“Special Care as a Remedy of Last Resort” – Judicial Review Boundaries Clarified in JT (A Minor) v Child and Family Agency [2025] IEHC 316

1. Introduction

The High Court judgment delivered by Ms Justice Miriam O’Regan on 29 May 2025 in JT (A Minor) v Child and Family Agency settles important questions about the scope of judicial review over the Special Care Referrals Committee (“SCRC”) and the threshold for obtaining a special care order under section 23F of the Child Care Act 1991 (as amended). The applicant, a minor identified as JT, sought to quash the SCRC decision of 10 March 2025 that refused to recommend special care. JT argued that the decision was irrational and inadequately reasoned, whereas the Child and Family Agency (“Tusla”) maintained that special care is a measure of last resort and that alternative care options remained open.

Key Facts

• JT, living mainly with his mother who has substance-abuse difficulties, is allegedly involved with organised criminal elements, drug dealing, and vehicle theft.
• Three previous referrals for special care were made in 2024-2025; none resulted in an order.
• A District Judge dealing with criminal matters had recommended special care, but the SCRC on 10 March 2025 concluded that not all other care options had been exhausted.
• JT’s legal team sought judicial review, contending that the SCRC’s reasons were deficient and its conclusion irrational.

2. Summary of the Judgment

Ms Justice O’Regan dismissed the application. She held that:

• Section 23F establishes a sequential decision-making process; the SCRC’s role is expert and its determination is only susceptible to judicial review on conventional public-law grounds.
• Special care is “a measure of last resort”; the SCRC was entitled to find other options had not been fully explored or tried.
• The SCRC’s written decision, read with the referral documents before it, disclosed adequate reasons satisfying the common-law duty of fairness.
• There was material before the SCRC on which a rational decision could be reached; the court would not substitute its own view on the merits.
• Consequently, the orders of certiorari sought by JT were refused and costs were provisionally awarded to the Agency.

3. Detailed Analysis

3.1 Precedents and Authorities Cited

The judgment draws on a constellation of Irish and European decisions:

• CK v Child and Family Agency [2019] IEHC 635 – MacGrath J’s decision sets out the step-by-step operation of s 23F and the “real and substantial risk” test. O’Regan J relied heavily on CK for the proposition that satisfying s 23F(2) triggers further inquiries; it does not automatically oblige the Agency to seek a special care order.
• The Child & Family Agency v NL & Ors [2019] IECA 109 – Donnelly J (Court of Appeal) emphasised that special care orders amount to deprivation of liberty and must be for short duration, educational/therapeutic rather than punitive. This supports the “last-resort” principle reaffirmed in JT.
• GH v Tusla Child and Family Agency [2025] IEHC 263 – O’Higgins J surveyed case-law on the duty to give reasons. O’Regan J cited GH for the flexible, context-sensitive nature of that duty, stressing that what counts as adequate reasons varies with circumstances.
• DG v Ireland (App. No. 39474/98, ECHR 2002) – while not analysed in depth, the decision’s therapeutic rationale for detention of minors underpins the Irish statutory framework.

3.2 Legal Reasoning of the Court

1. Sequential Reading of s 23F.
   The court underscored that subsection (2) is only one stage; the Agency must proceed through consultation, a (possible) family welfare conference, and ultimately a determination under s 23F(7). Thus, the SCRC could still decide special care was not yet justified even if preliminary risk criteria were met.
2. Expertise and Margin of Appreciation.
   Echoing CK, the court acknowledged the SCRC’s specialised remit, cautioning against undue judicial intrusion. Judicial review concerns legality, rationality and procedural fairness – not the merits of child-care policy.
3. “Last Resort” Principle.
   By emphasising that deprivation of liberty must be a final measure, the court placed the burden on practitioners to prove that all realistic, less-restrictive alternatives have been tried or deemed demonstrably inadequate.
4. Reasons.
   The decision letter (though concise) referred to “other care options not exhausted”. When read with the 20 February 2025 referral – which catalogued fears rather than empirical trials of alternatives – a reasonable reader could discern the SCRC’s reasoning chain. Under the GH standard, this sufficed.
5. Irrationality.
   Applying the classic Wednesbury test, O’Regan J found the decision in the range of rational outcomes because the SCRC had some evidence (e.g. possible foster care, interim care orders, private residential settings) that had never been operationalised.

3.3 Likely Impact of the Judgment

The ruling is poised to influence both jurisprudence and practice:

• Judicial Review Strategy. Applicants seeking to overturn SCRC refusals will face a higher hurdle: they must point to a complete absence of factual material or a patent error of law. Mere disagreement with the committee’s assessment will not suffice.
• Operational Practice of Social Work Teams. The judgment signals that discounting alternatives “on paper” is inadequate. Social workers may have to actively pilot or otherwise concretely test mainstream placements before escalating to special care.
• Committee Decision-Writing. While the court accepted succinct reasoning here, the analysis highlights the benefit of explicitly listing the alternative placements considered. Future committees may expand their written decisions to reduce litigation risk.
• Statutory Interpretation of s 23F. The emphasis on subsection (7) as the decisive point brings clarity to the statutory architecture and will guide both practitioners and the bench.

4. Complex Concepts Simplified

• Special Care Order. A High Court order allowing Tusla to detain a child in a secure therapeutic unit for up to 3 months (extendable) to address severe behavioural risks. It constitutes a lawful deprivation of liberty.
• Section 23F Process.
  1. Assess risk (sub-s (2)(a)).
  2. Conclude mainstream or mental-health services insufficient (sub-s (2)(b)).
  3. Consult the child/parents unless not in the child’s best interests (sub-s (3)–(4)).
  4. Hold (or waive) a Family Welfare Conference (sub-s (5)–(6)).
  5. Make a formal determination on the need for special care (sub-s (7)).
• Judicial Review vs Appeal. Judicial review examines the lawfulness of the process, not the substantive merits. The court does not substitute its judgement for that of the administrative body unless illegality, irrationality or procedural impropriety is shown.
• Wednesbury Irrationality. A decision is irrational if it is so unreasonable that no reasonable decision-maker could have made it.
• Duty to Give Reasons. Public bodies must give affected persons enough information to understand why a decision was made and to consider challenging it. The extent of detail varies with context and the decision’s gravity.

5. Conclusion

JT (A Minor) v Child and Family Agency cements two intertwined principles: (1) special care orders are ultima ratio – the very last resort – and (2) courts will defer to the SCRC’s expert assessment unless the decision is legally or procedurally flawed. Social work teams must demonstrate that alternative care pathways have been genuinely exhausted, and litigants challenging a refusal must surmount the formidable Wednesbury threshold. The judgment brings welcome clarity to the operation of s 23F and will likely streamline both administrative practice and judicial scrutiny in Ireland’s special care jurisdiction.