Tusla held in contempt of court over noncompliance with secure care orders

Tusla, the child and family agency, was in contempt of court when it failed to comply with orders directing that it place three vulnerable children in secure care, the High Court has ruled. Judge Emily Egan on Friday held that Tusla’s efforts to comply with the court orders did not excuse its failure to do so, and found the agency to be in contempt of court. Highly troubled and vulnerable children aged 11 to 17 can be detained in a secure care unit, known as special care, on foot of a High Court order sought by Tusla. Once Tusla determines that a child requires a secure care placement, the agency is obliged to seek a High Court order to that end. However, due to bed shortages amid chronic staffing issues, Tusla is often unable to comply with those orders. Earlier this month, 14 of the 26 beds across the State’s three special care units were operational. READ MOREIn the cases before Egan, lawyers for three children subject to special care orders sought a declaration that Tusla was in contempt of those orders, arising from the agency’s failure to place the children in special care due to bed shortages. The orders were granted in respect of the children late last year.The three plaintiff children experienced various difficulties before entering secure care, facing “profound vulnerability, exploitation, trauma and risk”. In her judgment, Egan noted that while the three plaintiff children were eventually placed in special care, the problem of noncompliance with orders is a “systemic, recurring problem”. The judge identified several key legal issues to be determined, including whether wilful disobedience of a court order is a necessary element for making a finding of contempt. She also considered whether a party’s “good faith best efforts” is a defence to a finding of contempt. With reference to Supreme Court authorities, Egan then considered the factors relevant to judicial discretion in making a finding of contempt. In its defence, Tusla acknowledged its breach of the orders, expressed its wish to comply with them, and apologised to the court and the plaintiff children. However, the judge held that a contempt finding does not require a party accused of contempt to act deliberately, wilfully or disrespectfully. Those factors, the judge noted, can be considered by a judge in exercising their discretion to make a finding of contempt. Likewise, good faith efforts by the agency to address staffing shortages and thus comply with the orders do not preclude a finding of contempt, but can be considered by the judge in exercising discretion, Egan held. Tusla argued that its breach was excusable, pointing to its efforts to comply with the orders by addressing staff shortages. Tusla outlined various initiatives to the courts aimed at attracting and retaining staff.The judge rejected this argument, finding that Tusla had not discharged the onus of proof required to demonstrate that the breach was excusable. The judge noted the agency had not reasonably explained its abandonment of a “long-standing” campaign to secure “real improvement in remuneration” for staff.She said she was not satisfied that what Tusla described as its “good faith best efforts” to comply with the orders outweighed other relevant factors supportive of the plaintiff children’s case for the contempt finding.Outlining the circumstances of the children, the judge noted that one child − who is under the age of 13 − had been involved in instances of assault, shoplifting and absconsion from placements. Before entering secure care, there were fears that he was being exposed to criminal exploitation and possible sexual exploitation. Another child was involved in a “deeply troubling pattern of escalating criminality, drug abuse and exploitation”, and was under the coercive control of an older drug trafficker.The court heard “grave evidence” about the third plaintiff, a girl who had been in care since birth and was vulnerable to sexual exploitation.“In each case, the court determined that special care was urgently required, yet each child was left waiting for the protection that the law had already deemed necessary,” the judge said. The judge granted the declaration sought on behalf of the plaintiff children that the agency was in contempt of court.