An “unprecedented crisis” in services for the most at-risk children in State care is leading to a “likelihood” of claims against the State, a retired judge has warned.
Former Dublin metropolitan District Court judge Dermot Simms says up to 130 highly vulnerable children are in “unsuitable” and “unapproved” placements, such as holiday centres, hotels and B&Bs because there is nowhere else to put them.
He says “systemic failures” across Tusla, the Garda, the Department of Education, the HSE and the Prison Service are undoing, undermining and frustrating the best efforts of frontline social workers to comply with regulations and protocols.
In a strongly worded letter to four Government Ministers, Tusla, the State Claims Agency and the Ombudsman for Children, and dated May 17th, 2023, when he was still on the bench, former judge Simms says he has “utmost concern for the immediate predicament and welfare of children… in the care of the State”.
“There is the risk, or indeed likelihood, that the State will face claims in the future arising out of its failure to comply adequately with its duty of care and statutory duty to many of these children,” he says.
His letter is published on Monday, with his permission, as one of 67 reports from the Child Law Project (CLP), formerly known as the Child Care Law Reporting Project, which compiles reports on cases involving children in care or subject to care applications, in the courts.
It had become “increasingly clear over the past year” challenges facing Tusla were growing, especially finding safe and regulated places to accommodate at-risk children, he says.
“I have now been told by [Tusla] and its legal advisers, in the court and on record, that it is in an unprecedented crisis.”
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As well as difficulties recruiting and retaining social workers, he notes a lack of “properly regulated, suitable placements for foster care, residential placements and special [secure] care”.
Where a properly approved placement cannot be found, children are placed in what are known as special emergency arrangements (SEAs). These could include hotels, with a suitably trained adult supervisor and an allocated social worker.
Every time a child is placed in an SEA, Tusla makes a report to the State Claims Agency, the former judge notes.
Citing specific unnamed cases, he says one involved a six-year-old girl placed in what Tusla said in court was an “unsuitable” and “unapproved” emergency placement after four foster placements had broken down.
“These types of cases, too numerous to outline, have featured in the court on a daily basis,” he says.
The reasons for the crisis “have their genesis in systemic failures, not just in [Tusla]… but also in its interaction with other State agencies and their interaction with each other”.
In the HSE, including its disability and mental health services, there is “inadequate discharge planning at the end of involuntary detention from special care”, says judge Simms.
An Garda Síochána is not communicating adequately with Tusla on child sex abuse investigations, conduct of specialist interviews with children, and children in care who are missing and at risk of involvement in criminality including being sexually exploited, he says.
The Prison Service is not consistent in ensuring access between prisoners and their children, while the departments of Education and of Higher Education, he says, are failing to provide enough psychological assessments to vulnerable children; enough special needs assistants; and third-level places to study social work.
While there are policies and protocols to keep children safe, “the difficulty for a court is frequently how the care of a child or children… can be achieved where the crisis has undermined, undone and frustrated” them.
It is his “earnest hope”, says judge Simms, “that immediate and co-ordinated action will be taken to address and remedy the crisis which indeed may ultimately mitigate possible future claims against the State”.
Kate Duggan, CEO of Tusla said the reports provide an important and valuable insight into the operation of the childcare system in the courts but also“evidences the unprecedented challenges that the agency faces”. This includes “an increasing referral rate (almost 83,000 to Tusla’s child protection and welfare service alone), an inadequate supply of emergency and alternative care placements (foster care and residential care), an increase in the number of separated children seeking international protection, and workforce supply issues, particularly in social work and social care.”
The Irish Prison Service said on Sunday night it will study and consider the report when it is published.
Comment was also sought from the Garda, the Department of Education and the HSE on Sunday evening.
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