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 THE EASTERN HEALTH BOARD 
AND BY ORDER
THE MINISTER FOR HEALTH AND CHILDREN
			RESPONDENTS

			No. 93 JR/95
BETWEEN
D. B. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND S. B.)
			APPLICANT
AND
THE MINISTER FOR JUSTICE THE MINISTER FOR HEALTH THE MINISTER FOR EDUCATION IRELAND THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD
			RESPONDENTS

			255 JR/97
BETWEEN
M. B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M. B.)
			APPLICANT
AND
THE MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD
			RESPONDENTS

			487 JR/98
BETWEEN
G. D. (A MINOR SUING BY HIS GUARDIAN AD LITEM 
AND NEXT FRIEND K.  O’D.)
			APPLICANT
AND
THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION AND SCIENCE THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL
			RESPONDENTS

			139 JR/95
BETWEEN
G. D.   (A MINOR SUING BY HIS FATHER AND NEXT FRIEND A. D.)
			APPLICANT
AND
THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY GENERAL
			RESPONDENTS

			396 JR/98
BETWEEN
P. H. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND R. F.)
			APPLICANT
AND
THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY GENERAL
			RESPONDENTS
AND
BY ORDER OF THE COURT
K. H.
			NOTICE PARTY

			452 JR/99
BETWEEN
B. J. (A MINOR SUING BY HIS GUARDIAN AD LITEM R. F.)
			APPLICANT
AND
THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION AND SCIENCE THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL
			RESPONDENTS

			269 JR/97
BETWEEN
T. L. (A MINOR SUING BY HER GUARDIAN AD LITEM C. O’D.)
			APPLICANT
AND
THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL
			RESPONDENTS

			133 JR/97
BETWEEN
S. T. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND D. T.)
			APPLICANT
AND
THE MINISTER FOR EDUCATION AND SCIENCE IRELAND AND THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD
			RESPONDENTS

JUDGMENT of Mr. Justice Kelly delivered on the 25th day of February, 2000
INTRODUCTION

	“Children are citizens and persons within the meaning of those terms as used in the Constitution and the Law.    They have added rights given to them by the Constitution and by Law for their well being and protection during infancy.   The persons primarily responsible for ensuring their well being and protection during infancy are their parents.    As part of their well being and protection children are entitled to, and parents are under an obligation to provide within their means for, an education to qualify their children for such reasonable standard of life as adults as is clearly within their competence if given appropriate education”.

	That statement was made by Lynch J., in Director of Public Prosecutions -v- Best (Supreme Court unreported 27th July 1999).
	Sadly, the well being and protection of some children is not or not adequately attended to by their parents.   This can arise for a variety of reasons.   At one end of the scale there are parents who are simply indifferent or feckless and who are parents in name only.   At the other there are parents who, despite their very best efforts, are simply unable to provide for the well being and protection of their children.    Sometimes, this occurs as a result of social, personal or economic circumstances largely outside the control of the parents.   Sometimes it arises because the children are being  reared in circumstances which scarcely justify the description of a 'family'.   Sometimes it arises because the children are suffering from personality disorders which render it impossible for parents to cope with or control them.   Any judge in this or any other court, who regularly has to deal with cases of the type in suit, can attest to the almost infinite number of circumstances which can result in the necessity for intervention by the State in some manifestation or another so as to protect the well being of children.    Very often, the existing statutory regime provides sufficient powers to enable those needs to be addressed in an adequate way.    There is, however, a not insubstantial number of cases where the statutory provisions are inadequate or non-existent.   In such cases, recourse has been had to this Court.  That is what has happened in the case of all of these Applicants.  The Court has to attempt to fill the vacuum which exists by reason of the failure of the legislature and executive.  The Applicants have relied upon the rights which they have as persons and citizens pursuant to the provisions of the Constitution.    As is clear from the quotation from the judgment of Lynch J., the very fact that such Applicants are children means that they have added rights given to them by the Constitution for their well being and protection during their minority.
	The first case in which these constitutional rights were successfully prayed in aid by an Applicant in circumstances where the existing statutory regime was unable to cater for his welfare was that of F.N. -v- The Minister for Education (1995) 1 I.R. 409.    In that case, Geoghegan J., had to deal with a minor who required both containment and treatment so that his welfare might be attended to.    Geoghegan J., summarised his decision in the following terms:-

	“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 s. 58, sub-s. 4 of the Act of 1908 or otherwise, suitable arrangements of containment with treatment for the applicant”.

	That judgment was delivered on the 24th March 1995.    It made clear the State’s constitutional obligation to F.N.    The state authorities could have been in no doubt of their obligations in that regard.
	It is also clear from the judgment of Geoghegan J., that in the circumstances he did no more than make a declaration as to the entitlement of F.N. to the appropriate treatment.    He did not proceed to make any further Order.   That was done, no doubt, in recognition of the separation of powers which exists in our system of Government.    The judicial arm of Government respects both the legislative and executive branches of Government and their respective functions.   
	This Court was entitled to expect that once apprised of the constitutional obligation owed to F.N. the State would take the necessary steps to have the matter remedied. Not merely was the Court entitled to have such an expectation but it was obliged to ensure that that expectation would be realised “as soon as reasonably practicable” (per 
Geoghegan J.,).		

THE STATE’S RESPONSE 
	F.N.’s case was not an isolated one.    At about that time and in the succeeding years, there have been many cases before this Court dealing with children whose circumstances require that the State should provide suitable arrangements of containment with treatment.    Whilst the Court in each of those cases has not made formal declarations of the type made in F.N.’s case, the only reason that it has not done so is because in such cases, the State recognised that these children were entitled to rights of a type similar to those declared in favour of F.N.
	As evidence of such recognition, within seven days of the delivery of judgment by Geoghegan J., he was told of the proposals of the Minister for Health for the provision of residential places, not merely for F.N., but also for others like him. There was no reason then to believe that these proposals would not be implemented in a timeous fashion.
	It was to the credit of the Department of Health that it faced up to its responsibilities, not merely to F.N., but also to other children who were or would in the future be in a position similar to him.    The information placed before Geoghegan J., dealt with the overall plan which was to be put into operation.   This was a clear recognition by the State authorities that, although the declaration had been made only in respect of F.N.’s entitlements, similar entitlements were owed to other minors in like circumstances.    This approach is in marked contrast to the late-in-the-day and remarkable submissions made to me by leading counsel on behalf of the Minister for Health and Children (the Minister) and other State agencies on the question of locus standi to which I will return later in this judgment.
	For reasons unknown to me many of the judicial review applications brought on behalf of children in difficulty have found their way into my list.   By April of 1997 I was concerned at the apparent lack of progress being made in the provision of places of the type contemplated by Geoghegan J.  This manifested itself in places not being available to accommodate children in crying need of such facilities.  In extreme cases I have been forced to send innocent children to penal institutions for their own safety because appropriate accommodation elsewhere has not been provided.  (See my judgment in D.G. -v- Eastern Health Board  affirmed by the Supreme Court at 1997 3 I.R. 511).  Without any objection on the part of the State, I directed a hearing to take place so that I might be acquainted with how the plans put before Geoghegan J., were proceeding.    During the course of that hearing, it emerged for the first time that the proposals given to the court in March 1995 had been departed from without that fact ever being made known to the court.    I expressed my dissatisfaction, not merely with that but with the evidence which I heard concerning what I subsequently described as “unseemly and wasteful wrangles going on for months between various departments as to who would have responsibility for the care of the children in question” (see my judgment in D.B. -v- The Minister for Justice 1999 1 I.R. 29 at 35).
	The judgment in that case recounts the unsatisfactory history of the State’s attempts to meet its obligation to these children.    It is not necessary for me to repeat that history here in detail.   This judgment should, however, be read in the light of my findings in D.B.’s case because it provides a factual and legal backdrop against which the current application must be viewed.
	I said, at page 43:-

	“As I have already stated, there is a need for 60 places of either containment or high support to deal with minors of the type involved in this litigation.    At present 18 such places exist.    The full complement of places will not now be achieved until at best the end of the year 2001.
	That time scale alone would certainly suggest that the response on the part of the Minister has been neither proportionate, efficient, timeous nor effective.   A period of more than six years will have passed since the judgment of Geoghegan J., before accommodation is provided for all of the minors who require it.    Young people who are entitled to the benefit of the declaration made by him will have long since become adults without having had the State discharge the obligations which it owes to them.
	That situation is bad enough but when one examines what has been happening over the last few years, one cannot but be left with a sense of dismay.    It is no exaggeration to characterise what has gone on as a scandal.    I have had evidence of inter departmental wrangles over demarcation lines going on for months, seemingly endless delays in drafting and redrafting legislation, policy that appears to be made only to be reversed and a waste of public resources on, for example, going through an entire planning process for the Portrane development only for the Minister to change his mind, thereby necessitating the whole process being gone through again.
	The addressing of the rights of the young people that I have to deal with appears to be bogged down in a bureaucratic and administrative quagmire.   
	I have come to the conclusion that the response of the Minister to date falls far short of what this Court was reasonably entitled to expect concerning the provision of appropriate facilities for young people with difficulties of the type with which I am dealing.”

	In the D.B. case I went on to take the unusual step of granting an injunction compelling the Minister to complete two developments, one at Lucan and the other at Portrane within the time scale specified by departmental officials in evidence before the Court.
	No appeal was taken against my judgment in D.B.    All of the evidence that I have is that, to date, the injunction is being complied with to the letter.    No application has been made to vary it in any way.   The development of the two facilities covered by it is proceeding precisely in accordance with the time scale which was given to me in evidence and which is contained in the injunction.    The injunction has been effective in securing a punctilious and punctual adherence to the schedule put before me in evidence for the provision of these two facilities.

THE POSITION SUBSEQUENT TO THE DECISION IN D.B.
	D.B. was decided on the 29th July 1998.    The facilities directed to be provided are largely but not exclusively to cater for the Eastern Health Board area.    But children with difficulties of the type in suit are not confined to the greater Dublin conurbation.    This fact was also recognised by the State authorities and so in the various plans that were put before me from time to time in review hearings I was apprised of the facilities envisaged for applicant children with addresses outside the Eastern Health Board catchment area.  Indeed, there is an interrelationship between children in the Eastern Health Board and other health board areas since a shortfall of places in one area may on occasions be catered for in another area.
	I indicated that if the Court was to keep faith with its obligation both to such children and the Constitution, it would be necessary for it to be told of the State’s plans to provide for such children and the time scale within which it would be done.    At no stage prior to the present hearing has the State ever raised any objection to this course being followed.     Indeed, until the hearing with which this judgment is concerned, there was full co-operation on the part of the Minister in apprising the court of the plans on a national basis and of dealing with them without regard to technical points on locus standi being raised.
	Since the decision in D.B. there have been of the order of four hearings in which the State authorities acquainted me with their plans.

The Plans
	In October, 1998 the Department of Health and Children established what was called a senior managers' resource group.  That group was representative of all eight health boards in the State.  It was set up to review the need for special residential care provision nationally and to make recommendations on the provision of an integrated service.  Such an approach makes perfect sense and seeks to deal with the problem on a national basis.  I was apprised of the setting up of this group at a hearing which took place in December, 1998 and January 1999 in the case of the first named Applicant.  In the light of the information which I was given on those occasions I directed a further hearing to review progress to take place in April, 1999. 
	At the April, 1999 hearing I was told that the senior managers' resource group had met on three occasions since the preceding hearing.  I was told that that group was recommending the provision of an additional 40 high support places in the seven health boards outside the Eastern Health Board area (48 places had already been identified as being required in the Eastern Health Board area and were to be provided in the Lucan and Portrane facilities, the subject of the earlier injunction).   I was also told that each health board had undertaken a review of the need for further high support residential places identifying the necessity to provide an additional 40 places for children.  These 40 places were broken down by region.  10 were to be provided in the Northern region and 30 in the Southern region.  They were to be distributed between the various health boards in each of those regions.  I was told that the estimated time frame for completing the development of all 40 places, subject to suitable premises being identified and the availability of staff, was 24 months.  In other words by April, 2001 all 40 places ought to be available. 
	In addition, I was given evidence that it was planned to have an additional 18 places which would come on stream in 1999.  Eight of these were to be provided in the Southern Health Board at a premises known as Bessboro and ten were to be provided in the Mid Western Health Board at an existing facility.  These eighteen places were to be in operation by the end of 1999.
	I was encouraged by the evidence which I was given in April, 1999.  It appeared to demonstrate concerted action on the part of the State which would bring about a solution to the problem.  I was impressed by the testimony given to me by the witness from the Department of Health and Children.  I accepted that evidence, both as to the efforts which were being made and the time scale within which it was expected these facilities would be provided.  I took the view that whilst the Court continues to be confronted on an almost daily basis with trying to find accommodation for problem children, the time scales which were indicated to me were in all the circumstances reasonable.  It was suggested to the Court that in these circumstances a lengthy adjournment should be granted.  I acceded to that application.    I was not anxious to divert public resources into Court hearings when they could be better employed in providing the facilities for the children in need.  I therefore adjourned the matter for eight months and indicated that I would conduct a further review in December, 1999.  No objection was raised to this course by any of the parties to the litigation.  	
	In granting this lengthy adjournment I hoped that the review hearing scheduled for December, 1999 would be short because the progress indicated in April of that year would be maintained.  This hope was unfortunately, misplaced.  
	In April I was told that the eight places in Bessboro would be open by late 1999.  That will not now occur until February, 2000.  The facilities in the Mid Western Health Board which were to be available in November/December, 1999 will not now open until the second part of 2000.  The Moyhill premises will open in July, 2000 and the Elm House premises will be ready by the Autumn of 2000.  All of the facilities therefore, that were scheduled to be in operation in 1999 will not now be available until well into the current year. These delays, although significant, would not of themselves suggest to me that further intervention by the Court in the form sought in the present application would be necessary.  
	I turn then to consider the 40 other places contemplated in the testimony which was placed before the Court in April, 1999.  Ten of these places were to be provided in the Northern region.  In fact, in April 1999 I was told that there would be two six bed high support units provided in Castleblayney and that they would be opening in the middle of 2000.  At the December review I was told that these units would not now be opening until the end of 2000.  I will consider in a moment the reasons for this delay.  At a resumed hearing in January, 2000 I was told that these units would not now be opening until the end of 2001.
	The remaining 30 places were to be provided for the Southern region.  Eight of these were to be provided by the Southern Health Board.  In fact, it was suggested that this should be reduced to seven consisting of two extra female places to be provided in an existing unit and five additional high support units for boys.  When I heard evidence in April, 1999 no time scale was provided for the provision of these places.  At the December, 1999 hearing I was told that it was hoped that the two extra places would be available by the end of February 2000.  No date was given in respect of the five high support places for boys.  In the January, 2000 hearing evidence was given that the two extra places for girls would not now be available until July, 2000 and the five bed high support unit for boys would be open in the Summer of 2000.  
	In the April, 1999 hearing ten places were attributed to the Mid Western Health Board.  In fact, at that hearing it was suggested that there would be two five bed units, one in Co. Clare and one in Co. Tipperary.  In addition a five bed special secure regional residential facility was to be provided.  At the December hearing the position was that insofar as the Tipperary development was concerned planning permission was to be sought by January, 2000 and the building was to be completed in early 2001.  Insofar as the  high support unit in Clare was concerned negotiations for the purchase of the site were at an advanced stage and the unit would be ready by 2001.  However, at the January, 2000 hearing I was told that the purchase for the Clare unit had fallen through.
	Insofar as the South Eastern Health Board is concerned, originally twelve places were to be provided there.  This was set out in the January, 1999 report.  By April 1999 I was told that ten places would be available and that they would become so by the end of 1999.  By December an additional seven high support places had been provided by the South Eastern Health Board and the board planned to have the remaining three places available by May 2000.
	From the above it was clear that on no occasion has there been adherence to the time scales indicated to me in January and April of 1999.  In each case the provision of the facilities has been deferred further and further.  I am not so unreasonable as to recognise that on occasions there may be excusing circumstances present which are outside the control of the relevant government department.  Industrial disputes, planning objections, unforeseen site difficulties and a variety of other problems can all give rise to what I may describe as non-culpable delays.  But I am greatly concerned at delays which have taken place and which were wholly within the control of the relevant State authorities. 

AN EXAMPLE OF CULPABLE DELAY 
	Perhaps the most remarkable of such delays has occurred in the case of the Castleblayney premises.  That was a former army barracks and was to be transferred to the relevant health board with a view to it being converted into a high support unit.  Originally I was told that the places there would become available in mid 2000.  By the time of the December, 1999 hearing I was told that at best these places would not become available until the end of the year 2000.  By the January, 2000 hearing I was told that a further year would now be required in order to make this premises available for the high support units.   So the estimated time has been elongated from mid 2000 to early 2002.

Why this delay?
	The premises had to be transferred from the ownership of the Department of Defence to the health board.  I was told that the Department of Health and Children was facilitating that transfer.  First, it is clear there was a dispute about the consideration to be paid.  This argument as to how much one State body was to pay another apparently went on for months.  The next problem was that the Department of Defence had an arrangement with the Department of Finance to the effect that the proceeds from the disposal of army sites or at least a percentage of them would go back to the Department of Defence for the development of other barracks.  The Department of Defence indicated that it would prefer the transfer to take place in 2000 rather than 1999.  This was because of issues relating to appropriations.  This is precisely the sort of bureaucratic haggling I had already criticised in my judgment in DB and which I hoped I would never have to comment on again.  Worse however, was to come.  Whilst all this haggling was going on nobody had the presence of mind to cause a planning application to be made in respect of the development.  An application for such a permission would not have required the actual transfer of the land to have taken place prior to its being made. 
	The above information emerged at the December 1999 hearing.   When I resumed in January 2000 I discovered that not merely had no planning permission ever been sought, but in fact, no architect's report had ever been obtained in respect of the premises until subsequent to the December, 1999 hearing.  That report when procured, demonstrated that the premises would require much more major refurbishment than was originally thought hence the addition of a further twelve months to the time estimate given as recently as December 1999.
	  It is in my view astonishing that evidence was given to this Court in April, 1999 indicating that the premises would be in use by the middle of 2000 in circumstances where not even the most elementary step of obtaining an architect's report, never mind planning permission, had been attended to.  The net result of all of this is that these places will not now be available at the earliest until the beginning of 2002.  		
	I should record that following the hearing in December, 1999 a flurry of activity took place.  I received evidence of that and it is only right to record that it occurred, but I cannot help thinking that the only reason that it did so was because of the extreme dissatisfaction which I expressed in December, 1999 at the lack of progress being made.
	I wish to make it clear that I accept the bona fides of all of the agencies and personnel who are attempting to deal with these problems.  But the presence of bona fide good intentions counts for little if results are not being achieved which go to address the rights of these young people in a timeous fashion. 

THE PRESENT APPLICATION
	 Following the hearing in December, 1999 I indicated that such were the culpable delays which had taken place that I was of opinion that prima facie there was an entitlement to injunctive relief so as to compel the Minister to proceed to provide the places in respect of which I had been given evidence.  At that stage there was mooted for the first time a suggestion on the part of the Minister that the then Applicant before the Court, namely T.D. would not be entitled to such an order because he was not then in need of such a place.  His case had had to be adjourned generally because no place could be provided for him.  In the light of this I suggested that the application for injunctive relief if it was sought to be pursued should be brought not merely in the name of T.D. but of all of the other Applicants who are in need of such facilities.  Thus the present application is brought in the name of many of the Applicants who have figured before this Court on a regular basis.  
	As I indicated much activity occurred between the December, 1999 and January, 2000 hearings and whilst that is to be lauded it did not produce any lessening in the much extended time scales and in fact, in the case of Castleblayney the estimated time for the provision of those facilities was extended for a further twelve months.
	The present application seeks a series of injunctions directing the Minister to take all steps necessary and to do all things necessary to facilitate the building and opening of secure and high support units in places as follows
	(a)	Two six bedded high support units, with ancillary educational and recreational facilities, at Castleblayney in the County of Monaghan on or before the 31st January, 2002.
	(b)	A five bed high support unit at Moyhill in the County of Limerick on or before the 31st July, 2000.
	(c)	A five bed high support unit at Elm House in the County of Limerick on or before the 31st October, 2000.
	(d)	A five bed high support unit in the County of Tipperary on or before the 30th April, 2001.
	(e)	A five bed high support unit in the County of Clare on or before the 31st July, 2001.
	(f)	A five bed secure unit for boys in the Mid Western Health Board region on or before the 31st December, 2001.
	(g)	An additional two high support places in the Waterford region on or before the 31st May, 2000.
	(h)	An additional high support place in the Tipperary region on or before 31st May, 2000.
	(i)	An additional two high support places for girls in the Gleann Alainn Unit in Co. Cork on or before the 31st July, 2000.
	(k)	A five bed high support unit for boys in the Southern Health Board region on or before the 31st August, 2001.

	I should make it clear that the number of units, their location and the dates which are set forth in each of these proposed injunctive reliefs are those specified by the officials who gave evidence before me on behalf of the Minister.  In other words the injunction seeks to do no more than to compel the Minister to adhere to the latest plans which have been put before this Court within the time specified.   
	On a number of occasions in the past I was assured of the good intentions and commitment of the relevant departments to provide these places within the shorter times then specified.  In circumstances where those times were subsequently extended for reasons of culpable slippage, I invited Counsel appearing for the State to give a formal undertaking to the Court so as to ensure future compliance.  I made it clear that if such an undertaking was given I would not be unsympathetic to an application to vary such an undertaking in the event of circumstances outside the control of the relevant Government departments giving rise to unanticipated delay.  Indeed, Counsel for the Applicants made it clear that he would not be found wanting in adopting a reasonable approach to such an application.  Despite this invitation and these assurances no undertaking was forthcoming and I was informed in evidence that it was decided at the highest level in the Department of Health and Children that as a matter of policy no such undertaking would be given to the Court.

CONCLUSIONS ON DELAY
	On the basis of the evidence that I have heard I have come to the conclusion that the Department of Health and Children has not proceeded in a manner which could reasonably be expected of it so as to address the quite scandalous situation  which has now obtained for years.  Whilst I do not deny for a moment that substantial progress has been made the plain fact is that none of the time scales which were given in evidence before this Court as recently as April of 1999 and even December 1999 will now be met.  In every case they have been extended further and further into the future.  Whilst I quite understand that matters may occur outside the control of this department I have to record that the time which has been lost on many occasions is as a result of manifest inefficiency.  The worst example of that is quite clearly the Castleblayney premises.  Not even the most rudimentary assessment of that premises had been made when evidence was given to me that it would be in operation by the middle of the year 2000.  It will not now be in operation for at least 18 months thereafter.  This Court is entitled to expect that in any matter, but particularly in one so serious as the constitutional rights of children, accurate evidence would have been given to it.  The giving of accurate evidence carries with it the obligation on the part of the State to ensure that all reasonable enquiries are carried out before time scale estimates are given.   The Court is also entitled to expect, particularly having regard to the observations already made by it in the case of D.B., that Gilbertian bureaucratic haggles of the type which I have mentioned would play no part in delaying the addressing these children's rights.  Reasonable progress has not been made. 
	In the light of these findings I must now turn to the submissions which have been made concerning the injunctive relief sought.

LACK OF SPECIFICITY
	It has been suggested by Counsel for the Minister that an injunction of the type sought here should not be granted because it would not be sufficiently specific.  
	There is a hollow ring to this submission.  An injunction in precisely the same form was granted against the same Minister concerning the Lucan and Portrane facilities in July, 1998.  No appeal was taken against that decision.  Furthermore, the decision does not appear to have created any difficulties for the relevant Minister and it is noteworthy that these two facilities are the only ones in respect of which the time scales given to the Court have been met.  In the light of this situation it is difficult to see how this submission came to be made.  Nonetheless I must deal with it.  Reliance was placed by Counsel for the Minister upon the decision of Murphy J. in the case of Bula Limited and Ors -v- Tara Mines and Ors. [1987] IR 95.  There the injunction claimed sought to direct

	"The first named Defendant, its servants or agents, to meet with the Plaintiffs, their servants or agents at such times and with such frequency as may be necessary for the purpose of discussing what arrangements may be made between the first named Plaintiff and the first named Defendant as regard the use of the first named Defendant's facilities in the exploitation of the mineral assets of the first named Plaintiff and for the purpose of discussing such other proposals as may be put forward by any party with a view to ensuring that the said mineral assets and the mineral assets the subject matter of the lease dated the 19th September, 1975 between the last named Defendant's predecessor in Title of the first part, the Minister for Finance of the second part and the first named Defendant of the third part, are exploited in the most efficient and the most economical manner with consequent benefit to all concerned."
	 
	Given the form in which that injunction was sought it is small wonder that the Court refused it.  Murphy J. asked the following pertinent question

	"What would the defendants have to do to comply with an order in those terms?  Would attendance at one or two meetings suffice?  Must they actively participate in discussions at such meeting?  Would they be entitled to adopt negotiating positions in which they would not, in the first instance at any rate, put forward their best proposals?   Above all could it happen that the Court would be required to test the sincerity of the defendants in their purported compliance with the order?"

	In my view the Order sought here is in radically different terms to that which was sought in the Bula case.  The injunction here spells out no more than what the State has already agreed will be done and merely requires the Minister for Health and Children to abide by the evidence already given to this Court - dictum meum pactum.  I do not think that there can be any difficulty on the part of the Minister knowing precisely what is required of him.  He is required to do as he says.  I have already made it clear that in the event of unforeseen difficulties outside his control being encountered an application can be made to the Court with a view to bringing about a variation to the Order.  
	The strongest case against this submission is of course the earlier order made in the D.B. case which has not given rise to the slightest difficulty on the Minister’s part either in knowing what is required of him or in doing it.

LOCUS STANDI
	It was submitted to the Court by Counsel for the State authorities that the Applicants have no locus standi to obtain the relief sought.   It is said no direct benefit will accrue to these individuals as a result of the grant of the relief.  
	I was most surprised to hear such a submission coming from Counsel for the Minister in the light of the attitude adopted by that Minister since within a week of the decision of Geoghegan J.   All plans put before the Court have been with a view to dealing with the position not on a piecemeal case by case basis but rather by addressing the needs nationally.  This submission was a radical departure from that approach.  
	I pointed out to Counsel and he accepted the practical difficulties that would be involved from his client's point of view if the piecemeal approach were taken.  If an injunction is to be granted in each individual case then the Minister may be faced at any one time with a series of orders which will have to be complied with in the short term and which may seriously put out of kilter his overall plans created on a State wide basis.  Although the reality of that difficulty was accepted nonetheless the Minister persisted to make this argument.  It seems to me to be an argument which if successful will create more difficulties for the Minister than he already has.  Nonetheless I must consider it on its merits and I now proceed to do so.
	Amongst the witnesses who gave evidence before me was Mr. Ruairi O’Cillin a divisional inspector in the Department of Education and Science.   He has unrivalled experience in this area and attends court in practically every case involving children at risk.  In the past I have paid tribute to his dedication and expertise and am happy to do so again.   He has been of invaluable assistance to the court in attempting to place children.   
	In the course of his direct examination he outlined the position concerning the named applicants.   Counsel for the Minister then proceeded:-

	“Q. 152
	In relation to the various persons mentioned, how many of them would be expected to avail of any of the facilities in respect of which injunctions are sought before the court today?
	A.	I will just go through them again. (reading notes) All of them.
	Q. 153
	In practical terms, is the absence of the facilities sought before the court today something which impacts on the way in which they can be dealt with now?
	A.	For some of them it would, yes”

	In the course of cross examination he said that in the last year as many as five children have been detained in Oberstown Detention Centre on foot of orders of this court.   He was asked:-

	“Q. 164.
	What is the reason that they would be there on foot of High Court orders?
	A.	Because there was not a suitable alternative placement available for 		them.
	Q. 165.
	In virtually every one of those cases would a suitable alternative have been a form of high support or secure unit?
	A.	It would, indeed, my Lord.
	
	Q. 166.
             	Is the only reason why they were in there in a criminal facility, if I might put it that way, or primarily a facility, was because there was nowhere else to put them?
	A.	That would be correct, my Lord.
	Q. 167.
	Has that phenomenon, in your experience, been going on for a number of years?
	A.	It has, indeed, my Lord.
	Q. 168.
	Would it be fair - I know you only go back so far with dealing with this problem, but would it be fair to characterise it that it has been going on since the F.N. case at least?
	A.	It has, indeed.
	Q. 169.
	And probably predated that?
	A.	It would have been predated, because there would have been regular use of Section 54(8) of the 1908 Act for placement of children who were not offenders in Industrial Schools.
	Q. 170	
	The same phenomenon was there, albeit being dealt with in a different way?
	A.	It was, yes”

	He then indicated that he was familiar with the senior managers' group only by hearsay.   He did, however, agree with the assessment of that group as to the number of places required.    He was then asked:-

	“Q. 175
	Would you accept the view that they are places which are needed now?
	A.	Yes I would.
	Q. 176
	Is it possible to have a satisfactory resolution of this problem without putting in place those places which have been indicated by the senior manager’s group?
	A.	I do not think it is possible to have a satisfactory outcome, no, my 		Lord.
	Q. 177
	Do is make any sense to look at this in the context of particular areas or must you look at it as a national problem?
	A. 	I think it has to be looked at in both contexts.    There would not be much point, for example, in building a Ballydowd and Portrane in Donegal, a 48 bedroom unit in Donegal where the need is here.”

	Finally, the following evidence was given by the witness:-

	“Q. 182
	Mr. O’Cillin, would it be fair to say that each in their own way has suffered some damage as a result of the fact that an appropriate facility has not been available?
	A.	In every single case, maybe not, but in some cases, yes I would have to take time to go through each one.
	Q. 183
	I will not take it any further than that.    Certainly, some of the cases?
	A. 	Yes, without a doubt.
	Q. 184
	Would it be fair to say that while no guarantee could be given as to what their future would have been, again, in the majority of cases, their chances at least would have been better if the appropriate facility was available?
	A.	That would be true, but I think you know the difficulties of dealing with children who have problems in early, mid and late adolescence is one shared not just in this country but in many other countries.    Indeed, if we were, with our combined wisdom, able to patent a solution, we would become very wealthy overnight in providing it across the world.

	Q. 185
	Would you disagree with the general proposition?
	A.	No, I would not.
	Q. 186
	Their chances would have been better if the appropriate facilities were available?
	A.	Yes, but again we are dealing with human beings and there is a wonderful variety of persons and so on and it is very difficult once a child has suffered a traumatic experience or a serious moment in their life, it is very difficult to say how they would respond, even with support.
	Q. 187
	It must follow that over the next two years that any children who would require facilities, if those facilities had been available for them their chances would be better?
	A. 	That has to be accepted.”

	In the light of this evidence it is difficult to see how as a matter of fact it can be said that these applicants do not have an entitlement to apply for the orders sought.    It does not appear to me that the decision relied upon by the Minister namely Duggan -v- An Taoiseach and Others (1989) I.L.R.M. 710 has any great relevance to these proceedings.   There a challenge was taken to executive action on the part of the Government which it was said breached the applicant’s constitutional rights.    In these proceedings, the Court has already found that the State has a constitutional obligation and I am concerned with the enforcement of it.   Not merely that but I am dealing with applicants who quite apart from having disabilities which place them at risk also have a legal disability in that they cannot assert their own constitutional rights;  this has to be done on their behalf either by a next friend or a guardian ad litem.   Normally, a parent would exercise such a right but in many cases involving children like this the parents are either unwilling or unable to do so.   The rights could of course be asserted by the Attorney General but he is always named as a respondent in these type of proceedings because the allegation is that the State itself which is represented by him is to be found wanting.
	I am of opinion that these applicants interests have been adversely affected, or stand in real or imminent danger of being adversely affected by the failure to provide the appropriate facilities.
	By no stretch of the imagination could these applicants be considered to fall within the description of those whom the practice rule of locus standi is designed to exclude namely, the crank, the obstructionist, the meddlesome, the perverse, or the officious man of straw (per Henchy J., in Cahill -v- Sutton (1980) I.R. 269 at 284).   
	In my view they have a sufficient locus standi to mount this application and I reject the Minister’s contention to the contrary.

POLICY
	Just as was submitted in D.B. -v- Minister for Justice (1999) 1 I.R. 29, it is said that the court has no jurisdiction to grant injunctions of the type sought here because to do so would be to trespass on the role of the Executive in the determination of policy.   It is said that this court cannot involve itself in the creation of policy.
	Article 6 of the Constitution provides:-

	“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
	2.  These powers of government are exercised only by or on the authority of the organs of State established by this Constitution.”
	Thus it is clear that this court is a branch of Government.   It has its own duties and obligations imposed upon it under the Constitution.    Article 40.3.1 of the Constitution provides that:-

	“The State guarantees in its laws to respect, and, as far as practical, by its laws to defend and vindicate the personal rights of the citizen.”

	One of the obligations of this court is that it must vindicate and defend the rights guaranteed by the Constitution.   In the case of these applicants those rights include the one identified by Geoghegan J., in F.N. -v- the Minister for Education.
	Hamilton C.J., in D.G. -v- the Eastern Health Board (1997) 3 I.R. 511 at page 522 said:-

	“If the courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the courts have the jurisdiction to do all things necessary to vindicate such rights.   
	As stated by O’Dalaigh C. J., in the course of his judgment in The State (Quinn) -v- Ryan (1965) I.R. 70 at page 122 of the report:-
		‘It is not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented.   The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights.    As a necessary corollary, it follows that no-one can with impunity set these rights at nought or circumvent them, and that the courts powers in this regard are as ample as the defence of the Constitution requires’”.

	As I said in D.B. -v- the Minister for Education at page 40:-

	“These quotations seem to me to establish the proposition that in carrying out its constitutional function of defending and vindicating personal rights, the Court must have available to it any power necessary to do so in an effective way.    If that were not the case, this Court could not carry out the obligation imposed upon it to vindicate and defend such rights.   This power exists regardless of the status of a respondent.    The fact that in the present case the principal respondent is the Minister for Health is no reason for believing that he is in some way immune from orders of this Court in excess of mere declarations if such orders are required to vindicate the personal rights of a citizen.”

	I went on to quote what Finlay C.J., had said in Crotty -v- An Taoiseach (1987) I.R. 713 at page 773 and it bears repetition here:-

	“With regard to the executive, the position would appear to be as follows:-
	This court has on appeal from the High Court a right and duty to interfere with the activities of the executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or where activities of the executive threaten an invasion of such rights.   
	The right of intervention is expressly vested in the High Court and Supreme Court by the provisions of Article 34, s.3, sub-s.1 and 34, s.4, sub-s.3 f the Constitution and impliedly arises from the form of the judicial oath contained in Article 34, s.3, sub-s.1 of the Constitution.”

	For reasons which I will give later, I do not accept that the Court is in this case making policy.  But even if it were called upon to do so, I reject the suggestion that this Court does not have jurisdiction to make orders against the administrative branch of Government where it is in default of its constitutional obligations towards a litigant.   Having said that, however, as I pointed out in D.B. -v- the Minister for Justice such orders will never be made lightly.    That is because our system of Government is based on a separation of powers between Legislature, Executive and Judiciary.    It is to be expected that each of these branches of Government would demonstrate a respect for each other and their respective functions.   I pointed out by reference to the decision to the Supreme Court in District Judge McMenamin -v- Ireland (1996) 3 I.R. 100, how that respect operates in practice.
	I therefore reiterate my view that there is a jurisdiction vested in the Court to intervene in what has been called policy in an appropriate case.    Such an intervention would only occur only in limited circumstances and where absolutely necessary in order for this Court to carry out its duties under the Constitution in securing, vindicating and enforcing constitutional rights.    Because of the respect which each branch of Government is expected to afford to the others one would hope that such a situation would not arise.
	Indeed it does not arise in the present case.   Here the Executive has formulated a policy which I am quite satisfied will, if carried into effect within the time scale specified, address in an adequate, albeit belated, fashion the rights of these applicants.   I am not, therefore, making policy or interfering with it.

FACTORS TO BE CONSIDERED IN THE EXERCISE OF THE POWER
	As I said in D.B. -v- the Minister for Justice four factors have to be taken into account in deciding whether or not to grant the relief sought 
	First, the High Court has already granted declaratory relief concerning the obligations of the State towards minors of the type involved here.   Secondly, if that declaration is to be of any benefit to the minors in whose favour it was made, the necessary steps consequent upon it must be taken expeditiously.   Otherwise the minors, will achieve majority without any benefit being gained by them.    Thirdly, the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of children and put them at risk of harm.  It continues to do so.    Fourthly, due regard must be had to the efforts made on the part of the State to address the difficulties to date.    If the court were to conclude that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the State’s response was proportionate to the rights which fell to be protected, then normally no order of the type sought should be made.   These are the factors which I take into account on the present applications.
CONCLUSIONS
	There is no doubt but that substantial progress has been made in coming to terms with the provision of facilities of the type required.  Large sums of money have been earmarked for expenditure on the provision of relevant facilities.   Due credit must be given for all of that.
	On the other hand, on no occasion has the Executive branch of Government managed to abide by the self selected time scale chosen by it for the provision of the relevant facilities.   On each review hearing I have been informed of the necessity to defer further into the future the provision of the relevant facilities.   There is, of course, one exception to this.   In the case of the facilities which were the subject of the injunction everything has been done in accordance with the order of the Court.  That is not without significance.     
	If the evidence satisfied me that these continual deferments were as a result of matters outside the control of the State or its agencies I would be disinclined to grant injunctive relief.   That is not the case.
	I also bear in mind that I invited the Minister to give an undertaking to the court but my invitation was declined.   In these circumstances how can I be assured that the most recent time scales indicated to me in evidence will be met?   In the light of all that has gone before, I cannot.
	Just as in the case of D.B. I have come to the conclusion that in the absence of an appropriate undertaking on the part of the Minister the time has now come for this court to take the next step required of it under the Constitution so as to ensure that the rights of troubled minors who require placement of the type envisaged are met.
	The order that I propose making will ensure that the Minister, who has already decided on the policy, lives up to his word and carries it into effect.    I am neither dictating nor entering into questions of policy.    But if the court is to keep faith with its own obligations under the Constitution and with the minors with whose welfare it is concerned the injunctions sought must be granted.
	The effect of this injunction is that the proposed developments must now be completed within the time scales specified in evidence in the latest hearing before me.   If there is to be any change in this it will have to be the subject of an application to the court on the part of the Minister for a variation of the injunction.    There will have to be objectively justifiable reasons present to warrant such a variation being granted.
	It is a matter of considerable regret that I am forced to take this step, particularly in the light of the history of all this litigation over the last number of years.    However, I cannot for the reasons stated resile from enforcing the rights of these children in need in the manner sought.    To refuse to do so would be to continue to allow their entitlements to be subjected to a real risk of even more delay by the administrative branch of Government.   I cannot and will not permit that to happen.  
	Even as things stand it will be fully seven years since the decision in F.N. before these facilities are in operation.  These children and others like them are at an important stage in their development.  Much can be done for them.  Their future lives as adults can be influenced for good but only if the appropriate facilities are available.  They have a right to them.  They ought to have been provided long before now.  It is a scandal that they have not.  A great deal of time has been lost.  This Court can allow no more.  The injunctions sought are granted.  	
	There will be liberty to all parties to apply.

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