begin work he agreed that she could commence that day. It was agreed that she would work until 5.00 pm and would then be collected by care staff from Newtown House. Kim was apparently delighted with this opportunity. She was to have a further interview with the owner of the home the following day. If that interview were successful she expected to be offered a job.
The deputy manager, on return to Newtown House that day spoke by telephone with the charge nurse who had interviewed Kim. He apprised him of Kim's circumstances. He told him that she was a young person in the care of the health board and was living in a residential unit with other people. He told the charge nurse that the Newtown staff would have to check in with the nursing home staff to see how she was progressing on a daily basis.
The next day the deputy manager had a telephone conversation with the owner of the nursing home. He referred to the conversation which he had had on the preceding day with the charge nurse and reiterated that Kim was a young person in the care of the health board and was living in a residential unit. He ascertained that the proprietor of the nursing home had reviewed Kim's performance and was happy to offer her work. The deputy manager clarified the exact duties which Kim would have and what her hours of work would be. He repeated that Newtown staff would need to make daily checks with the nursing home. He also told the owner of the nursing home that Kim would have other commitments and activities such as her counselling sessions and that she would be unable to work every day. He was told that Kim would be doing general work such as cleaning, assisting with meals and recreational activities with the patients. He clarified that Kim would not have any access to any drugs or be involved in the administration of such drugs to patients. He explained that Kim would be brought to and from work by care staff. He told the owner that Kim was at risk of absconding but that that was considered to be a low risk. He agreed with the owner that if anything untoward happened or if there was any problem with Kim's behaviour that the nursing home staff would contact him immediately at Newtown. He also agreed that if for any reason Kim was going to be late or did not turn up for work the Newtown staff would let the nursing home staff know. He also said that the Newtown staff would ring once or twice a day to check with the nursing home that Kim was where she was supposed to be.
Armed with this information the deputy manager took the view that the type of work that was being offered to Kim was suitable for her and he believed that the nursing home understood what would be required in relation to Kim.
Kim worked on the 12th, 13th, 14th and 15th July, 2000. She was brought to and from work by staff. Her behaviour was very good and it was agreed that if she kept that up she could use public transport for work the following week. Public transport between Newtown House and Bray is by provincial bus service. She used that service on the 17th July. She did not have to work on the 18th, 19th, 20th or 21st July. She resumed on the 22nd July. She was scheduled to work from 9.00 am to 6.00 pm. She took the bus to work that morning and was due to be collected at 6.00 pm that evening. During the day she telephoned Newtown House and said that she had walked out of her job without telling the nursing home management after a disagreement with staff there. The nursing home staff took a different view. They believed that she had simply got fed up working and walked out because it was a nice day. Notwithstanding this they were willing to have her back to work. She went to work on the 23rd July by bus. There were no problems. She was to work the following Tuesday, Thursday and Friday between 2.00 pm and 8.00 pm each day. It was arranged that she would be collected from work on each of those days. It was also agreed with the proprietress of the nursing home that if there were any further problems whilst Kim was on duty Newtown House would be told.
There was some difficulty in Kim providing a urine sample to the authorities at Newtown House during the course of the week up to 26th July. There was a lengthy discussion with her about this on the evening of the 26th July.
On the 27th July Kim was in good form. She left Newtown at 1.00 pm to catch the bus to Bray. The bus did not turn up on time and Kim rang the house and told her key worker that the bus had not arrived and that she would be late for work. It was arranged for a taxi to collect her and drop her to work.
On the evening of the 27th July, Newtown staff contacted the nursing home to confinn Kim's working hours for the following day. She had been due to work from 2.00 pm to 8.00 pm. Norwood wanted Kim to come to work early on the 28th July in order to accompany a patient with a nurse to the Mater Hospital. This was agreed. Kim left for work at 9.00 am and was brought by taxi to the nursing home. However, when she got there the patient had already left and so she was not required until 2.00 pm. She contacted Newtown at 9.10 am and spoke to the care staff. It was arranged that she would be collected and brought back to Newtown by taxi. It was explained to the Newtown staff by a nurse on duty at the nursing home that the ambulance which was scheduled to take the patient to the Mater Hospital had arrived early and so it was unable to wait for Kim.
Kim returned to Newtown House and spent the rest of the morning there. She expressed frustration about the mix-up that had taken place at the nursing home. She was unenthusiastic about returning to work that afternoon. However, the deputy manager drove her to the nursing home to take up duty at 2.00pm. She continued to be somewhat annoyed but he reasoned with her and eventually she appeared to understand that what had occurred that morning was a simple miscalculation.
The deputy manager went off duty at 5.00 pm that day. He was, however, the on-call manager that night. He was called at 6.55 pm by one of the care staff in Newtown House. She advised him that she had been in contact with the nursing home to find out the time at which Kim should be collected and was told that Kim had left at 3.15 pm that day to go to the bank to cash her pay cheque. She did not return. The deputy manager did not believe that Kim was absconding. He felt that it was more likely that she was just suiting herself and that she would turn up to be collected as arranged. He therefore gave instructions to ensure that a member of staff was at Norwood at 8.00 pm and that if Kim had not shown up by 8.15 pm then they would have to treat the situation as one where she had absconded. Kim did not turn up by that time and the police were then notified.
The nursing home staff did not inform Newtown House that Kim had not returned from the bank as soon as that became clear in mid afternoon. The explanation proffered for this failure was that the staff were too busy and had not a chance to do so.
I have detailed the many contacts that existed between the Newtown staff and that of the nursing home. I have done so to demonstrate that close liaison was maintained as between the two institutions from the outset. Nonetheless it appears to me that there were some shortcomings in the arrangement. I am of the view that there ought to have been a written procedure or protocol worked out as between the two institutions so as to regulate in quite a detailed way the conditions under which Kim would be permitted to work. I do not think it desirable that the information which was undoubtedly passed on concerning Kim's circumstances should have remained as a word of mouth exchange. This is particularly so where both institutions had frequent shift changes of staff. There ought, in my view, to have been written directions given which would be available to anybody in authority in the nursing home so as to ensure that Kim (a) could not have any dealings with drugs which might be administered to patients and (b) to set forth in detail what was to occur in the event of Kim absconding. As it happened well over three hours elapsed between Kim's failure to return from the trip to the bank and anybody in Newtown House becoming aware of the fact of her departure. Such delay might have been avoided had there been a clear written procedure requiring the authorities in Norwood to notify Newtown in such an event. Even if there was such a written instruction, it is of course a matter of some conjecture as to whether the procedure would have been followed if the staff in the nursing home had indeed been too busy. Nonetheless at least there would have been no doubt as to their obligations in that regard.
I do not think that criticism can be made of the decision taken by the on-call manager not to regard Kim as having absconded from the time that he was notified (shortly before 7.00 pm) until she failed to appear at 8.15 pm. In the circumstances I think that that was a reasonable approach to take. He was very surprised that she had absconded on that day. He regarded her as a very low risk at that time. In these circumstances I think it was a reasonable approach to take.
The Steps Taken on the 28th July, 2000 and the days following
The childcare worker who checked with Norwood Nursing Home at 6.50pm on the evening of the 28th July was informed of Kim's disappearance having taken place at 3.15pm that day. She contacted a member of the staff who was then in the Bray area on a trip with another young person. She arranged for him to go to the nursing home at 8.00pm as previously arranged and instructed him to contact her if Kim failed to show up. She also alerted the on-call manager and informed him of the situation who said to wait until 8.15pm before treating the situation as an abscond on the part of Kim.
At 8.15 pm word came that Kim had not turned up. The childcare worker on duty then put into effect an abscond procedure which existed at Newtown. She inter alia made contact by 8.25 pm with Wicklow/Newtownmountkennedy police station. She also made contact with Bray and Dun Laoghaire police stations. At 8.45 she contacted the out of hours social worker and a message concerning Kim was left with a request that Newtown House be contacted. By 9.10 pm the out of hours social worker had returned the telephone call and was informed of the situation.
By 9.30 on that night she had faxed Garda headquarters and police stations in Wicklow, Newtownmountkennedy, Bray and Dun Laoghaire with relevant documents including details of the abscond, a photo of Kim and information which she had given verbally in her earlier conversations with the relevant police stations.
At 10.00 pm she made contact by telephone with Kim's adoptive mother to inform her of the abscond.
By 10.20 she had made contact with the manager of the Norwood Nursing Home to ascertain how much money had been received by Kim that day in respect of wages. It was a sum of ninety pounds.
At 10.55 pm she contacted Store Street and Bridewell police stations in respect of the abscond and subsequently sent relevant details concerning Kim by fax.
On the days following there were regular checks made with police stations at Bray, Dun Laoghaire, Store Street, the Bridewell, Harcourt Street, Shankhill and Pearse Street.
In my view no legitimate criticism can be made of the steps taken by the staff at Newtown in implementing the abscond procedure and it appears to me that they reacted quickly and efficiently in notifying all of the relevant agencies over that weekend. Furthermore, it is clear that the information conveyed to the police authorities was acted upon and again I do not think that any legitimate criticism can be made of the steps taken by the police to alert their members and to take such steps as they could to locate Kim.
The Events of the 31st July. 2000
In the introduction to this judgment I set forth what occurred both prior to my presiding in court on that day and what transpired concerning the letter written to me by Kim.
Although the letter in copy form was furnished to the solicitors acting for the health board it is remarkable that they never furnished it to the police authorities. Not merely that but neither they nor any other health board personnel informed the police of the fact that Kim alleged that she was residing injbed and breakfast accommodation. Although that allegation received widespread publicity in the newspapers the following day, it is astonishing that it remained unknown to the police authorities until after her death. Indeed the Superintendent in charge of the Bray district only became aware of this during this enquiry. He said that neither he nor, he believed, any guard under his control knew of this.
I am by no means saying that the information furnished by Kim was necessarily accurate. However, the testimony of the Chief Superintendent makes it clear that if the information had been furnished to the police it would have been taken into account and would have provided another lead. It would have constituted another thread in the investigation. It is a matter of conjecture whether it would ultimately have made any difference. But it might have.
It is clear from the garda evidence that other information furnished to them was the subject of investigation. It is also clear from the evidence of the operational Superintendent that had this information been given to the police, enquiries would have been made at bed and breakfasts via the community guards who would bring a photograph and make a discreet inquiry at such establishments. He was of the view that the information if it had been supplied would have narrowed down their investigations and their search.
It is impossible to say whether if such information had been furnished to the police, Kim might have been apprehended prior to her death. Such information as has been acquired concerning her movements during the period of her absconding is limited and sketchy. For example, the police have not been able to account for her movements on the 1st, 3rd, 7th, 8th, 9th, 10th, 13th and 16th August. Of the days that have been accounted for it would appear that Kim stayed in the Pillar Guesthouse on the 21st August and again on the 23rd August. That is the only information available to date which suggests that she spent any time in a bed and breakfast accommodation.
As I have indicated it is impossible to say whether this information, if known to the police, would have made any difference, but in my view, it ought to have been told to them and it was a serious failure of communication not to do so.
Other Events
It is clear that there were continuous enquiries made concerning Kim by health board personnel throughout the period of her being at large. Much of that appears to have been what I may describe as 'cold calling1 police stations seeking information. Such a method of enquiry is clearly unsatisfactory since the enquirer was dealing with individual police officers who might have no knowledge whatsoever of what precisely was going on. I am glad to note that this situation has been rectified by the appointment of a liaison officer to deal with cases like these. This officer will be possessed of all the relevant facts and enquiries can be specifically made from him. This will obviate the inefficient and unsatisfactory situation which I have described.
The Phone Call of the 10th August
At 11.10 pm on the 10th August Kim telephoned Newtown House. The phone was answered by a member of the night staff who then handed over to the child care worker who was on duty. She gave evidence before me. She said that Kim sounded fine, quite normal and quite cheery. Kim said that she was ringing in to let Newtown staff know that she was "okay". The child care worker was familiar with Kim and formed the view that she sounded normal and that there was no indication that she was under the influence of any substance.
The child care worker, from previous experience dealing with young people who abscond, knew that she would not get an answer to the question "where are you?". So she sought to find out where Kim was by asking her how she was, how she was keeping, what she was doing for money, and questions of that nature.
Kim said that she was fine, that she was keeping her nose clean, that she was not taking drugs and she was not smoking. The child care worker asked her why she left so suddenly and invited her to come back to Newtown so that things could be worked out. Kim said that she did not intend to come back and did not want to pursue that conversation. She said that she had been stopped by the guards on two occasions. Again, she said that she was staying in a bed and breakfast and that someone was paying for her. The child care worker sought to probe that but with no success. When asked about money Kim indicated that she was working in a shop but'would not indicate the name of the shop or where it was. Kim sounded relaxed and confident and said she did not intend returning to Newtown House. She kept saying that her bus was coming and the child care worker took the view that she was making an excuse for cutting off the telephone conversation. It lasted about five or six minutes.
The child care worker made a note of this conversation in the log kept at Newtown House notwithstanding the lateness of the hour. That log would have been passed over to the next shift and would have been seen by all of the staff.
Notwithstanding this, that piece of information concerning Kim's assertion as to where she was staying was not communicated to the police.
On the 13th August, 2000 the child care worker had a conversation with Sergeant Flynn of Bray police station. He was of the view that it was desirable that the media should become involved and that that provided the only chance of finding Kim. He communicated that view to the worker who again noted it in the log. The matter does not appear to have gone any further than that.
The Case Conference of 11th August, 2000
A case conference concerning Kim had been held on the 20th July, 2000. A further one was planned for the 1 lth August. All of the individuals who were to attend that conference had already attended the earlier one in July. There was however, an additional person whom it was intended should attend namely the Superintendent at Bray garda station. A letter dated 8th August, 2000 was prepared. It extended an invitation to the Superintendent or "a member of your service" to attend a review meeting on Friday 1 lth August, 2000 at 11.30 am at Tivoli Road in Dun Laoghaire. This letter was never received by the Superintendent. No direct evidence of its posting was adduced although if the usual procedure was followed, and there is evidence that it was, then it ought to have been posted. A letter went out on the same day addressed to Dr Michael of Lucena Clinic seeking a report on Kim.
The meeting went ahead on the 1 lth August without any representative of the Garda being present.
Apart from the sending of the letter dated the 8th August, 2000 no other attempt or effort was made to contact the guards prior to the meeting with a view to ensuring that they were aware of it so that they might attend. They were certainly willing to do so.
Even on the assumption that the letter was sent, it would have arrived at the police station no earlier than the 9th August, 2000. The invitation was to a conference forty eight hours later. Given that the child was missing at that stage for approximately two weeks the presence of the police at such a conference was obviously a matter of some importance. Indeed, an invitation would not have been extended to them unless it was felt that they had something to contribute. Notwithstanding this no other attempt was made to make contact with the police prior to the meeting apart from the sending of the letter. Such an approach does not appear to me to be satisfactory.
The meeting went ahead without any police being present. It did not occur to those present that it ought to be deferred pending their attendance. Neither did anyone have the presence of mind to phone the Superintendent. No attempt was made to contact the police during the meeting.
It is clear from the minutes that there was discussion of the letter which Kim had sent to me including her assertion that she was being put up in a bed and breakfast by a reporter. Had the police been present at this meeting they would have become aware of that assertion whilst there.
There does not appear to have been any effort made to contact the police subsequent to the meeting.
In summary therefore, so far as this aspect of the matter is concerned, the chairman of the meeting decided some time towards the end of the preceding week that it would be important that the police Superintendent be invited to it. That made perfect sense. On Tuesday the 8th August the letter of invitation was dictated. The Superintendent had no knowledge whatsoever of that meeting. Nobody from the health board attempted to contact him to alert him to it apart from the letter. The letter in question was never received by the Superintendent. There was no police representation at the meeting. Nobody attempted to make contact with the police during the meeting. The meeting went ahead and concluded its business. There was no direction given that what went on at the meeting was to be subsequently notified to the Superintendent.
The attendance of the police at this meeting would have made a valuable contribution in the search for Kim. It was, in my view, quite unsatisfactory that the meeting should have proceeded as it did. The police presence was a crucial one. Whilst I accept that there was regular but unsatisfactory contact between health board personnel and the police stations as I have already outlined, the fact is that another opportunity was lost for an exchange of valuable information with the police by their understandable non-attendance at the meeting.
The police cannot be criticised for not attending a meeting of which they were unaware. It was not adequate that a single letter was written inviting the Superintendent or a member of his service to a pre-arranged meeting forty eight hours subsequent to the earliest possible receipt of the letter. If anything the meeting should have been arranged so as to facilitate the attendance of the police by reference to their commitments rather than to the commitments of child care workers. There was little point in addressing questions of the child's welfare whilst she remained at large. Her recovery was the most crucial issue to be considered.
The failure to notify the police of the outcome of the meeting or of the points discussed is as mystifying as the failure to furnish them with the information contained in, or a copy of the letter sent to me ten days before the meeting.
The Attempts by the Police to execute the Warrant
As I have already indicated this is not a general inquiry into police procedures any more than it is into the various complaints made by Kim O'Donovan concerning her treatment whilst in Newtown House. It is specific and focussed upon the issues identified in an effort to learn any lessons that might be useful for the future.
Having regard to the police evidence which I heard as to the efforts made to give effect to the warrant, it appears to me that they were generally satisfactory. I do not think that legitimate criticism can be made of the procedures which were followed. The one area in which an improvement might be brought about has already been identified, namely the appointment of a liaison officer.
The Letter of the 6th April, 2000
On the 6th April, 2000 Kim wrote a letter addressed to me. I never received it. The reason for that is clear. The letter was not sent on to me by the authorities at Newtown House. On one view of it this letter has little to do with the matter that I am inquiring into since it antedated the events by many months. Nonetheless it is of importance for a number of reasons. It is mentioned in the final paragraph of Kim's letter to me of the 28th July. She said "/ wanted to write to you before but wasn't allowed. I did however send you one letter requesting in vain to be put into St John of God's Hospital but it was never sent. I am not in need of psychiatric services but anywhere is better than being locked up".
I infer that the letter which she referred to in that paragraph was the letter of the 6th April which was not forwarded to me. It clearly played some part in her thinking in writing the letter of the 29th July, 2000.
It was quite proper that the authorities conceded at the very outset that this letter of the 6th April, 2000 was not forwarded to me. Not merely did they concede that it had not been forwarded but they accepted that that was a serious infringement of the rights of Kim O'Donovan. Any person who is incarcerated pursuant to court order must have access to the High Court by correspondence without hindrance. That did not happen here and that was a serious omission.
Having said that, it would, I think, be unfair to regard what I have said as being a criticism of an individual or individuals at Newtown House. The plain fact is that at that time every child in detention there had a list of persons with whom he or she might correspond. The High Court was not on Kim's list of correspondents and so the letter was not forwarded. I am satisfied that was what occurred here was not a deliberate or conscious violation of Kim's constitutional rights but rather arose through a mixture of ignorance and poor training.
The work undertaken by the staff at Newtown House was extremely difficult. There were many pressures upon them. They had an extremely difficult clientele to deal with. They were frequently subjected to abuse, both physical and verbal. Their work hours were long. On occasions they were working double shifts. Newtown House was a high support rather than a secure unit and they had by dint of their own endeavours to try and turn it into a secure unit. No training was given to them concerning the entitlements of young people who were there on foot of detention orders to communicate with the High Court. In these circumstances it is small wonder that what occurred happened.
In the light of the attitude adopted here a#d by the health board I would be surprised if there would ever be a repetition of such an event again.
Conclusions
1. Kim O'Donovan ought not to have been allowed to leave the direct supervision of the health board to take up employment without the permission of this court. No such permission was sought or obtained. It ought to have been. An application for such permission could have been heard on twenty four hours notice.
In future cases in which children are directed to be detained I will require an undertaking from the detainer (health board or otherwise) that when an order for detention is in place it will not be departed from without leave of the court. Such leave is not of course required to enable off-campus trips or visits to take place in circumstances where a child will be supervised by appropriate personnel. However, unsupervised off-campus trips are inconsistent with a detention order and are impermissible unless the detention order is relaxed by the court.
An application which seeks to vary a detention order must place all relevant information before the court which would touch upon the child's welfare. In the case of employment which it is suggested ought to be undertaken by a child in detention, full details must be given together with information as to the arrangement in place to deal with such a child absconding.
2. There was a serious failure to inform the police of the contents of the letter sent to me by Kim dated the 29th July, 2000. Although furnished with a copy of the letter the board's legal advisers did not furnish it or its contents to the police. As a result the guards were unaware of the assertion that Kim was staying in bed and breakfast accommodation.
Although that assertion was publicised in the daily newspapers the next day the guards remained unaware of it until this inquiry began many months after Kim's death. There does not appear to be any proper system in place to ensure that this might not happen again.
3. The holding of a case conference on the 1 lth August, 2000 in the absence of a police representative was a waste of time and resources. There was little point in discussing questions concerning the future welfare of the child when she was missing and had been so for about two weeks. The primary purpose of such a meeting ought to have been an exchange of information as between the police and health board personnel. The absence of a police representative (for which the police were not in any way responsible) meant the loss of a further opportunity for relevant information to be provided.
4. The police have already put a new procedure in place to deal with cases of children who abscond. It is the appointment of a liaison officer. He correlates all information from the police side and is readily available to maintain contact with health board personnel. In my view the health board ought to do likewise. The appointment of a single individual from the health board to whom all information will be furnished and who can act as a channel for that information to be passed on to the police is essential. Such an appointment will bring an end to the unsatisfactory and wasteful practice of daily telephone calls to unidentified police officers in police stations and ought to ensure that relevant information is passed on to the police. There ought to be regular contact between the health board liaison officer and the police liaison officer.
The first face to face meeting between these two officers should only take place after each has obtained full information from the relevant personnel in their respective services with a view to ensuring that they have as comprehensive a picture concerning the absconder as is possible.
If such a procedure had been in place in the instant case there would have been no question of the police remaining ignorant of the assertion made in Kim's letter as occurred. It would also have avoided the waste of time and resources of daily contacts being made with police stations.
In future cases involving the detention of minors I will require an undertaking to be given that in the event of the minor absconding a liaison officer will be appointed by the health board so as to ensure maximum cooperation and exchange of information with the police authorities.
5. Kim's letter of the 6th April, 2000 addressed to the court was not in fact sent to it. I have dealt with that in the body of this ruling. I have no doubt but that the health board has already addressed this but as the matter is one of such importance, in future when children are the subject of a detention order I will require an undertaking from the health board that any communication that the child wishes to make to the High Court will not be impeded.
This concludes this very limited enquiry. Wider questions which may require to be answered are not for this court.
I hope that no other child the subject of a detention order will suffer the same fate as Kim O'Donovan. The recommendations and requirements which I have set forth will, I hope, minimise such a risk.
