In Re MMcD [2024] IESC 6: Mandatory Orders, Statutory Duties, and Constitutional Rights

In its judgment in In Re MMcD in February 2024, the Supreme Court upheld a mandatory order that had been issued by the High Court directing the Child and Family Agency (CFA) to make an application for special care orders in respect of two teenagers. This aspect of the decision was particularly notable given the landmark 2001 Supreme Court decision in TD v Minister for Education, which set highly restrictive parameters for the granting of mandatory orders. The key issues in In Re MMcD related to the relationship between the CFA and the three organs of State, and to the enforcement of statutory obligations in circumstances in which the CFA argued that it was unable (due to circumstances outside of its control) to recruit the staff needed to provide sufficient placements in special care units. This article will begin by situating the decision in the broader body of case law on children’s constitutional rights. It will proceed to outline the facts of the case and the key points of the Supreme Court judgment, before analysing the implications of the decision for the enforcement of constitutional and statutory obligations in the area of special care, as well as for the enforcement of constitutional rights more generally. It will be argued that while the case was found to be distinguishable from TD (and therefore not to give rise to the same difficulties in enforcing the State’s obligations), a more contextual assessment illustrates that the combined effect of the two judgments, and the prevailing division of responsibilities in this area among multiple actors, may result in ongoing and potentially increased difficulties in future cases aimed at vindicating the constitutional rights of vulnerable teenagers.