Court of Appeal: Special care order for vulnerable child extended due to lack of stepdown facility

Court of Appeal: Special care order for vulnerable child extended due to lack of stepdown facility

The Court of Appeal has extended a special care order for a vulnerable child in circumstances where there was no available stepdown facility for the child to return to the community. It was held that difficulties with such placements were a “long-term problem” in the State.

Delivering judgment in the case, the President of the Court of Appeal, Mr Justice George Birmingham, held that although the trial judge had previously indicated that a stepdown facility should be arranged for the child, the court was correct to extend the special care order where no stepdown facility was available. The statutory preconditions of a special care order were met and it was “unquestionably” in the best interests of the child to extend the care order.


The child, known as F, was 15 years old and had been in the care of the Child and Family Agency since 2011. The child had a very complex and troubled history. Fourteen previous placements had broken down and there were concerns about the use and sale of illicit drugs. The child was a gifted boxer and engaged in violence towards his foster carers and in organised fights posted on social media.

F had also been involved in “bottling” a child from an ethnic minority and intimidating an elderly neighbour, which gave rise to concerns about F’s welfare from vigilante groups. Concerns about F’s behaviour reached a peak during 2020/2021, when local communities made efforts to remove him from his placements due to his actions.

F was involved in minimal education from 2019 and had disengaged with support groups. The case of F was brought before the CFA’s Special Care Referrals Committee in August 2021, when he was approved for special care. However, no application was made to court despite the agreement of all interested parties.

Unusually, the guardian ad litem for F later brought judicial review proceedings seeking to place F in special care. The CFA responded by bringing an application for interim special care in October 2021. A full special care order was made on 13 October 2021.

Pursuant to the relevant legislation, the case came back before the High Court on several occasions over the following weeks for review. Although F responded very positively to being in special care after an adjustment period, the court emphasised that a stepdown facility should be identified so that F could rejoin the community.

The issue of the availability of a stepdown facility was raised by both the guardian ad litem and F’s mother at the various reviews of the care order. In November 2021, the court stated that it was important to identify a stepdown facility to provide a lengthy transition period. The court stated that it expected progress on the issue.

Unfortunately, at the next review date in December 2021, the CFA confirmed that it had no available stepdown facilities for F to attend and therefore the CFA would apply in January for an extension of the special care order. The application was made on 11 January 2022, where the guardian ad litem reluctantly agreed with the extension.

However, the child’s mother disagreed with the extension. She submitted that F’s behaviour no longer “continues to exist” within the meaning of the section 23J of the Child Care Act 1991 (as amended). The trial judge ultimately extended the special care order and the decision was appealed to the Court of Appeal.

Court of Appeal

Delivering judgment in the case, Mr Justice Birmingham began by reciting the relevant statutory provisions relating to special care orders. It was noted that a judge was required to consider several issues when making such an order, including an “adequacy test” under section 23J(1)(c), an “alternative care test” in section 23J(1)(d) and a “necessity test” in section 23J(1)(e).

The court also considered the submission from the CFA that the purpose of the 1991 Act was to “provide for the care and protection of children and for related matters”. Accordingly, it was submitted that a child should not be discharged into the community to face an uncertain future when no suitable follow-up replacement was available.

The court accepted that the statutory provisions for special care had to be strictly complied with as such orders provided for civil detention and restricted liberty (Child and Family Agency v. ML [2019] IECA 109). It was noted that the guardian ad litem was placed in an “unenviable position” where F should not be detained for longer than necessary but where no other alternatives were available. It was “by any standards, a very unsatisfactory situation”.

It was held that the trial judge was satisfied that the strict statutory provisions had been complied with in the case to extend the special care order, notwithstanding his preference for a stepdown placement. The risk of harm which saw F taken into care continued to exist at the time of the application, the court said. It was noted that F’s social worker stated that he was at “dire risk of reverting to his dangerous behaviour” if returned to the community.

Considering the adequacy of the special care placement, the court held that the CFA had to seek placement which was suitable, appropriate and would not break down. In light of the fourteen failed placements, the special care order was adequate to address F’s behaviour. Further, there was simply no alternative care available, the court held.

Finally, the court had no doubt that the special care order was necessary. The court said that “it was absolutely necessary that F should continue to be detained in special care in order to protect his life, health, safety, development and welfare”. The alternative was to expose F to a “very grave risk”.


The court stated that the decision to extend the special care order “was a choice which could be exercised only one way”. The case was particularly difficult and complex. Further, each party was aware that the lack of facilities was a common and long-term problem in the Irish system.

In the circumstances, the extension of the special care order was in the best interest of the child and the trial judge’s decision was upheld.

Child and Family Agency v- L. & Anor [2022] IECA 207

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