Children Bill, 1999: Second Stage.

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

This morning I have the privilege to present to the House, and to open the debate on a flagship Bill, the Children Bill, 1999. Not alone is it a flagship Bill, it is one of the most important and far-reaching Bills to have been brought before this House in many years. I make this point because the Bill is a blueprint for a new system of juvenile justice which will charter the course of that system for many years to come. The Bill will also affect the lives of many thousands of children and their parents and guardians in the coming decades of this new century. My wish is that it will affect their lives for the better.

The Children Bill has been a long time in gestation but, as evidenced by the broad approval it received on its publication last autumn, the wait was worthwhile and well justified. We have used the time wisely to bring a balanced, comprehensive, innovative and imaginative Bill to fruition. I do not wish to unduly take up the time of the House to rehearse the many twists and turns over recent years that have eventually culminated in the Bill. However, it is fair to say that the Bill we are now debating is radically different to that which has gone before. Its underlying philosophy is radically different just as much as its provisions are the distillation of the accumulated wisdom and the best practice worldwide in the area of juvenile justice.

I readily acknowledge that the previous Bill had some good features which I have incorporated into this Bill. I pay tribute to those both inside this House and outside of it who, with the best of motives, produced that Bill. I acknowledge the work of Deputy Austin Currie. Not for one moment do I doubt their commitment to overhaul our system of juvenile justice but I passionately believed that our generation of public representatives had realistically only one shot at the type of radical overhaul of the system which I had in mind. That is why I engaged in a deep analysis prior to producing this radically different and innovative Bill.

My clear focus was to produce an enlightened, enduring and forward thinking Bill. In that respect, I considered it an imperative during my watch, that the available opportunity be used to get it right. This Bill realises that goal. I ordered a thorough reappraisal of the 1996 Bill with the emphasis on introducing into our law, where appropriate, the most up-to-date and sophisticated measures for dealing with juvenile justice and associated child welfare, that took into account best international practice. I also wanted the Bill to deal more progressively with parental responsibility and to identify and correct the structural weaknesses in the way services are provided to young offenders and disturbed non-offending children. I was also unhappy with the way the age of criminal responsibility had been dealt with in the 1996 Bill.

At first, I thought we might be able to amend the 1996 Bill but the examination of the Bill and a contemporaneous study of recent advances in dealing with juvenile crime identified the need for so many changes that the Government agreed to my request to prepare a totally new Bill. Had we stayed with the existing Bill we would have ended up with somewhere in the region of 400 amendments and that does not include the many other drafting and presentational changes that, while not essential, were highly desirable. I am sure Deputies will agree with me when I say that in the circumstances the 1996 Bill could not realistically be saved.

The Children Bill, 1999 covers four main areas of the law. First, and predominantly, it provides a modern statutory framework for the further development of the juvenile justice system. Second, it provides for family welfare conferences and other new provisions for dealing with out-of-control non-offending children. Third, it re-enacts and updates provisions in the 1908 Act protecting children against abuse by persons who have the custody, charge or care of them. It also provides for a special residential services board to advise the Ministers for Education and Science and Health and Children on policy matters relating to the remand and detention of children and to ensure the efficient, effective and coordinated delivery of services to children in respect of whom children detention orders or special care orders have been made.

The starting point for this Bill was the Children Act, 1908. That Act was the basis for the creation and development of a juvenile justice system that, in spite of its many weaknesses, served this country quite well throughout the greater part of the 20th century. However, it is clear that further development of the system would have been impossible without a new statutory framework to underpin it. That essentially is the purpose of the juvenile justice provisions of the Bill. When the Bill becomes law, our juvenile justice system will have the capacity to continue developing within the statutory framework of the most up-to-date thinking internationally on how to prevent juvenile offending or to prevent further offending by juveniles who have already committed their first offence.

I was well aware when preparing the legislation of mistakes made over many years by other countries when revising their juvenile justice systems. The main error, which was continually repeated, was probably the attempt to devise systems based exclusively on a particular approach to the problem of juvenile offending. In practical terms, this meant the system was more important than the needs and misdeeds of the offender who could only be dealt with within the narrow confines of the system in favour at a particular time. Deputies will notice that I am proposing in the Bill to supplement rather than supplant the provisions on which the present system is based, apart from the obviously archaic or unacceptable. It is essential in legislation such as this not to close off avenues for dealing with young offenders. At the same time, policy should not be dictated by hard cases. That approach has underpinned the preparation of the Bill.

The Committee Stage debate will afford an opportunity to examine the provisions of the Bill in a detailed manner. In my speech today, I will outline the major policy areas of the Bill rather than go through it in a sequential manner.

An unusual feature of the Bill is that many of its constituent parts are supported by a set of principles or objectives. The importance of this feature should not be underestimated. It will become more apparent when the Bill is enacted and implemented. Thus, Part 4, which places the Garda diversion programme on a statutory basis, is supported by a new principle that obliges the gardaí to consider for admission to the programme children who have accepted responsibility for their criminal behaviour. Part 6, which deals with the treatment of child suspects, obliges the gardaí to have due regard to the dignity of children as human persons and to their vulnerability owing to their age and level of maturity. Part 8 establishes the rights of children before the court charged with criminal offences. These include an important new right, not in the 1996 Bill, that is, the principle that criminal proceedings will not be used solely to provide assistance or services needed to care for or protect a child.

Part 9 of the Bill, which sets out the powers of the courts in relation to child offenders, includes a comprehensive list of principles relating to the exercise of criminal jurisdiction over children. These have been strengthened since they first appeared in the 1996 Bill. Part 10 establishes the principal object of child detention schools. These are the schools that will provide for the detention of children aged between 12 and 16 years who have been found guilty of offences and in respect of whom the courts deem no option other than detention as appropriate. It emphasises the role of the schools in promoting the reintegration of the children referred to them back into society. This will be done mainly through the provision of appropriate educational and training programmes and facilities.

The provision in the Bill that has probably attracted most comment is the one that proposes to raise the age of criminal responsibility from seven years to 12 years. This represents a radical departure from previous policy on how young children whose actions would, but for their ages, constitute offences should be dealt with. It means that children under the age of 12 years will no longer have the capacity to commit offences. The question of raising the age to 12 years was one that exercised my mind for some time but I made the decision based on my belief, first, that as a society we should not criminalise children under 12 years of age, second, that the alternative policy for intervening with such children, that is, by the health boards, often in concert with other agencies, was credible and, third, that health board personnel would deal with these children in their usual professional manner. I was also concerned that of the relatively small number of children under 12 years of age who appear in court on criminal charges some may have been criminalised for the wrong reason, however well meant. There may be a temptation to bring charges for the sole purpose of ensuring that the child received care and protection in an institutional setting. That cannot happen under this Bill.

In addition, it is relevant that 12 years was the age recommended by the former Dáil select committee on crime in its first report and that the UN Committee on the Rights of the Child criticised our age in the context of the proposal to raise it to ten years in the 1996 Bill. I was unhappy, and said so in my Second Stage contribution to the 1996 Bill, when I was in Opposition, with the proposal in that Bill to raise the age to ten years and to provide for its eventual raising to 12 years by regulations following reviews at regular intervals. I argued then and I repeat now that this was far too important an issue to be left to regulations. It is an area where we have to make up our minds and act decisively. That is what I have done and I am proud to be the Minister who has made this decision.

The 1996 Bill dipped its toes into the area of restorative justice. Admittedly, at the time the 1996 Bill was being prepared restorative justice was a relatively new concept and few studies had been done on its efficacy. It seemed to be a concept that had real possibilities and I, therefore, asked my officials to thoroughly research how restorative justice provisions were operating in other jurisdictions. The outcome was encouraging and the result can now be seen in the Bill.

The decision to place the Garda diversion programme on a statutory basis has been retained but the family conference which was to have been an integral part of that programme has been greatly expanded so that it now incorporates within its parameters modern restorative justice measures. The primary focus of the conference will be on issues of accountability rather than welfare. It will be convened by the Garda Síochána and will formulate an action plan for the child in respect of whom it has been convened. The action plan may include provision for many matters, including the making of an apology or financial or other reparation to the victim. It can also include provisions relating to the child's lifestyle such as his or her attendance at school or participation in appropriate sporting or recreational activities. In practical terms the range of possibilities is almost limitless, as long as they are agreed to by the persons present at the conference. The action plan is no easy option but it has the advantage of involving the child and his or her family in the decision making process and of being a party to the decision. This will increase the likelihood of compliance.

The victim of the child's offending may be invited to attend the conference and, if the victim does attend, the child will be confronted by the consequences of his or her criminal behaviour. Experience abroad suggests that the victim usually welcomes the opportunity of being present at the conference, and that is borne out in the pilot schemes being operated by the gardaí in preparation for the implementation of this legislation. Some victims will stress the value of expressing their feelings to the young offender and ensuring that the offender learns from the experience. Other victims will want to contribute to the offender's rehabilitation or to show their support for the process. Yet other victims will emphasise their own interests. They may want to make sure that things are done properly and to get reparation. They are all understandable and valid reactions. To underline the seriousness with which the action plan must be taken, it will be in the form of a contract. The facilitator for the Garda convened conference will always be a member of the Garda Síochána, usually a juvenile liaison officer or a community garda but, in a new approach in the Bill to conferencing, it will be possible in appropriate circumstances for the chairperson of the conference to be somebody other than a member of the Garda Síochána.

Another innovation is a provision which will allow the victim to be present at the administration by the Garda Síochána of a formal caution. This is known as restorative cautioning and will be a suitable mini-conference type response in circumstances where a full conference is not warranted. It means that the child offender can be confronted with the consequences of his or her offending and be invited to apologise or make some form of reparation to the victim in a low key atmosphere. The Children Court is also being given a totally new role in implementing the restorative justice provisions in the Bill. The court will have the power to adjourn appropriate cases and direct the Probation and Welfare Service to convene family conferences as an alternative at that point to proceeding to a finding. An action plan formulated by the family conference will remain under court supervision and, for that reason, will be enforceable. The court will, on the resumption of the case following completion of the plan, have the discretion to decide whether to proceed to a finding. Compliance by the child with the terms of the action plan will obviously be an important factor in the court's decision.

To sum up on conferencing, children tend to be more open emotionally than adults, more quickly prepared to say sorry and mean it and less likely to stand on ceremony, attributes that make children particularly amenable to conferencing. It is also a particularly suitable way of dealing with the irritating anti-social behaviour exhibited by some young persons and, again, this is borne out in the pilot schemes. The court will also have the power to adjourn cases where it considers that a child's real problem is a need of care or protection, even though the child is before the court on a criminal charge. In such cases the relevant health board will be directed by the court to convene a family welfare conference in respect of the child. The health board will have to report back to the court on what action, if any, it intends to take, for example, it may apply for a care order, a supervision order or a special care order for the child or inform the court of any services or assistance which it intends to provide for the child and his or her family. As with the provision for family conferencing, the court will have the discretion as to whether it should proceed to a finding.

The new powers I have just mentioned will enable the court to deal with children before it on criminal charges without proceeding to a finding, and where the finding would have been one of guilt the consequences of that will be avoided. Where the court proceeds to a finding of guilt, it is being given an array of new imaginative community sanctions which it may impose. Of the ten community sanctions provided in the Bill, eight are new. It is unnecessary at this stage to give details of those sanctions other than to say that their purpose is to ensure an appropriate and suitable sanction for each child whatever the child's needs or misdeeds. These sanctions are of the utmost importance in that they give tangible effect to the principle in the Bill that detention will be an option of absolute last resort.

Debate adjourned.