27 July 2000 Edition

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Do homeless children have constitutional rights?

Dublin government to appeal against Kelly judgement

The Dublin government is to appeal to the Supreme Court the right of the High Court to injunct the health boards to provide accommodation for troubled children, which the boards have failed, consistently to do.

For over five years cases have continuously come before the courts, where so-called `troubled children' have been brought before the court, but judges have found that there is nowhere to send these kids, except to prisons, juvenile remand homes, or mental hospitals.

`Troubled children' are those who are the product of extreme disadvantage, often abusive, dysfunctional home backgrounds, who have suffered so much hardship they are too disturbed to be accommodated in foster homes or hostels.

In frustration, Judge Kelly, in an unprecedented legal move, injuncted the Eastern Health Board to in July 1988, to provide special care and high support units for these children. The EHB undertook to do so, with the promise of a number of units to be provided within a specific time frame. But the EHB hasn't provided as promised.

In February this year Judge Peter Kelly described the State's continuing failure to provide for the needs of such children as ``a scandal''. He further injuncted seven health boards to provide necessary units. He said that there had been ``culpable slippage'' by the Department of Health and Children in meeting its own targets.

Judge Peter Kelly had consistently held that in being obliged to make orders committing these children to prisons, he was in breach of their constitutional rights.

To the astonishment of all, the state, which did not appeal the first injunction, has now appealed the second on the grounds that these children do not have a constitutional right to seek the order for suitable accommodation, and that Peter Kelly's judgement was is in breach of the separation of powers.

It is a case of considerable interest for it raises the question of a citizen's right as against the incompetence of bureaucracy and government in this country.

The case also casts in very poor light the government's commitment to an equality agenda. The state apparently is willing to contest before the Supreme Court that such children, who are unconvicted in any court, have a constitutional right to accommodation, which the state, clearly has obligation to provide, and which the health boards have failed to do.


An Phoblacht
44 Parnell Sq.
Dublin 1

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