Child and Family Agency v D.A & Ors (Approved)

Factual and Procedural Background

This opinion concerns periodic statutory reviews conducted by the High Court under section 23(I) of the Child Care Act 1991 (as amended) regarding children subject to special care orders. The Court reviewed the situation of five children for whom special care orders had been granted by the Court upon application by the Child and Family Agency but who had not been placed in special care units due to a systemic crisis in the availability of beds. The crisis arises from undercapacity in the three special care units in the State, primarily caused by significant staffing shortages and retention difficulties. The special care orders in question are for a maximum of three months, extendable up to nine months, and the Court has repeatedly heard evidence and submissions concerning this ongoing issue. The Court convened hearings on multiple dates in mid-2024, receiving evidence from senior officials of the Child and Family Agency and relevant government departments, as well as considering the circumstances of the children affected and the systemic causes of the crisis.

Legal Issues Presented

1. Why are special care orders granted by the High Court on application of the Child and Family Agency not being given effect?
2. What are the causes of the failure to place children in special care units despite Court orders?
3. What efforts are being made to resolve the crisis in special care provision?
4. Can the crisis be resolved, and if not, why?

Arguments of the Parties

Applicant (Child and Family Agency) and Supporting Departments

• The Child and Family Agency identified staffing shortages as the core cause of undercapacity in special care units, with difficulties recruiting and retaining qualified social care workers.
• Multiple initiatives have been undertaken to improve working conditions, including training, support, redeployment, graduate recruitment, and engagement of recruitment firms.
• The Agency has repeatedly sought an increase in the special care allowance to improve pay and attract staff; business cases were submitted in 2019, 2020, and 2023 but were rejected or not advanced by the Department of Public Expenditure and Reform (DPER).
• The Agency emphasized the need for a whole-of-government, interagency approach, recognizing that additional resources, legislative and policy changes, and collaboration are required to address systemic issues.

Department of Children, Equality, Disability, Integration and Youth

• The Department has policy and legislative oversight and supports the Child and Family Agency’s business cases but has been unable to secure sanction for increased pay allowances from DPER.
• The Department acknowledged the statutory obligations and the failure to meet them in respect of children currently without special care beds.
• While recognizing retention and recruitment issues, the Department viewed pay as one factor among many, emphasizing challenging working conditions and other systemic issues.
• The Department stated that the matter was being taken seriously and that ongoing engagement with the Agency was a priority.

Department of Public Expenditure, National Development Plan Delivery and Reform

• DPER’s focus was on public sector pay policy constraints and the potential for "contagion" effects across the public pay system.
• DPER rejected the increase in the special care allowance on grounds including cost implications and public service pay policy.
• The Department emphasized that pay was not the sole or primary cause of the crisis, pointing instead to the lack of appropriate step-down placements and safety in the workplace.
• DPER appeared to have decided against sanctioning the pay increase early in the process and sought justifications consistent with that position.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the statutory obligation to review children subject to special care orders at least every four weeks and noted that the current crisis results in non-compliance with these orders due to systemic undercapacity in special care units. The primary cause identified is a severe shortage of qualified and retained staff, exacerbated by challenging working conditions including violence and harassment, and insufficient pay.

The Court analyzed evidence from senior officials of the Child and Family Agency and government departments, noting that despite numerous initiatives to improve recruitment and retention, staffing levels remain inadequate. The Child and Family Agency has repeatedly sought increases in the special care allowance to improve pay, but these requests have been refused or stalled primarily due to concerns about public sector pay policy and potential contagion effects.

The Court found the Department of Public Expenditure’s position—that pay is not the key issue—unpersuasive, concluding that pay is a core factor in recruitment and retention problems. While other issues such as lack of appropriate step-down placements and difficult working conditions are relevant, they do not diminish the critical importance of adequate pay.

The Court further considered the broader systemic context, including the need for interagency cooperation and whole-of-government approaches to address exploitation, mental health, and disability services for children in special care. However, it emphasized that these broader policy issues do not excuse the failure to comply with existing statutory obligations and Court orders.

Finally, the Court noted the distress and risk to the children left without placements, highlighting the urgency of resolving the crisis and the unacceptable nature of ongoing breaches of Court orders.

Holding and Implications

The Court’s final decision is that there is a significant and ongoing crisis in the special care system caused primarily by inadequate staffing due to poor recruitment and retention linked to insufficient pay and challenging working conditions.

The Court emphasized that an increase in the special care allowance is essential and a core requirement to improve pay and conditions, thereby aiding recruitment and retention of staff. While it acknowledged that pay alone may not fully resolve the crisis, it rejected the view that pay is a minor factor, asserting that without pay improvements other initiatives are unlikely to succeed.

The Court recognized that the problem and its resolution lie with the Child and Family Agency and the relevant government departments, which must urgently cooperate to implement effective solutions. The Court noted no new directions or orders against the Agency but stressed the unacceptable nature of the current non-compliance with Court orders and statutory duties.

There are no new precedents set; rather, the Court’s observations underscore the critical need for immediate executive and legislative action to remedy the crisis and ensure compliance with existing legal obligations for the welfare of children in special care.