Before the debate was adjourned, I referred to Part IV. Under this Part where the member in charge of the Garda station to which an arrested child has been brought believes the child may be in need of care or protection he or she will be obliged to inform the local health board. A representative of the board will then go to the station as soon as practicable. This provision could be important where, for example, the child is homeless or involved in prostitution.
Part V establishes a new children court which will replace the existing juvenile court. It will be the District Court when dealing with all summary cases involving children, including the jurisdiction given to the District Court under the Child Care Act, 1991. Under this Part the President of the District Court will have power to designate children court judges in any district to which more than one judge is attached. For other districts a panel of judges will be established by the president from which he or she may designate children court judges. It is for the president to decide on what basis he or she will make these designations. The separate issue of the training of judges has been dealt with in a more appropriate broader context in the Courts and Courts Officers Act, 1995.
Part VI is concerned with proceedings in the new children court. It is underpinned by a general statement of principle establishing the rights of children before the children court. There are several important crossovers in the Bill from the justice to the care and protection procedures for dealing with children. One of these is provided for in section 64 which allows the court to adjourn proceedings against the child where it appears the child's problem is a need for care or protection. The health board will then investigate the child's circumstances and, having done so, will inform the court of its assessment of his or her health care needs, if any. The board may apply to the court for a supervision order, a care order or a special care order in respect of the child and where it does so the court may dismiss the charges against the child. Special care orders are introduced in Part X and I will deal with them in more detail under that Part.
Another provision in Part VI which I wish to highlight is the requirement on both parents or the guardian to attend all proceedings in the court with their child, and when I say "both" I mean both parents. The least that can be expected of parents is that they are there to offer whatever support they can to their child and, if necessary, to be questioned about their child's behaviour. It is also important that they are there to hear the decision if their child is found guilty as the court may offer advice to them on how to help and support their child cope with and carry out any penalty imposed, in particular a community sanction. The court can also make clear to the parents what it regards as their responsibilities to their child. Of course, it may not always be possible for one or both parents to attend court. We have to be realistic on that point. The court will have the power, in the interests of justice, to excuse one or both parents from attendance at all or part of the proceedings. Where a parent or guardian is not present in court, an adult relative or other adult may attend with the child.
I turn now to one of the longest and most important Parts of the Bill. A child can be detained where it is the only suitable penalty. In those circumstances it behoves us to provide the courts with a wide range of community sanctions which, if used imaginatively, should ensure an appropriate sanction for each child on whom such a sanction is imposed. Part VII provides those community sanctions. Like several other Parts, this Part is underpinned by a set of principles, in this case those relating to the exercise of criminal jurisdiction. It also sets out clearly and concisely the powers of a court on a finding of guilt of a child, and most of these are dealt with in detail in this Part. On a finding of guilt, before a court decides how it will deal with a child it can request a report on the child. It is entitled to do this in any case but is obliged to do so whenever it forms the opinion that the appropriate penalty may be a community sanction or detention. The report is prepared by a probation and welfare officer but the courts also have power to request any other report it considers may assist it in arriving at a decision. For the guidance of the courts, examples of other reports are given in section 76 — these are medical, psychiatric, psychological and victim impact reports. It is important to emphasise that the persons preparing the reports are professionals and experts in child matters and are uniquely placed and qualified to assist the courts in determining the appropriate way of dealing with child offenders.
A court can deal with a child by such means as a reprimand or conditional discharge but, if it goes beyond that, the penalties it can impose can be broadly classified under three headings — financial, community sanction or, as a last resort, detention. These are as wide-ranging and flexible as possible so that there will be an appropriate penalty available for imposition on each child, regardless of the child's circumstances.
I will describe the financial penalties. The courts will be empowered to order a child to pay a fine, the maximum of which will be one half of that which could be imposed on an adult convicted of the same offence. With children defined as persons up to 18 years of age, many children who appear before a court will be working or will be potential earners. For those whom the court deems could afford to pay, provision for the payment of a fine is a proper and valid penalty for the courts to have at their disposal.
Child offenders could also be obliged to pay compensation, as could their parents. Where the courts order a parent to pay compensation they must be satisfied that there is good reason for so doing. It is for the courts to decide what is a good reason in any particular case. For parents who could afford to pay compensation, this is an appropriate penalty which will encourage them to face up to their responsibilities to control their children. Another way of making parents face up to their responsibilities in this regard is to oblige them to enter into a recognisance to exercise proper and adequate control over their children. It can only be forfeited when the child is found guilty of another offence and the court is satisfied that the failure of the parent to exercise proper and adequate control over the child contributed to the child committing the offence.
None of the financial provisions I have mentioned is new. They are simply being rationalised, updated and placed on a proper statutory basis in a comprehensive manner. What is new is that before imposing one of these penalties the court must take into account the person's present and future ability to pay. This may apply to the child or the parent and for that purpose the court may require evidence to be given as to means and financial commitments. This will obviate any possibility of inappropriate financial penalties being imposed.
The second category of penalties is the community sanction. These are listed in section 94 and, very broadly, can be divided into three main groups. First, is the day centre order and other orders in which the probation service plays a central role. The day centre order is crucial to the success of the Bill. It could almost be described as a junior version of the community service order, although it will be available for the courts to impose on all child offenders, regardless of age. Instead of work, it will involve programmes of occupation, activities and, in the broadest sense of the word, instruction, both indoor and outdoor. Participation will be for up to 90 days, not necessarily consecutive. The probation service will be responsible for the construction or provision of a network of day centres and can also use other facilities for that purpose with the consent of the owners of those facilities. Three variations of a probation order are also provided which isolate and highlight a particular aspect of the order for implementation. Thus, if the court considers that one of these orders is appropriate in a particular case it can, depending on circumstances, especially those of the child offender, impose a training or activities programme order, an intensive supervision order or a residential supervision order.
The second group of community sanctions is the suitable person order. While the child offender will still be under the supervision of a probation and welfare officer, the emphasis will have changed. These orders will be relevant where the child's family is part of the problem, whether it is a dysfunctional family or a family who just cannot cope despite good intentions. In the former case the child could live for a predetermined time with an especially chosen person or family. This would parallel fostering in care situations. In the latter case the child and his or her family would receive the help and support of another especially chosen person or family to prevent the child becoming involved in further crime.
The third group of community sanctions is the restriction on movement order which, combined with a probation or day centre order, is called a dual order. The child's movements can be restricted in two ways. First, he or she can be restricted to a particular residence for any time between 7 p.m. and 6 a.m. the following morning. It will be for the court to decide, when making this order, between what particular hours the order will apply. Matters such as the age of the child, his or her legitimate pursuits and the offence for which he or she has been found guilty would be relevant. This order would not be appropriate for many children, such as those whose problems emanate from an inadequate family background. Parents will not be asked to enforce the order although their full co-operation would certainly be useful. The residence need not necessarily be that of the parents; it could be that of a relative such as a grandparent. Enforcement will be through the local gardaí who will be given a copy of the order by the court and will be empowered to call to the named residence to check for compliance.
The other type of restriction is that which prohibits a child being at or in any named premises, place or locality during specified days or times. The days or times are not restricted in the Bill. The purpose of this form of the order is primarily to prevent a child being at some place where he or she may become involved in crime or be open to the temptation or persuasion to be so involved.
The third type of penalty open to the court is detention. This can only be imposed where the court is satisfied that it is the only suitable way of dealing with the child. In Part VII some general detention matters are dealt with. Part VIII outlines in more detail the type of detention being proposed. The Minister for Education will be responsible for the detention of all child offenders under 16 years of age on whom a child detention order has been imposed. The children detention schools provided for that purpose will be obliged to accept all referrals to them from the courts regardless of what the child has done, his or her problems or any specialised treatment the child may need. Such detention will be for a period of up to three years. Detention of 16 and 17 year olds will be the responsibility of the Minister for Justice who will be obliged to designate places for that age group separate from older detainees and prisoners.
Part VIII of the Bill sees the end of the reformatory and industrial schools and their replacement with children detention schools. The way these schools will operate in practice is of the utmost importance, and this is reflected in section 137 which sets out their principal object. Another positive effect on the operation of the schools is that most should become the responsibility of a single board of management which will appoint a chief executive to be responsible for the running of the schools and the management of the detention of each child. It is essential that each child's detention is managed in a way that will maximise his or her chances and opportunities for remaining free from involvement in further crime. Achieving that will be a major challenge because by the time child offenders end up in detention they may be persistent or serious offenders and some may be quite disturbed.
Part VIII is too long to discuss in detail today but I will mention briefly some of its features. An inspector will be appointed by the Minister for Education who will be responsible for the inspection of each school at least once every six months. Children Court judges will be entitled to visit the schools at any time. The director of each school will be obliged to accept every referral from the courts and every transfer from another school as directed by the chief executive. Schools will have to provide treatment facilities for children with particular problems. A sophisticated policy of leave and supervision will ensure that children successfully reintegrate back into society, and voluntary aftercare will be available on completion of the detention. The board will be in a position to enter into arrangements with others to provide detention facilities for child offenders.
Part IX of the Bill re-enacts provisions in the 1908 Act concerned with the protection of children. Of all man's inhumanity to man, one of the worst is cruelty to children. The law on cruelty and neglect is being updated and the penalties substantially increased in accordance with a recommendation of the Law Reform Commission in its report on non-fatal offences against the person. Changes to the law on sending out children to beg are also in line with a recommendation of the Law Reform Commission in its report on vagrancy and related offences. The evidential burden will now be on the person who sent the child out to beg, making successful prosecutions easier. The law on encouraging or causing a sexual offence upon a child under 17 years of age is being updated in many important respects, including an increase in the penalties.
Part X of the Bill is the responsibility of the Department of Health and provides for an amendment of the Child Care Act, 1991. Under that Act, health boards have statutory responsibility for promoting the welfare of children not receiving adequate care and protection.