Children Bill, 1996: Second Stage.

I move: "That the Bill be now read a Second Time."

The Children Bill, 1996, deals with three important areas of policy concerning children. It provides a statutory framework within which can be created and developed a new juvenile justice system responsive to the challenges posed by a sophisticated and largely urbanised society at the end of the 20th century. It amends and extends the Child Care Act, 1991, by providing an additional range of powers to health boards to ensure that non-offending children who are out of control receive special care, education and treatment. It re-enacts in an updated format the protection provisions in the Children Act, 1908. The Bill conforms to the United Nations Convention on the Rights of the Child and is in line with the first report of the Dáil Select Committee on Crime entitled "Juvenile Crime — Its Causes and its Remedies".

I will refer to juvenile justice, past and present. It is by examining the past that we can understand the present and plan for the future. The first real landmark in juvenile justice came in 1858 with the enactment of legislation providing for the certification of institutions for the detention of young offenders. These were the reformatory schools which, in legal terms if not in operational or practical terms, are with us to this day. Within a few years up to ten reformatories were in operation. The 1858 Act has long since been repealed and other similar Acts have come and gone, but if Deputies look at the Second Schedule they will notice we are repealing section 25 of The Irish Reformatory Schools Act, 1868. The remainder of that Act was repealed in 1908 and it is interesting that its last remaining provision, now being repealed, was concerned with the financial contributions of parents towards their child's maintenance in a reformatory. The contribution could be up to five shillings a week, a not inconsiderable sum in those days.

The remainder of the 19th century saw further advances in the way young offenders were dealt with as well as in the protection of children generally. The reforming zeal of that time culminated in the second great landmark in the history of juvenile justice in Ireland, the enactment of the Children Act, 1908. This Act was rightly known as the Children's Charter. That enlightened and forward looking legislation forms a bridge to the present juvenile justice system. The 1908 Act covered a wide range of policy areas relevant to children such as protection, care and juvenile justice. The care provisions, including life protection, were repealed in 1991 by the Child Care Act of that year and we are now repealing all the remaining provisions. It is truly the end of an era.

This brings me to the third landmark in the history of juvenile justice here, the legislation we are debating today. It would be difficult to overstate the importance of this legislation, but it is worth being cautious about its potential effect. We are not today discussing a new juvenile justice system but rather a legislative framework within which we can create a new juvenile justice system in the coming years. The success of the system will depend on where we target the resources to operate it to its full potential, within the parameters and priorities established and implied in the Bill, and on the dedication and expertise of those who will operate it. We are now presenting a new beginning and it is crucial that full advantage be taken of it.

This is not the first attempt in recent years to reform juvenile justice legislation. In the 1980s the Department of Health prepared proposals, which included juvenile justice provisions, aimed at replacing the 1908 Act. More recently the Department of Justice took over this work. All the time the principal factor holding back progress was the difficulty in agreeing the respective responsibilities of the main Government Departments concerned, Justice, Health and Education, under any new legislation. One of the reasons I was appointed Minister of State with responsibility for children's affairs at the three Departments was to bring forward this legislation. On my appointment I immediately established under my chairmanship a co-ordinating committee of officials from each of the Departments. One of the first tasks of the committee was to break the impasse on responsibility that was holding up progress on the Bill. The agreement we reached was, to put it briefly, that the Department of Justice would be responsible for the detention of 16 and 17 year old young offenders, the Department of Education would be responsible for young offenders under 16 years of age and the Department of Health would be responsible for disturbed non-offending children.

In general, this legislation is concerned with children, while the juvenile justice aspect is concerned with child or juvenile offenders. The question we have to ask ourselves is: who are juvenile offenders and why do they, at a relatively young age, become involved in crime? Juvenile offenders are children between ten and 18 years of age and most are boys, while a small but increasing number are girls. The crimes they commit run the whole gamut from the trivial to the most serious. It is not easy to say why young persons become involved in crime but a proper understanding of this question is necessary to allow for an appropriate targeting of resources.

We are not unique in thinking we have a problem with juvenile crime. All developed countries have a problem with juvenile delinquency and crime to a greater or lesser extent and most have a more serious problem than us. Neither is juvenile crime, nor the perception of it as a perennial problem, new. After feudalism broke down in Europe, probably every succeeding generation of adults has considered itself to be in the middle of a juvenile crime wave, with children effectively out of control, and has considered that things were much better in the days of their youth. The reaction of the law makers in responding to public opinion has usually been to introduce harsh measures to deal with juvenile delinquency at times of particular concern. Inevitably, opinion swings full circle when the harsh measures are seen not to work and a softer approach is then introduced. When in time the situation still does not improve there is a return to harsher methods and so on. What I am describing is the cycle of juvenile justice, an oscillation between the two traditional approaches to dealing with juvenile delinquency, the justice model and the welfare model. In the light of our knowledge of the experience of other countries and in accordance with our constitutional requirements and social conditions, we have rejected legislating for a pure form of either model. Instead, the most appropriate system for this country is a modified form of the justice model which incorporates suitable elements of the welfare model, as provided for in the Bill. This is the best way to break out of the cycle I have described. It allows each child offender to be dealt with in a way that offers the best and most appropriate hope for his or her rehabilitation without compromising the good of society generally and the feelings of the victim. Child offenders will not be dealt with in accordance with some outmoded or discredited approach to juvenile justice, especially one driven by an idealistic or theoretical approach.

A high proportion of crime is committed by young males living in socially deprived areas. Undoubtedly, drugs are a contributory factor but it is also the case that only a small number of children in deprived areas become involved in crime. If we knew the reasons some do and some do not, the problem would be easier to tackle. However, an accurate profile of the average juvenile delinquent can be built. He, and it is usually a "he", will be from a deprived background; he will come from a dysfunctional family with a strong possibility that one or both parents and other siblings will be involved in criminal and other anti-social activities; he will have below average intelligence and low self-esteem. He will also be subject to intensive peer pressure and be open to malign influences from many sources. He may, for example, suffer from video or television violence intoxication. He will be a youth who has little hope for himself in the future and has nothing to lose through his anti-social activities. Pride, guilt and shame are emotions that may become alien to him. People who deal with persistent young offenders say they have a short attention span and difficulty relating to other children and adults. They crave affection and seek attention through misbehaviour.

Most crime committed by children is petty. Larceny is by far the most common and the most popular time is during the afternoon. That is a time of maximum opportunity; many houses are unoccupied during the day, cars are parked outside shops and in the city streets and the shops are open. A significant percentage of the offences are committed by boys in the 14 to 15 years age group. Deputies will see that in planning and preparing the legislation we possessed a considerable amount of information, from sources such as the statistics produced by the Garda National Juvenile Office, about what could be described as our target group and this information will be invaluable when it comes to implementing the legislation.

This is a long and, in places, a complex Bill even though we have tried to draft it in as logical and sequential a way as possible. Detailed consideration of its provisions can wait until it is debated in committee. I will explain in as much detail as time allows, the meaning and intent of each Part of the Bill as well as the general approach to matters such as the role of parents. The role of parents is of crucial importance when dealing with young criminals, and this is recognised throughout the Bill. On virtually every page are the words "parents or guardian". It begins in Part II where the parents would normally be expected to be present for the administration of a caution to their child; the juvenile liaison officer would have been in contact with the parents before that stage is reached. The parents have an even more important role through their involvement in the family conference. In this case they will be an intrinsic part of the proceedings aimed at getting their child to face up to his or her behaviour and formulating an informal family or community orientated plan to keep the child away from further anti-social activities. The involvement continues through Parts VI and VII and I will refer to it in more detail when I discuss those Parts.

Deputies will also see references to victims and victim impact reports. Examples of where they occur include section 13 — admission to the diversion programme; section 24 — persons obliged or entitled to attend family conferences; and section 76 — power of the court to request reports. That the children we are primarily concerned about have committed offences should not be lost sight of; where there are offences there are usually victims. It matters little to the hurt, fear, loss and feelings of insecurity of a victim that the perpetrator was a child. The Bill seeks to uphold the interests of all parties when a child commits an offence, and I suggest it succeeds in that difficult task.

Part II is both unique and inventive. It is unique in that no other country of which we are aware has given such statutory prominence to their diversion programmes or their equivalents. It is both unique and inventive in the incorporation into it of a family conference. This allows the child's problems to be aired and a programme of corrective measures to be suggested in the presence of the child, his or her parents, perhaps wider family members and others interested in the child's welfare and, in some cases, the victim. It is essential that this type of intervention takes place soon after a child commits an offence because if a child become a persistent offender, successful intervention is more problematic. By placing the family conference within the diversion programme we are ensuring the earliest possible intervention. Other countries have non-statutory family conferences of varying types. New Zealand has a statutory family group conference but it is different both in its operation and its functions to the one we propose. Although the conference will have statutory functions in that it will be able to consider whether the child's period or level of supervision should be varied, the most important aspect of it is that it takes place and the child's problems and future can be discussed and planned in a calm and controlled atmosphere. Overall, Part II will enhance an already successfully administered diversion programme and will ensure more resources will be applied to keeping many young offenders out of the criminal justice system.

Part III raises the age of criminal responsibility from seven to ten years, thus bringing us into line with other common law countries where the meaning of the term "the age of criminal responsibility" is the same as in this country. The age of criminal responsibility means the age below which there is no capacity to commity an offence. In other words, there is an irrebuttable presumption that a child under the age of criminal responsibility is incapable of crime. This means there can be no compulsory intervention in respect of the anti-social activities of such a child which, if committed by an older person, would be an offence. Therefore, there has to be a credible alternative way to deal with problem children. The framework provided for in the Bill is that the health boards will have responsibility for these children. When the necessary resources are in place the health boards will be in a position to provide a range of supports for this under 12 years age group. There will be reviews of the age of criminal responsibility every three years thereafter until it is possible to raise the age further, probably in two stages to 12 years. The experience gained by the health boards with the under tens will be valuable when the reviews take place.

The rule that a child under the age of criminal responsibility is incapable of crime is called the doli incapax rule. A child between the age, for the time being, of criminal responsibility and 14 years is also doli incapax but in this case the presumption that the child is incapable of crime is rebuttable. It is now proposed to place this ancient rule on a statutory basis, thus ensuring it will remain a part of our law.

Part IV places, with some changes and additions, the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987, as they apply to children, on a full statutory basis within the comprehensive set of provisions in this Bill. It is underpinned by a statement of principle that children who are being investigated for the commission of an offence are entitled to special treatment in accordance with the provisions of this Part. It thus recognises the vulnerability of children due to their age and level of maturity.

The parents or guardian of a child will be notified by the Garda Síochána of their child's arrest and of the nature of the offence for which the child has been arrested. They will be requested to attend the Garda station as soon as possible, but failure to attend will not be subject to any sanction. It would be unreasonable to expect parents to be always in a position to react quickly to notification of their child's arrest and it would be unfair to expect the Garda to wait indefinitely for the parents' arrival. The child might be away from home or a parent may be looking after other children or be sick. Where a parent or guardian does not or cannot attend at the station, the child will be entitled to request the attendance of an adult relative or other adult, reasonably named, who will then be informed by the Garda.

Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.