THE HIGH COURT
JUDICIAL REVIEW
			No.  461 JR/97
BETWEEN
T.D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M.D.) 
			APPLICANT
AND
THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD AND BY ORDER THE MINISTER FOR HEALTH AND CHILDREN
			RESPONDENTS

JUDGMENT of Mr. Justice Kelly delivered ex tempore on the 4th day of
December 1998.

	The problems of young people and children who, for their own welfare, require special accommodation and therapy are so well known that it is hardly necessary to rehearse them again.
	It is now more than 3½ years since Geoghegan J. delivered his judgment in the case of F.N. v. Minister for Health (1995) 2 I.L.R.M. 297.  He summarised his decision in the following way:-
	
	"In summary I take the view that the State is under a constitutional obligation towards the applicant to establish as soon as reasonably practicable, either by use of Section 58(4) of the 1908 Act or otherwise, suitable arrangements of containment with treatment for the applicant".

	That was the first of many cases in which recourse was had to this Court on the part of needy children.  The reason for such recourse was the failure on the part of the other organs of Government to provide any or any adequate facilities to deal with such children.
	It is clear from the evidence that I have heard on this application that over a long number of years such children were provided for by homes run by religious orders and congregations.  With the decline of vocations to the religious life, these orders and congregations have had to withdraw from the provision of such facilities.
	The burden of providing such places has therefore shifted to the State.  The State was manifestly ill-prepared for the assumption of such obligations.
	The vacuum created by this state of affairs was not filled by legislature or executive and so applications began to be made to this Court as a place of last resort with a view to asserting and enforcing the rights of such young people which were not being catered for as they ought to have been by the other organs of the State.
	In the passage which I have just cited from the judgment of
Geoghegan J., he expressed the view that the State was under a constitutional obligation to provide suitable arrangements of containment with treatment for the applicant and others like him.
	What has happened since then has been set out in my own judgment in D.B. (A Minor Suing by his Mother and Next Friend S.B.) v. The Minister for Justice and Others (unreported judgment delivered 29th July, 1998).  I will not repeat what I said there.  It is sufficient to record that such was the lack of progress in honouring the declarations made by Geoghegan J. that I felt it necessary to grant a mandatory injunction against the Minister for Health and Children compelling him to proceed to establish a high support facility at Portrane by a specified date.  On that occasion I said:-

	"It is regrettable that this course has to be adopted.  I am, however, satisfied that the Court could not keep faith, either with its own obligations under the Constitution or with the minors with whose welfare it is concerned, unless intervention is made now.

	Accordingly, the injunction sought will be granted and I will discuss the form of the Order with Counsel presently.

	Before I do so I have to point out that no proposals have been forthcoming as to what is to happen in the short term.  If applications continue to be made to Court at current rates, I will continue to be confronted with impossible situations as a matter of regularity for the next four years.  That situation should have been at an end by now.  I therefore reserve the right to intervene, by way of injunction if necessary, to ensure the provision of a short term solution in any case that requires it".

	I am satisfied that insofar as the long term needs of the Eastern Health Board in this sphere are concerned, they will be addressed by the provision of the facilities contemplated at Ballydowd and Portrane.  But the problem of what is to happen in the meantime remains.
	It was with a view to appraising the position in this regard that I directed information and evidence to be put before the Court from the Eastern Health Board and the Department of Health and Children.  I did so because the predictions which I made in July came to pass with great rapidity.
	Again, I need not detail the cases which I have had to deal with throughout the Long Vacation and for the first two months of this term.  It is enough to record that I have had a number of serious and tragic cases where children have had to be sent to Oberstown Remand Centre in circumstances where that facility is not merely inappropriate for them but is positively damaging to them.  In each case the only environment more damaging to them than that one would occur if they were at large on the streets.
	It is quite clear that their rights have not been addressed appropriately even though declared by this Court over 3½ years ago.  The administrative torpor and absence of planning described in my judgment of 29th July, 1998 is largely responsible for this.    That is not to deny or underestimate the problems involved in providing these facilities.  There could not have been any instant solutions but this Court did not require that impossibility to be achieved.  Geoghegan J. required that the facilities in question be provided "as soon as reasonably practicable".  Certainly, much more progress ought to have been made than was the case.  
	Before considering the position as it now emerges in evidence, I wish to one again make it clear that I have the greatest regard for the personnel of the Eastern Health Board and the various institutions which have been called upon to house and maintain these young people.   Nobody could envy them their task.
	I also appreciate how difficult it is to recruit suitable trained staff to man facilities of the type required.  I note with approval that work on this aspect of the problem is already under way with a view to staffing the proposed facility at Ballydowd, which will not of course open for some considerable time yet.
	Nonetheless, the interim position remains unsatisfactory.  Even now there is no information before either the Department of Health and Children or this Court as to the numbers of young people in the State who require facilities of this type pending the coming on stream of Ballydowd and Portrane.
	The Eastern Health Board does have such figures in respect of its catchment area but has no plans to cater for all such persons even on a short term basis.  The simple mathematics of the figures put before me show that fifteen to twenty people require to be catered for and there will be eleven places, at a maximum, provided in the short term.  Four to five of these have been promised through the good offices of the Southern Health Board and the Mid-Western Health Board.  It is, I think, no coincidence that these "possible" places were offered during the hearing of the evidence in the present application.  Little or no information has been placed before me as yet on this aspect of the matter.
	The evidence of Mr. Collins from the Department of Health and Children leaves me under the impression that at last the urgency of this situation is now appreciated and that steps are under way to address it.   Certainly, the present position of the Department, from the point of view of the provision of finances, is a vast improvement on what was the case before.  The senior managers group identified by Mr. Collins appears to be suited to apprise the Department of what is needed and how it should be provided.  The pity is that it took three months from my judgment in July of this year to even set up this group.  One wonders if it would have been set up at all or, if so, how long it would have taken had I not given directions in early October concerning the placing of information before the Court.
	I am, therefore, satisfied that progress is at last being made albeit late in the day and slow in momentum.
	As for the Eastern Health Board, I accept that although there are as yet no plans to deal with all of the young people in need of help in the short term, that is not indicative of a lack of endeavour.  Ms. Clarke's evidence was eloquent testimony to the efforts being made to surmount very difficult problems.  I do not underestimate these problems.  The demands being made upon the Health Board are enormous.  The children, the subject of these proceedings, form only a small part of the population which has to be dealt with by that Health Board.  The responsibility for investigating allegations of child sexual abuse falls upon the same personnel that have to deal with the minors that this Court has to deal with.  The large increase in the number of such complaints over a short period of time has compounded the difficulties for the Eastern Health Board staff.
	Although I regard what has been given in evidence before me as progress, I am not content, having regard to the history of tardiness, to simply let the Health Boards and the Department work matters out as between themselves in their own time.  The Court will have to monitor very closely the progress being made and, if necessary, intervene by Order or injunction.  I hope that that will not be necessary.  Indeed, my ultimate hope is that applications of this sort will cease and become a thing of the past when proper facilities are provided.
	In these circumstances I will direct that the Court be kept abreast of developments and in particular that information concerning the following be placed before it:-

        1.	The outcome of the senior managers group meeting or meetings to take place in the near future.   
        2.	Information concerning the national position, i.e., the Health Board requirements for high support places in each of their catchment areas.  This information should include the number of places at present being supplied by each of the Health Boards for the relevant category of minors.
        3.	The steps being taken to provide appropriate facilities in terms of premises, staffing, facilities and funding.
        4.	An estimate of the time involved for the provision of such facilities.
        5.	Information concerning whatever overall plan or strategy which has been or is being devised to deal with the problem.
        6.	Any other relevant matter.

	I direct that this information be furnished to the Court by way of Affidavit, such Affidavit to be sworn and served not later than the 27th January, 1999.  The matter will then be listed for further consideration by the Court on the 29th January, 1999.