Kitty Holland’s report in the Irish Times on the 20th of October 2026 makes deeply disturbing reading. The High Court was told that a 14-year-old girl in State care, who has a disability, was being subjected to appalling sexual exploitation by adult men. The Court made a special-care order, but Tusla, the State’s Child and Family Agency, could not provide a place. According to the report, just 15 of the State’s 26 special-care beds were open because of staffing shortages. Judge John Jordan directed that papers be sent to three Ministers to illustrate the consequences of the continuing failure to provide the care these children require.
The circumstances are distressing. The familiarity of the institutional response is also deeply troubling. Children at serious risk, court proceedings, unavailable services and appeals to Ministers have been features of this system for decades. We need to ask how these failures have become so persistent, and what it means to recognise children’s rights while repeatedly failing to put the services necessary to vindicate them in place. You might hope that such an account would appeal to what Lincoln in his first inaugural address in 1861 called “the better angels of our nature”. But a child’s safety should never depend on an appeal to the conscience of those in power. It should be secured through the discharge of the State’s legal obligations.
The language used to describe these cases is of note. Describing a child as seeking attention or affection must never obscure the responsibility of the adults exploiting her. Her need for connection, and her belief that those harming her care about her, deepen the concern about exploitation and the failures of protection around her in her life. Language that focuses on what a girl is said to want or how she behaves inadvertently shifts attention away from the conduct of adult men. It can also shape what professionals understand the problem to be, and therefore the response they consider appropriate.
Research by Anita Franklin, Geraldine Brady and Louise Bradley, illustrates the consequences of this framing for disabled children who have experienced sexual abuse. Their analysis identifies how attention to impairment, diagnosis and supposedly problematic behaviour can obscure abuse and undermine the response to it. Some young people came to understand themselves as responsible for what had happened to them. This research does not establish what occurred in the Irish case. However, it does provide a compelling reason to examine whose behaviour is being scrutinised, and where criminal responsibility is located.
The fact that this girl has a disability requires more than a passing reference to vulnerability. Anna Lawson and Angharad Beckett’s seminal article on the complementary roles of the social and human rights models of disability is useful here. It directs attention both to disabling social arrangements and to the obligations associated with rights. Applied to child protection, this means examining inaccessible services, and state failures. Protection must be organised around the child’s rights and circumstances.
Almost 25 years after T.D. v Minister for Education [2001] IESC 101, we are still reading about children whose urgent care needs the State fails to meet. In that case, the High Court sought to compel implementation of plans for facilities for children with complex needs. The Supreme Court majority set aside the mandatory order from a High Court judge on separation-of-powers grounds. The decision has had an enduring influence on the enforcement of socio-economic rights and the courts’ ability to respond to perpetual failures by the executive organ of the state.
There are different readings of its implications. Conor O’Mahony has questioned the consistency of T.D. with the broader constitutional commitment to effective remedies, identifying judicial discomfort with socio-economic rights. Tom Hickey argues for a narrower reading, focused on the unusually detailed order at issue rather than a general prohibition on judicial enforcement. Shivaun Quinlivan’s analysis of T.D. draws attention to its possible chilling effect on those seeking to enforce the constitutional right to education. She argues that the decision, alongside inadequate educational provision and ineffective legislative mechanisms, compromises the rights of children with disabilities. This raises a wider concern about the practical consequences of restricting judicial remedies. For a child whose needs are immediate, the passage of time can itself make a right increasingly difficult to vindicate. The enduring and shameful question is how children’s rights are made effective when the services they need continue to be unavailable.
The legal position has also developed in recent years. Article 42A.1 of the Constitution now expressly recognises children’s rights and requires the State, as far as practicable, to protect and vindicate them by its laws. In re MMcD [2024] IESC 6, the Supreme Court upheld orders requiring Tusla to apply for special care and the making of special-care orders despite the absence of immediately available places. The statutory criteria were not expressed to depend on resources. Giving effect to legislative obligations was itself an expression of the constitutional allocation of powers. T.D. cannot be invoked as a blanket explanation for judicial impotence.
In B v Child and Family Agency [2025] IESC 2, the Supreme Court confirmed that a declaration of contempt against a State agency could, in principle, be sought through plenary proceedings without seeking a penalty. Hogan J noted in the concluding words in his judgment:
“[i]t must be said clearly that the persistent non-compliance with High Court orders of this kind such as we have seen in this case undermines that constitutional commitment to democracy and respect for the rule of law.”
The distinction between obtaining an order and securing compliance is key. What does a court order mean for a child if the State does not act on it? The Government must organise and resource the services necessary to give effect to that order. As Hogan J makes clear, persistent failure to do so undermines the rule of law.
The UN Convention on the Rights of the Child provides a further framework for examining this failure. Articles 19 and 34 require protection from violence, abuse and sexual exploitation. Article 20 addresses the State’s responsibilities towards children deprived of their family environment, while Article 39 requires measures to support recovery and reintegration after abuse. Article 3(3) is particularly relevant to the reported staffing shortages: it requires services responsible for children’s care and protection to meet standards concerning safety, staffing and supervision. These international obligations should be distinguished from directly enforceable domestic provisions. Nevertheless, they provide clear standards against which Ireland’s conduct can be assessed.
The Committee on the Rights of the Child has already addressed the relevant failures in considerable detail. In its 2023 concluding observations on Ireland, paragraph 27(g) called for urgent investigation and prosecution of violence and sexual abuse in the care system, explicitly highlighting children with disabilities.
“Urgently investigate and prosecute cases of violence against and sexual abuse of children in the care system, especially children with disabilities, and ensure access for victims to child-friendly reporting channels, legal aid, reparation and free assistance of interpreters, including in sign language;”
In paragraphs 24, 27 and 29, the Committee highlighted the need for adequate staffing, timely access to social workers and care tailored to each child’s needs. It also called for greater support for family and community care, measures to prevent abuse and support recovery, and training for child protection professionals on disability rights. Throughout these responses, children with disabilities must have the opportunity and support to be heard.
These recommendations have already been made. Why are we still reading about the State failing to protect children who are at greatest risk of abuse and exploitation?
The UN Convention on the Rights of Persons with Disabilities reinforces this analysis. Articles 6 and 7 address the rights of women and girls, and children, with disabilities. Article 16 requires measures against exploitation, violence and abuse, including accessible prevention and protection services responsive to age, gender and disability. It also requires independent monitoring of relevant facilities and programmes, support for recovery and measures to identify, investigate and, where appropriate, prosecute abuse. Article 13 requires procedural and age-appropriate accommodations in access to justice.
In General Comment No. 3 on women and girls with disabilities, the CRPD Committee emphasises “the duty to exercise due diligence by preventing violence or violations of human rights, protecting victims and witnesses from violations”. Where a child with a disability is being sexually exploited, recognising the danger while failing to provide the protection she needs is plainly inadequate.
RTÉ Investigates’ reporting on children in care earlier this year provides further context for these concerns. In response to the programme, the Irish Association of Social Workers reiterated longstanding warnings about reliance on unregulated emergency placements and the lack of stable therapeutic care. Barnardos called for a timed plan to end Special Emergency Arrangements and criticised the provision of unregulated care for profit. These failures have been flagged for years, and in some respects for decades.
There is a wider question here about the marketisation of children’s care. The distinction between services is of note: the three special-care units are operated by Tusla, while private providers operate within the wider residential and emergency care system. The reported shortage of a special-care place does not, by itself, establish that privatisation caused this child’s situation. It does require us to examine the system within which placements are commissioned, staffing and continuity of care secured.
Irish scholarship provides a basis for that scrutiny. Majella Mulkeen’s analysis of markets in social care questions the evidence for claims that market provision reliably improves quality and efficiency. Martin Power and David Power’s study of voluntary children’s residential providers describes the pressure created by chronic underfunding and difficulties over staff pay within a system increasingly dominated by the private sector. This also cautions against treating all non-State provision as equivalent. Voluntary, non-profit services and commercial providers occupy different positions in the care system. Any reform must examine how funding arrangements sustain or undermine the people and organisations delivering care.
The UNCRC is relevant to this policy model too. In General Comment No. 16 on State obligations regarding the impact of the business sector on children’s rights paragraphs 33-34, the Committee explains that outsourcing or privatising services does not exempt States from their obligations.
“33. Business enterprises and non-profit organisations can play a role in the provision and management of services such as clean water, sanitation, education, transport, health, alternative care, energy, security and detention facilities that are critical to the enjoyment of children’s rights. The Committee does not prescribe the form of delivery of such services but it is important to emphasise that States are not exempted from their obligations under the CRC when they outsource or privatise services that impact on the fulfilment of children’s rights.
34. States must adopt specific measures that take account of the involvement of the private sector in service delivery to ensure the rights enumerated in the Convention are not compromised.13 They have an obligation to set standards in conformity with the CRC and closely monitor them. Inadequate oversight, inspection and monitoring of these bodies can result in serious violations of children’s rights such as violence, exploitation and neglect. They must ensure that such provision does not threaten children’s access to services on the basis of discriminatory criteria, especially under the principle of protection from discrimination and must also ensure that for all service sectors, children have access to an independent monitoring body, complaints mechanisms and, where relevant, to judicial recourse that can provide them with effective remedies in case of violations. The Committee recommends that there should be a permanent monitoring mechanism or process aimed at ensuring that all non-State service providers have in place and apply policies, programmes and procedures which are in compliance with the Convention.”
The practical work required is already well documented. The 2025 External Review of Special Care recommended changes to remuneration and retention, expanded therapeutic services, better interagency working and appropriate onward placements. It also called for consultation with children and care leavers. These are relevant recommendations which warrant a public account of implementation. Children need services which can respond before circumstances reach the point of an urgent High Court application, as well as a safe and supported pathway out of any restrictive placement. Building that capacity requires sustained public investment and clear responsibility for delivery.
Ireland’s first examination by the UN Committee on the Rights of Persons with Disabilities is expected in 2027. Its List of Issues already asks about systemic factors enabling abuse in public and private settings, independent advocacy, legal representation and gaps in the care and justice systems. These failures should be central to that scrutiny. The assessment must include whether disabled children can obtain protection, communicate what has happened to them and secure an effective remedy.
This child needs immediate safety, appropriate therapeutic care and support to be heard. There must also be effective action against those abusing her. The enduring and shameful question is how children’s rights are made effective when the services they need continue to be unavailable. Government needs to answer that question through funded provision, accountable implementation and protection that children actually experience. They cannot be asked to wait for another review.
The Government knows that children are at risk. The courts have repeatedly confronted these failures, and the UN Committee on the Rights of the Child has expressly called for action to address the abuse of children with disabilities in care. What is the Government waiting for? This child needs protection now. She needs appropriate care and support, and those exploiting her must be held accountable. How many more children must come before the High Court before the State provides the services it already knows they need and have committed to providing?
Dr Charles O’Mahony is an Associate Professor at the School of Law, University of Galway
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