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1. This is an appeal brought on behalf of DG (a minor) by his guardian ad litem MR (hereinafter referred to as the Applicant) against the judgment and order of Kelly J given and made on 27 June 1997.

The relevant portion of said order is as follows:

It is ordered that the Governor of St Patrick's Institution forthwith do detain in his custody the said Applicant for a period of three weeks during which time:

The Applicant is to be subject to the discipline of the said St Patrick's Institution.

A full psychiatric assessment is to be carried out on the Applicant at the clinic in St Patrick's Institution.

That the said governor do dispense with visitation restrictions in so far as is possible and consonant with the good running of the institution so as to allow officials of the Eastern Health Board access to the Applicant.

And it is ordered that this matter be listed before this Court on Friday, 18 July 1997 for further review.

By order dated 28 April 1997 the learned trial judge had made an order appointing the minor's next friend as his guardian ad litem in these proceedings and had granted leave to apply by way of application by judicial review for:
 
(i) A declaration by way of an application for judicial review that in failing to provide suitable care and accommodation for the Applicant and in discriminating against him as compared with other children, the Respondents have deprived the Applicant of constitutional rights under Articles 40 and 42 of the Constitution, with particular reference to the provisions of Article 40.1, Article 40.3.1o, Article 40.3.2o and Article 42.5.
 
(ii) Mandamus by way of an application for judicial review directing the Respondents to provide suitable care and accommodation for the Applicant.
 
(iii) An injunction by way of an application for judicial review directing the Respondents to provide suitable care and accommodation for the Applicant.
 
(iv) Damages,

on the grounds set forth at paragraph (e) which said paragraph is as follows:
 
(e) Grounds upon which relief is sought.
 
(i) Declaratory relief
 
1. The Applicant was born on 9 July 1980 and has been in the care of the first named Respondent since 1984. The Applicant was sent to a secure unit in the United Kingdom by the first named Respondent in August of 1996 and while in that jurisdiction he was convicted of criminal offences and was sentenced to nine months' detention on 29 November 1996 by Reading Youth Court. Before the completion of that sentence the Applicant was transferred to St Patrick's Institution, Dublin on foot of an application by the Minister for Justice to this Honourable Court pursuant to the Transfer of Sentenced Persons Act 1995. On 7 March 1997 the Applicant was released from St Patrick's Institution without there being any accommodation available to him. He is currently homeless and is residing on a temporary basis with Fr Peter McVerry.
 
2. The Applicant has been identified as a child at risk who has in the past exhibited behaviour that is dangerous to himself and potentially to others. The lack of suitable residential care facilities has meant that the Applicant's rights have not been vindicated. The first named Respondent's failure to make provision for suitable care and accommodation for the Applicant is in breach of its obligations to provide care for the Applicant.
 
(ii) Mandamus to provide suitable care and accommodation for the Applicant.
 
1. Ss 4 and 16 of the Child Care Act 1991 impose statutory obligations on the first named Respondent to take children into care where those children require care or protection that they are unlikely to receive unless they are taken into care. In the case of s 4 this care is voluntary while in the case of s 16 application is made to the court for a care or supervision order. The first named Respondent has failed in its statutory obligation in not protecting and providing care (including suitable residential care) for the Applicant who is a child at risk.
 
2. S 38 of the Child Care Act 1991 imposes a statutory duty on the first named Respondent to make arrangements with suitable persons to ensure the provision of an adequate number of residential places for children in care. The first named Respondent has failed to provide an adequate number of such suitable residential places.
 
3. S 5 of the Child Care Act 1991 imposes a statutory duty on the first named Respondent to take such steps as are reasonable to make available suitable accommodation for a homeless child in its area where the first named Respondent is satisfied that there is not accommodation available which the child may reasonably occupy. The first named Respondent has failed in its statutory obligation in not providing suitable accommodation for the Applicant who is homeless within its area.
 
(iii) Injunctive relief
 
1. Having regard to the nature of the matters in respect of which relief is sought by way of an order of mandamus, the nature of the Respondents against whom relief may be granted and all the circumstances of the case, it would be just and convenient for this Honourable Court to grant the injunctive relief sought.
 
2. The Applicant will suffer irreparable loss and damage. Damages would not be an adequate remedy to the Applicant.

The said order dated 28 April 1997 further provided that:

The Applicant be at liberty to issue a notice of motion seeking injunctive interlocutory relief -- returnable before this Court at 11.00 am on Tuesday, 6 May 1997 and to serve same on the chief executive officer on behalf of the first named Respondent and on the Chief State Solicitor on behalf of the second and third named Respondents.

In pursuance of the aforesaid order of the High Court made on 28 April 1997 the Applicant caused to be issued a notice of motion claiming the relief he had been granted leave to seek and the said motion was served on the solicitor to the first named Respondent and on the Chief State Solicitor on behalf of the second and third named Respondents.

The said notice of motion was returnable for 6 May 1997 and on that date a statement of opposition was filed on behalf of the said second and third named Respondents but it does not appear from the papers filed in this appeal that a statement of opposition has yet been filed on behalf of the first named Respondent.

It appears from the submissions made on behalf of the Applicant that at the time when the application for leave to seek relief by way of judicial review was made to the High Court on 28 April 1997, the Applicant was residing with Fr Peter McVerry at Ballymun Towers in the City of Dublin and had been so residing with him from 7 March 1997.

During this period the Applicant's solicitor had, on five occasions, written to the solicitor to the first named Respondent requesting that proper accommodation be made available for him.

The application for interlocutory relief was adjourned from time to time on the basis that the Applicant would continue to reside with Fr McVerry and that the first named Respondent would continue to make enquiries as to whether a suitable facility for him could be found abroad as no suitable facility existed within the State.

On 4 June 1997 the Applicant was hit over the head with an iron bar by another resident in the hostel. He was taken to hospital with a fractured skull and was discharged from hospital on 12 June 1997. He spent the night of 12 June in bed and breakfast accommodation.

The matter was then brought before Kelly J who made an order on that day that the Applicant should reside at Kilnacrot Abbey under the care of child care workers. The matter was again listed before Kelly J on 17 June 1997 when he directed that the Applicant should continue to reside at Kilnacrot Abbey under the control and care of child care assistants who were to be provided by the first named Respondent.

The matter was again listed before Kelly J on 26 June 1997 because it appeared from an updated court report made by Ms Fulham that the Applicant's placement in Kilnacrot would cease from 7 July 1997 because the Kilnacrot authorities were due to receive a large group on that day and they would not be in a position to further accommodate the Applicant.

It was in these circumstances that the matter came before Kelly J on 26 June 1997 and was dealt with by him on that day and on the following day, 27 June 1997.

At the beginning of his judgment, the learned trial judge stated:

This is yet another case in which the court is called upon to exercise an original constitutional jurisdiction with a view to protecting the interests and promoting the welfare of a minor. The application arises because of the failure of the State to provide an appropriate facility to cater for the particular needs of this Applicant and others like him. It is common case that what is required to deal with his problem is a secure unit where he can be detained and looked after. No such unit exists in this State and even if one did, there is no statutory power given to the court to direct the Applicant's detention there. Such being the case, and in the absence of either legislation to deal with the matter or the facilities to cater for the Applicant, I have in the short term to do the best that I can with what is available to me.

He then dealt with the history of the Applicant and his family situation which he properly described as 'quite appalling'.

He summarised such history in the following terms:

The evidence which I have at this stage can be summarised as follows: First, the Applicant is not mentally ill. Secondly, he has a serious personality disorder. Thirdly, he is, both by reference to his conduct in the past and the evidence which I have had from Ms Fulham and Dr Smith, a danger to himself. Fourthly, he is a danger to others. Fifthly, he has a history of criminal activity and violence. Sixthly, he has a history of arson. Seventhly, he has in the past absconded from non-secure institutions. Eighthly, he has failed to co-operate with the Eastern Health Board and its staff. Ninthly, he has failed to co-operate in the carrying out of a psychiatric assessment upon him in the past.

It is obvious from a consideration of the judgment of the learned trial judge that he was confronted with a very difficult question of what he was to do with a view to vindicating the Applicant's constitutional rights and ensuring, as best he could, the promotion of his welfare and that he was fully aware that in determining this issue he had to regard the welfare of the Applicant as of paramount consideration to him and that he was under an obligation to uphold the Applicant's constitutional entitlements as a minor and to ensure in so far as he could that his needs were catered for.

It was agreed by the parties hereto that there were only four options available to the learned High Court judge. These options were:
 
1. To do nothing;
 
2. To direct his continued detention in Kilnacrot;
 
3. To order the Applicant's detention in the Central Mental Hospital; or
 
4. To order the Applicant's detention in St Patrick's Institution.

For the reasons set forth in the course of his judgment, he rejected the first three options and made the order, directing the detention of the Applicant in that institution up to 18 July 1997, when the position would be reviewed.

He provided in his judgment that:
 
1. the Applicant would be subject to the normal discipline of that place,
 
2. he would have a full psychiatric assessment made on him by the psychiatric staff in the clinic attached thereto and in respect of which he had evidence from Dr Smith,
 
3. there would be liaison between the Eastern Health Board staff and the authorities of St Patrick's Institution,
 
4. by Wednesday, 16 July, the court was to be put in possession of a report of the psychiatric staff at St Patrick's Institution and from the Eastern Health Board as to what progress, if any, have been made and as to the general well-being of the Applicant,
 
5. the Eastern Health Board would continue to try and find a place suitable for the Applicant's needs out of the jurisdiction, and
 
6. the matter would be reviewed by him on 18 July 1997.

It is unfortunate and regrettable that a judge should be forced to the conclusion that the welfare of a child, such as the Applicant, required that he be detained in a penal institution by reason of the failure of the State to provide adequate facilities to cater for his needs and his rights.

APPEAL

From this order the Applicant has appealed on the grounds that:
 
1. The learned trial judge did not have jurisdiction pursuant to the inherent jurisdiction of the High Court to order the detention of the Applicant in a penal institution, namely, St Patrick's Institution.
 
2. The learned trial judge was wrong in law and in fact in exercising the inherent jurisdiction of the court in such a manner as to direct the detention of the Applicant in a penal institution, namely, St Patrick's Institution.
 
3. The learned trial judge was wrong in law and in fact in deciding that the detention of the Applicant in St Patrick's Institution until 18 July 1997 was appropriate having regard to the test that the best interests of the Applicant was the first and paramount consideration.
 
4. The learned trial judge in directing that the Applicant should be detained in St Patrick's Institution until 18 July 1997 failed to properly protect and vindicate the Applicant's right to liberty pursuant to the provisions of the Constitution.
 
5. The learned trial judge in directing the Applicant should be detained in St Patrick's Institution until 18 July 1997 failed to achieve a correct and proper balance between the need to protect the Applicant and his right to liberty pursuant to the Constitution.

ISSUES ON APPEAL

The issues which arise in this appeal are:
 
1. Whether the High Court has jurisdiction to order the detention of the Applicant;
 
2. If it has such jurisdiction, does the jurisdiction extend to making an order directing the detention of the Applicant in a penal institution, such as St Patrick's Institution
 
3. If it has, was the jurisdiction properly exercised by the learned High Court judge

JURISDICTION

The jurisdiction of the High Court is such jurisdiction as:
 
(1) is conferred by the Constitution,
 
(2) may be imposed by statute, and
 
(3) is necessary to fulfil the obligations imposed on it to defend and vindicate the personal rights of the citizen.

Article 40.3.1o provides that:

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.

In the course of his judgment in People (DPP) v Shaw [1982] IR 1 Kenny J stated in relation to Article 40.3 that:

The obligation to implement this guarantee is imposed not on the Oireachtas only, but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws.

It is part of the court's function to vindicate and defend the rights guaranteed by Article 40.3.

If the courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the courts have the jurisdiction to do all things necessary to vindicate such rights.

As stated by O Dalaigh CJ, in the course of his judgment in State (Quinn) v Ryan [1965] IR 70 at p 122:

It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizens that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were custodians of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or circumvent them, and that the courts' powers in this regard are as ample as the defence of the Constitution requires.

It was accepted by counsel on behalf of the Applicant that it may be lawful in certain circumstances for the court to order the detention of a child with a view to protecting his or her constitutional rights but submitted that such power does not extend to ordering the detention of a child in a penal institution.

CONSTITUTIONAL RIGHTS

In this case, the constitutional rights of the Applicant involved are:
 
1. as set forth in Article 40 of the Constitution, that no person shall be deprived of his liberty save in accordance with law, and
 
2. the unenumerated personal rights as set forth by Higgins CJ in the course of his judgment in G v An Bord Uchtala [1980] IR 32 where he stated at p 56:

Having been born, the child has the right to be fed and to live, to be reared and educated, to have of the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State.

CONFLICT OF RIGHTS

There is undoubtedly a conflict between the constitutional right to liberty of the Applicant and the order made by the learned trial judge directing his detention in St Patrick's Institution until 18 July 1997.

In the course of his judgment in Attorney General v X [1992] 1 IR 1; [1992] ILRM 401 Finlay CJ stated at pp 57/429:

I accept that where there exists an interaction of constitutional rights, the first objective of the courts in interpreting the Constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied, where such harmonisation may not be possible and in these instances I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights.

It was submitted on behalf of the Applicant that in directing the detention of the Applicant in St Patrick's Institution, the learned trial judge failed to achieve a correct and proper balance between the need to protect the Applicant and the Applicant's right to liberty pursuant to the Constitution.

It is clear from a consideration of the judgment of the learned trial judge that he recognised that the paramount consideration for him was the welfare of the child and on the basis of the evidence before him, he concluded that in the absence of any other suitable facility within the State the place most suitable to ensure his welfare, having regard to his needs, was St Patrick's Institution.

The welfare of the Applicant took precedence over the right to liberty of the Applicant. There is ample evidence to support his finding in that regard.

It is regrettable, to say the least, that the learned trial judge, being satisfied that the welfare of the Applicant required that he be detained in a safe and secure unit, as was accepted by all parties to these proceedings, was forced, by reason of the lack of any other suitable facility to order the Applicant's detention in a penal institution for a short period.

At the conclusion of his judgment, the learned trial judge said:

In conclusion may I say I am extremely unhappy at having to make the order which I have just made but of the four options available to me it is the one which, in my view, is best suited to the welfare and needs of this Applicant in the short term. It is not a solution. None of the other options are a solution either. But of the four unattractive options it seems to me that for the welfare of this Applicant it is the least offensive and in my view his welfare will be best served by being committed there as I have ordered.

I am satisfied that:
 
(1) The learned trial judge had jurisdiction to make the order which is the subject matter of the appeal herein;
 
(2) Having that jurisdiction, he exercised the same in a lawful manner, consistent with the requirements of the welfare of the Applicant;
 
(3) He exercised such jurisdiction for a short period namely three weeks and that he was correct in so doing.

The jurisdiction which I have held is vested in the High Court is a jurisdiction which should be exercised only in extreme and rare occasions, when the court is satisfied that it is required for a short period in the interests of the welfare of the child and there is, at the time, no other suitable facility.

The exercise by the High Court of its jurisdiction in this regard should not in any way be used by the Respondents in these proceedings to relieve them of their statutory obligations in regard to the Applicant and they should continue their efforts to make suitable alternative arrangements consistent with the needs of the Applicant and if any such arrangements can be made, he should not be detained in a penal institution.

These are matters which will have to be taken into account by the learned trial judge when he resumes hearing the interlocutory application made by the Applicant herein.

I would dismiss the appeal brought by the Applicant against the order of the High Court.

MURPHY J (Keane J concurring): It is important to emphasise that it has not been disputed in this Court or in the High Court that the learned trial judge had jurisdiction to order the detention of the minor in what is euphemistically described as 'secure accommodation'. Whilst it was accepted that the restraint to be imposed on the minor should be commensurate with his capacity and propensity to abscond, it was contended that even where such factors do exist to a very significant degree that the courts would not be entitled to commit an innocent party to a penal institution.

As there is now an established practice for the High Court to commit seriously deprived, but wholly innocent, young people to some form of detention as the only means of protecting their basic rights and no argument was addressed to this Court challenging that practice, I believe that this Court must proceed with the appeal from the interlocutory order of the learned judge on the assumption, rather than a finding, that such jurisdiction exists.

Assuming that the High Court does have jurisdiction to order the detention of a young person in some establishment or institution which has not been designed to meet the needs of the child nor designated by statute for that purpose, I accept that the learned trial judge was entitled to look at committal to St Patrick's Institution as a possible option. Having regard to the limited and unattractive choices available to the court, the needs and character of the minor, the short duration of the detention and the particular purpose which the learned judge sought to achieve, I believe that his decision can and should be upheld.

In this Court all of the parties expressed the view that the detention of the minor in St Patrick's Institution should not be continued after 18 July 1997. It is reasonable to anticipate that when this view is made known to the learned trial judge he will enquire, as he has already done, 'What then should I do ' It is perhaps unusual, but I believe that I should express my own view that it would be preferable to make no order at all -- and recognising that that is a very unattractive course indeed -- than to direct the detention of the minor in a penal institution until he attains the age of 18 years. Of course my views are in this respect in no way binding on the learned trial judge and are offered solely out of sympathy with him in the impossible situation in which he finds himself.

I would dismiss the appeal.

DENHAM J:

APPEAL

This is an appeal by DG a minor (hereinafter referred to as the appellant) against an interlocutory order of the High Court which stated:

It is ordered that the Commissioner and members of the Garda Siochana forthwith do arrest, detain in their custody and convey the [appellant DG] into the custody of the governor of St Patrick's Institution

And thereupon

It is ordered that the Governor of St Patrick's Institution forthwith do detain in his custody the [appellant] for a period of three weeks during which time:

The [appellant] is to be subject to the discipline of the said St Patrick's Institution.

A full psychiatric assessment is to be carried out on the [appellant] at the clinic in St Patrick's Institution.

That the said governor do dispense with visitation restrictions in so far as is possible consonant with the good running of the institution so as to allow officials of the Eastern Health Board access to the [appellant].

And it is ordered that this matter be listed before this Court on Friday, 18 July 1997 for further review.

The appellant is thus currently detained in St Patrick's Institution which is a penal institution. It is subject to prison rules, staffed by prison officers and the inmates are kept in cells, which are locked.

The appellant has not been charged with an offence, or been convicted of an offence, or failed to pay a fine, or been found in contempt of court. Rather, he is a minor who has brought civil proceedings against the Eastern Health Board, Ireland and the Attorney General regarding his care and accommodation.

FACTS

The appellant is 17 years old, his father is in the Central Mental Hospital and his mother lives what is described as a 'chaotic lifestyle'. He has been in the care of the Eastern Health Board since he was two years old. He was placed in children's homes until 1986 and thereafter with a foster family. In 1991 the foster placement broke down and he was placed with a carer's family. That placement broke down because of his behaviour.

Between 1991 and 1993 he was placed in a number of residential placements which broke down due to his aggressive, violent and increasingly sexualised behaviour. In 1993 he was charged with assault and remanded to Oberstown Boys Centre. In May of 1994 he was sentenced in the District Court to a term of two years' detention in Oberstown Children's Centre. In May of 1996 he was released. He was allocated two residential placements, one urban and one rural. The policy was to alternate him between the two placements in an effort to stabilise his behaviour. These placements failed. In August of 1996 the Eastern Health Board placed him in a specialised residential unit in the United Kingdom. This placement also failed. In November of 1996 the appellant was convicted at Reading Youth Court of the offences of criminal damage, burglary, arson and aggravated theft of a vehicle and sentenced to nine months' imprisonment at Feltham Detention Centre. At the request of the Eastern Health Board the Minister for Justice obtained an order from the High Court in February of 1997 pursuant to the Transfer of Sentenced Persons Act 1995, directing that the balance of the appellant's nine months sentence be served in St Patrick's Institution. In March of 1997 the appellant was released from St Patrick's Institution. The Eastern Health Board have made attempts to accommodate the appellant. They are actively seeking to identify another specialised residential centre out of the jurisdiction in which to place the appellant.

PROCEEDINGS

On 28 April 1997 the High Court made an order appointing MR guardian ad litem of the appellant and giving leave to apply for judicial review. The reliefs sought in the judicial review are:
 
(i) A declaration by way of an application for judicial review that in failing to provide suitable care and accommodation for the [appellant] and in discriminating against him as compared with other children, the Respondents have deprived the [appellant] of Constitutional rights under Articles 40 and 42 of the Constitution, with particular reference to the provisions of Article 40.1, Article 40.3.1o Article 40.3.2o and Article 42.5.
 
(ii) Mandamus by way of application for judicial review directing the Respondents to provide suitable care and accommodation for the [appellant].
 
(iii) An injunction by way of an application for judicial review directing the Respondents to provide suitable care and accommodation for the [appellant].
 
(iv) Damages.

This application for judicial review has not yet been heard. The order in issue is an interlocutory order in the proceedings. It is unclear when the judicial review action itself will be heard. The case is listed for review on 18 July 1997.

In the interlocutory proceedings before the High Court the learned High Court judge summarised the evidence as being that the appellant is not mentally ill, but that he has a serious personality disorder, he is a danger to himself, he is a danger to others, he has a history of criminal activity and violence, he has a history of arson, he has in the past absconded from non-secure institutions, he has failed to co-operate with the Eastern Health Board and its staff, he has failed to co-operate in the carrying out of a psychiatric assessment upon him in the past.

The learned trial judge said that it appeared that there were four options open to him, namely:
 
(a) do nothing, ie release the appellant from the custody of the Eastern Health Board to fend for himself;
 
(b) send the appellant back to Kilnacrot;
 
(c) direct the appellant's detention in the Central Mental Hospital;
 
(d) send the appellant to St Patrick's Institution.
 
(a) On the first option the High Court held:

I am satisfied that there is a real risk of serious injury to himself if this minor is not in secure accommodation and I do not rule out the possibility of injury to self even resulting in his death. In those circumstances I am not prepared to accede to the application of the Eastern Health Board to make no order and to release him from its custody.
 
(b) On the option that he be sent back to Kilnacrot the learned trial judge noted that the appellant could only be guaranteed a place there for a week and he pointed to the evidence from the Eastern Health Board that the position there is no longer workable and is positively dangerous to himself and others. He accepted that the appellant was a danger to himself and other minors and staff there, but that the appellant's first preference was to be further detained in Kilnacrot.

It has also been said to me that the next friend will attempt to secure his co-operation to having an independent psychiatric assessment carried out on him whilst there. She is prepared to co-operate in that regard by even staying overnight so as to try and facilitate this happening. But I cannot ignore the fact that he has wholly failed to co-operate with the Eastern Health Board in its attempts to carry out such assessments. I have no basis for believing that he will prove any more co-operative in the future. In these circumstances I have reluctantly come to the conclusion that his welfare is no longer served by being detained in Kilnacrot.
 
(c) The third option -- detention in the Central Mental Hospital -- was the preferred option of the State when the matter was argued before the High Court. However, Dr Smith did not consider it suitable. It would also be very negatively regarded by the appellant. On the evidence the High Court concluded that a remand to the Central Mental Hospital is not the appropriate order to make.
 
(d) The fourth option -- that he be sent to St Patrick's Institution -- was adopted by the High Court, although the learned High Court judge acknowledged that it was a penal institution and that it is most undesirable that persons other than convicted criminals or prisoners on remand should be sent there. He held, having noted the constitutional rights of a child,

Given these rights of the [appellant] I have to ask myself how can they be vindicated in the present case and I have, with considerable reluctance, come to the conclusion that it can only be done by directing his detention in St Patrick's Institution. I consider that I do have jurisdiction to do so and in doing so I do not accept that I am breaking new ground.

The learned trial judge referred to the judgment of Geoghegan J in D T v Eastern Health Board High Court, 24 March 1995 where he stated:

I am satisfied for the reasons which I indicated in the N case that the State owes a constitutional duty to the [appellant], DT, to cater for her needs. But the situation in her case was so extreme that I acceded to a health board request that I make an order authorising the Garda Siochana to take her into detention and bring her to Oberstown House where she could be kept in confinement and receive suitable care. I took the view that the problem was so extreme that even though there was no express statutory power enabling me to make that interim order, I was satisfied having regard to the principles enunciated in O'Flaherty J's judgment in the Supreme Court in MF v Superintendent Ballymun Garda Station [1991] 1 IR 189 at p 205, that since such an order was necessary to vindicate the constitutional rights of the child the Constitution empowered me to make it.

The learned trial judge pointed out that Geoghegan J in the recited case made the detention order in the case of the 12 year old whom he sent to a suitable place of confinement, Oberstown House. Returning to the appellant in this case Kelly J stated:

In this case the [appellant] is 17 years old. I consider that the place which is best suitable to ensure his welfare and having regard to his needs is St Patrick's Institution. I have come to that view certainly in so far as the short term is concerned and I am justified in that view by the evidence . . . I am therefore today going to make an order for the detention of the [appellant] in St Patrick's Institution until this day three weeks.

The learned trial judge stated that during that time in St Patrick's Institution the appellant will:
 
(1) Be subject to the normal discipline of that place.
 
(2) He has to have a full psychiatric assessment made on him by the psychiatric staff in the clinic attached thereto and in respect of which I had evidence from Dr Smith.
 
(3) Between this and then there is to be liaison between the Eastern Health Board staff and the authorities of St Patrick's Institution.
 
(4) By Wednesday, 16 July the court is to be put into possession of a report from the psychiatric staff at St Patrick's Institution and from the Eastern Health Board as to what progress, if any, has been made and as to the general well being of the [appellant].
 
(5) Between this and then the Eastern Health Board is to continue to try and find a place suitable for the appellant's needs out of the jurisdiction.
 
(6) The matter will be reviewed by this Court on 18 July 1997.

In conclusion may I say I am extremely unhappy at having to make the order which I have just made but of the four options available to me it is the one which, in my view, is best suited to the welfare and needs of the [appellant] in the short term. It is not a solution. None of the other options are a solution either. But of the four unattractive options it seems to me that for the welfare of this Applicant it is the least offensive and in my view his welfare will be best served by being committed there as I have ordered.

APPEAL

The appellant has appealed from the above order. In essence he submitted that the learned High Court judge has no jurisdiction pursuant to the inherent jurisdiction of the High Court to commit him to a penal institution. The Eastern Health Board also submitted that the order detaining the appellant in St Patrick's is a step too far. The State submitted that while the appellant should not be detained in St Patrick's Institution after 18 July the learned High Court judge had jurisdiction on the evidence to exercise his discretion as he did. All are agreed that the appellant should not be detained in St Patrick's Institution after 18 July 1997.

STATUTE

The Eastern Health Board has a legal duty to provide social services. The Child Care Act 1991 sets out the statutory duties of a health board in relation to the care and protection of children residing in its administrative area. S 2(1) defines a 'child' as:

a person under the age of 18 years other than a person who is or has been married.

S 3 provides, inter alia:
 
(1) It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.
 
(2) In the performance of this function, a health board shall --
 
(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;
 
(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise --
 
(i) regard the welfare of the child as the first and paramount consideration, and
 
(ii) in so far as is practicable, give due consideration having regard to his age and understanding, to the wishes of the child; and
 
(c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.

S 4(3)(a) provides:

Where a health board has taken a child into its care under this section, it shall be the duty of the board --
 
(a) subject to the provisions of this section, to maintain the child in its care so long as his welfare appears to the board to require it and while he remains a child, . . .

S 36 states:
 
(1) Where a child is in the care of a health board, the health board shall provide such care for him, subject to its control and supervision, in such of the following ways as it considers to be in his best interests --
 
(a) by placing him in with a foster parent, or
 
(b) by placing him in residential care (whether in a children's residential centre registered under Part VIII, in a residential home maintained by a health board or in a school or other suitable place of residence), or
 
(c) . . .
 
(d) by making such other suitable arrangements (which may include placing the child with a relative) as the health board thinks proper.
 
(2) . . .
 
(3) Nothing in this section shall prevent a health board sending a child in its care to any hospital or to any institution which provides nursing or care for children suffering from physical or mental disability.

DETENTION OF A CHILD

The High Court has developed a jurisprudence in its inherent jurisdiction to direct the detention of children on an interlocutory basis. This inherent jurisdiction has been considered in a number of cases: FN v Minister for Education [1995] 1 IR 409; [1995] 2 ILRM 297; GL v Minister for Justice High Court No 398 JR (Geoghegan J) 24 March 1995, DT v Eastern Health Board High Court (Geoghegan J) 10 February 1995, DT v Eastern Health Board High Court (Geoghegan J) 24 March 1995, DD v Eastern Health Board High Court 1995 No 120 JR (Costello P) 3 May 1995, PS v Eastern Health Board High Court (Geoghegan J) 27 July 1995, Comerford v Minister for Education [1997] 2 ILRM 134.

The matter of an inherent jurisdiction in the High Court to order the detention of children in child care institutions to protect their welfare has not been argued and is not an issue before this Court. The issue in this case is whether there is an inherent jurisdiction in the High Court to order the detention of a child in a penal institution when that child has neither been convicted of an offence nor charged with an offence.

CONSTITUTION

Relevant articles of the Constitution include:

Article 40.1:

All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

Article 40.3.1o:

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.

Article 40.3.2o:

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 of every citizen.

Article 40.4.1o:

No citizen shall be deprived of his personal liberty save in accordance with law.

Article 42.4:

The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

Article 42.5:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Thus among the rights of the appellant are included the right to equality, to constitutionally unenumerated personal rights, to the right of the person, to the right of good name and to the right of personal liberty. These rights the appellant shares with adults. As a child he has additional rights which are recognised and protected by the Constitution.

DECISION OF THE HIGH COURT

The learned trial judge was correct in taking the view that he must vindicate the appellant's constitutional rights by ensuring, as best he could, the promotion of the child's welfare. His next decision, that the appellant be detained in a penal institution, is the core of the appeal to this Court.

CONSTITUTIONAL RIGHTS

In my view the decision to detain the appellant in a penal institution breached a number of his constitutional rights.
 
(a) Liberty

The appellant has been deprived of his personal liberty by the detention order. There being no statute establishing the power of such detention the High Court exercised its inherent jurisdiction. In such exercise it was required to act in accordance with the Constitution.

The deprivation of liberty of a minor to provide safe, secure welfare and education in a child's residential home or institution specifically run for the care of children is fundamentally different to loss of liberty in a penal institution. A deprivation of liberty by being placed in a child's residential institution brings into consideration the 'differences of capacity, physical and moral, and of social function'. It also encompasses the fundamental right of the child to his welfare and to his right to education. It is a harmonising of children's conflicting rights of welfare and liberty. However, detention in a penal institution is not such a harmony.
 
(b) Moral welfare

The function of a penal institution is to detain people who have been convicted of a crime or are charged with a crime. There is an element of criminality and punishment.

In this case the child is being contained in a penal institution, not a child care institution. There is a moral basis to the institution that the prisoners have done wrong or are Accused of doing wrong. This is described by the word penal, which is defined in the Oxford English Dictionary as:

penal . . . of or belonging to punishment . . . penalty . . . pertaining to or related to punishment . . . having as its object the infliction of punishment, punitive, prescribing or enacting the punishment, punitive; prescribing or enacting the punishment to be inflicted for an offence or transgression . . .

Containment of a child in an institution for the welfare of children which is a school, with a staff of teachers and social workers and which is an institution of education and development cannot be compared to the detention of a child in a penal institution. The appellant's moral welfare is intruded upon by being placed in a punishment institution when he has not been charged or convicted of an offence. Further, the moral development and welfare of the child is invaded in that it will become more difficult to teach concepts of right and wrong and fundamental moral obligations and duties if he has suffered detention in an institution of punishment when he has done no wrong. The appellant's moral welfare has thus been breached by this detention order.
 
(c) Equality

No adult could be ordered to a penal institution in circumstances such as those existing here. It would be preventative detention, which is unconstitutional. Thus the child is not equal to the adult. However, the Constitution clearly envisages equality being affected by differences in capacity. Thus, the mere fact that such an order could not be made of an adult does not per se render it unconstitutional.

However, the rationale for such loss of equality by the child is that the loss of liberty is for the welfare of the child. Consequently loss of liberty to enhance education and the training and development of a child is of a different character. The function of a children's institution is education, correction and care, it relates to the capacity of the person, it is not delivering a punishment. It is of the essence of the institution that it be educational and caring and consequently fundamentally a school or child care establishment staffed by appropriate personnel. In contrast a penal institution is an institution for punishment staffed by prison officers. It may well have medical, educational and training facilities but they are not the raison d'etre of the institution.

A deprivation of liberty by placement in a child care institution carries with it the concept of the welfare of the child. A prison does not. Thus the inequality suffered by the child by being placed in a penal institution in such circumstances relative to the position of an adult is unconstitutional, the appellant's right to equality has been breached by this order. The rationale which exempts a child care institution does not apply. Further, approaching the matter as to equality between children, it must be queried whether a child from a different background, who brought a civil action, would find himself ordered to be detained in a penal institution.
 
(d) The person and good name

The appellant's rights of person and good name are infringed by being placed in a penal institution when he has neither been charged with nor convicted of an offence.
 
(e) Bodily integrity and social welfare

The bodily integrity of the appellant has been endangered. The appellant is currently deprived of his liberty, he is in an institution in the unique position where he alone of the inmates is neither charged nor convicted of an offence. This places him in an intolerable situation, in fact he spends his time locked in a cell. His social welfare is thus also impinged.

The Supreme Court had the benefit of the psychiatric report prepared pursuant to the order the learned High Court judge. From it we are told that nothing has changed, the appellant has an abnormal and disturbed personality but it is not treatable. He is not mentally ill.

DECISION

The decision should achieve a harmonious balance of the appellant's constitutional rights. If that is not possible a hierarchy of rights must be established and a priority applied.

It is for the courts to vindicate the constitutional rights of the appellant. In this the learned trial judge was correct. Counsel for the appellant did not submit that detention of children is necessarily unlawful. He submitted that this detention in this place for this reason for this appellant is unlawful. It is thus a question of seeking a harmonious balance between certain rights of the child and, if necessary, determining a priority. The appellant's loss of liberty was illustrated in the court as the child was brought to court in handcuffs and only released on application to the court by his counsel.

I would allow the appeal. By ordering the appellant to be detained in a penal institution the learned High Court judge exceeded his jurisdiction and breached the appellant's constitutional rights.

The courts have a duty to protect and vindicate the appellant's constitutional rights. He has a bundle of rights as to his person and welfare including the right to life, to protection of the person, to liberty, bodily integrity, equality. The State has the constitutional obligation to supply the place of the parents, but with due regard for the rights of the child.

The Child Care Act 1991 does not permit any type of detention by the health board. The health board has the care of the child but the child's rights must be preserved. Finlay P in G v An Bord Uchtala [1980] IR 32 stated that the child:

. . . likewise has a constitutional right to bodily integrity and has an unenumerated right to an opportunity to be reared with due regard to his religious, moral, intellectual, physical and social welfare. The State, having regard to the provisions of Article 40.3.o of the Constitution must by its laws defend and vindicate these rights as far as practicable.

The appellant has the right to be reared with due regard to his religious, moral, intellectual, physical and social welfare; to be fed, accommodated and educated; to suitable care and treatment; to have the opportunity of working, and of realising his personality and dignity as a human being.

For the purpose of this action it has been accepted that there is an inherent jurisdiction in the courts to order the containment of a child. Cases previously referred to have so ordered. Thus the liberty of children has been breached and a harmonising of rights applied favouring the physical and mental welfare of the child. Children have been ordered to:
 
(a) Glen House (a health board institution for housing the more difficult children): FN v Minister for Education.
 
(b) Trinity House: GL v Minister for Justice and
 
(c) a unit or institution managed by the Eastern Health Board: DD v Eastern Health Board.

These cases were situations where curtailment of a child's liberty was ordered for the purpose of placing him in a specialised child care institution. It was part of the care of the child, as envisaged in the best interest of the child, that the child be contained. The basic concept of care of a child was advanced through a child care institution. In catering for the welfare of the child and balancing the constitutional rights of the child the loss of liberty was considered appropriate to vindicate the child's other constitutional rights. The welfare of the child was the first and determining factor for the courts, as it should be in all cases.

The learned trial judge was placed in a most difficult position. The evidence so far suggests that the child needs a secure and appropriate unit. No such unit exists in the State. The Eastern Health Board has a statutory duty. The child has constitutional rights and needs care. His personality is such that this makes it very difficult. But that very difficulty is why the Eastern Health Board has care of this child.

The learned trial judge cannot conjure up a secure accommodation unit. That responsibility does not lie with the courts. However, the courts must protect and vindicate the constitutional rights of the child. I accept for the purpose of this case (the issue was not argued) the inherent jurisdiction of the High Court to order the detention of a child in a child care institution. However, I am satisfied that it is a step too far, an invasion of the child's rights as to moral, intellectual, physical and social welfare, to order his detention in a penal institution in the stated absence of appropriate accommodation. Also, it is a breach of his right to liberty, equality and bodily integrity. And it must be stressed once again that this order of detention of the appellant arose in civil proceedings brought by the appellant in relation to his care and accommodation by the Respondents. The difficulties of the Eastern Health Board are apparent; however, the board should address its statutory duties and the learned High Court judge should proceed on that basis.

The learned High Court judge exceeded his jurisdiction, the order breaches the constitutional rights of the child. Consequently, I would allow the appeal.

The order of the court should be to release the appellant, that immediately thereafter counsel for all parties should apply to the High Court for an appropriate order as to the care and accommodation of the appellant. In making this order I bear in mind (a) the statement of counsel for the Eastern Health Board that the Eastern Health Board will continue to provide for the appellant in accordance with its duties, and (b) that this case is at an interlocutory phase.