L.M. v The Child and Family Agency (Approved)

Factual and Procedural Background

The Applicant is a minor with serious mental health and behavioural issues, having experienced neglect and multiple failed foster placements, ultimately requiring residential care. The Child and Family Agency ("CFA"), the statutory body responsible for the Applicant's care under the Childcare Act 1991 (as amended), had determined through its National Special Care Referrals Committee that the Applicant requires special care. However, the CFA delayed making the formal determination and subsequent application to the High Court for a special care order, citing lack of available placements and resource constraints, including staffing and regulatory compliance concerns. This delay prompted the Applicant to seek judicial review, challenging the lawfulness of the CFA's deferral policy. The case was designated a lead case among several pending applications raising similar issues.

Legal Issues Presented

1. Whether the lack of available placements or resources permits the Child and Family Agency to defer its statutory duty to make a determination under section 23F(7) of the Childcare Act 1991 that a child requires special care.
2. Whether the CFA may lawfully delay applying to the High Court for a special care order under section 23F(8) due to the unavailability of a placement.
3. Whether the relevant statutory provisions are unconstitutional if interpreted as permitting such deferral or delay.

Arguments of the Parties

Applicant's Arguments

• The statutory wording of sections 23F(7) and (8) of the Childcare Act 1991 is mandatory, requiring the CFA to make a determination and apply to the High Court without deferral.
• There is no statutory provision allowing deferral of these steps due to lack of placement availability.
• Reliance was placed on two earlier High Court decisions which held that the CFA’s policy of deferral is unlawful.
• The Applicant sought declarations and orders mandating the CFA to fulfill its statutory duties forthwith.

Respondent's Arguments (Child and Family Agency)

• The application was moot as the Applicant was by then subject to a special care order and placed in special care.
• The inability to place the Applicant was due to factors beyond the CFA’s control, including limited number of special care units, physical and staffing capacity constraints, and regulatory requirements imposed by the Health Information and Quality Authority (HIQA).
• It is unsafe and unlawful to operate special care units without adequate staffing and regulatory compliance.
• The CFA expressed concerns about court orders it cannot implement, exposing it to potential contempt proceedings.

Notice Parties' Arguments

• The mother of the Applicant adopted the Applicant’s submissions but noted the significant delay between the committee decision and placement.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory framework under the Childcare Act 1991, focusing on sections 23F(7) and (8), which impose mandatory duties on the CFA to make a determination that a child requires special care and to apply to the High Court for a special care order. The Court emphasised the ordinary and natural meaning of the statutory language, particularly the use of "shall," indicating a mandatory obligation.

The Court considered the CFA’s arguments regarding lack of resources and placement availability but held that these factors do not relieve the CFA of its statutory duties. The Court relied heavily on two prior High Court decisions which had already rejected the CFA’s policy of deferring determinations or applications due to resource constraints.

The Court further addressed the issue of mootness, noting that while the Applicant was eventually placed in special care, the case was one of many raising the same issue, and thus the Court exercised its discretion to decide the matter to provide clarity and guidance for future cases.

Ultimately, the Court concluded that the CFA’s deferral policy is unlawful and that the statutory duties must be discharged without delay, prioritising the best interests of the child over resource limitations.

Holding and Implications

Holding: The Court declared that the CFA’s decision or policy to defer making a determination under section 23F(7) due to lack of placement availability is unlawful. Further, the CFA’s failure to apply to the High Court for a special care order under section 23F(8) for the same reason is unlawful.

Implications: The decision mandates that the CFA must comply strictly with its statutory obligations regardless of resource or placement constraints. This ruling removes any legal justification for deferring determinations or applications for special care orders based on lack of resources. While no new constitutional precedent was established, the decision clarifies the mandatory nature of the CFA’s duties and will influence similar pending cases. The ruling underscores the primacy of the child’s best interests over administrative or resource difficulties.