Giving judgment on Friday 31st July Judge Emily Egan found the agency in contempt for failure to comply with orders requiring three highly vulnerable children to be placed in secure care. While the children were eventually placed Judge Egan found that delays caused by a shortage of operational special care beds amounted to a breach of the agency’s legal obligations.

Special care provides secure therapeutic placements for children whose behaviour or circumstances place them at serious risk of harm, exploitation or death. The court heard that all three children had experienced profound trauma, criminal or sexual exploitation, self-harm, violence and other significant safeguarding concerns. Judge Egan found that once the High Court makes a special care order, Tusla has a mandatory statutory duty to provide a placement, regardless of resource constraints.

Tusla accepted that it had breached the court orders, apologised to both the court and the children and argued that chronic staffing shortages and sustained recruitment efforts should excuse its noncompliance. However, Justice Egan held that good faith efforts do not provide a legal defence to contempt and found the agency had failed to demonstrate that its breach was excusable. She also questioned why Tusla had abandoned its long-standing position that improved pay was essential to recruit and retain special care staff.

The judge described the failure to provide secure placements as a systemic and recurring problem, noting that only 16 of the State’s 26 approved special care beds were operational at the relevant time. She warned that allowing public bodies to disregard statutory duties because of resource shortages would undermine the rule of law and could effectively permit governments to “nullify legislation by inaction.” If existing legal duties are considered unworkable, she said, the proper course is for the Oireachtas to amend the legislation rather than tolerate ongoing non-compliance.

Established in 2014 under the Child and Family Agency Act 2013, Tusla is the State body responsible for child protection, family support and the provision of special care services. While the court did not impose further sanctions, Judge Egan said the declaration of contempt should be taken extremely seriously by both Tusla and the State and should prompt meaningful action to ensure that vulnerable children receive the protection the law requires.