Sinn Féin welcomes this Bill, the aim of which is to ensure that children of 18 years and under will no longer be detained in the adult prison system in order to end the practice of sending them to St. Patrick's Institution. The Bill also allows for the amalgamation of child detention schools into one school at Oberstown, with the aim of capitalising on existing reforms in the system. Irish NGOs, the Irish Council for Civil Liberties, the Irish Penal Reform Trust and many international organisations, including the United Nations, have been calling for many years for the closure of St. Patrick’s Institution and an end to the detention of children in adult prisons. There is unanimous agreement across the child protection and criminal justice spectrum on the importance and significance of ending the practice of detaining children in adult prisons.
The Irish Penal Reform Trust has pointed out repeatedly how adult prisons are completely unsuitable to meet the particular needs of young offenders. This sentiment was echoed by the Ombudsman for Children, Dr. Niall Muldoon, who stated rehabilitation must be a paramount consideration in the detention of young people. Both the Ombudsman for Children and the Irish Penal Reform Trust agree that Oberstown is the most appropriate environment for the small number of young people for whom detention is necessary. However, both entities have expressed concern over the findings of a report by HIQA, published on 23 February 2015, concerning two inspections it carried out on the Oberstown centre in October and November 2014. HIQA found that, of a total of ten standards, the children detention schools met just one in full, that of education. Six standards were found to require improvement, and the failure to meet three standards was found by HIQA to present "significant risk". These were in the areas of single separation, the management of medication, and staffing and training issues. The Irish Penal Reform Trust is particularly concerned over reports that single separation was used due to staff shortages. Concerns about insufficient staffing, staff training and high levels of staff absenteeism are also detailed in the inspection report.
In a 12-month period, more than 700 cases of single separation were recorded at Oberstown, with one child spending more than 83 hours in isolation over a four-day period. An incident also occurred where up to seven staff members were involved in restraining a child in a manner that involved the use of handcuffs. The inspection of Oberstown detention campus by HIQA took place in autumn last year, and reference was made to the young person’s physical strength in a plan that mentioned the handcuffing incident. The head of care told inspectors that there was no formal review of the incident but that CCTV was reviewed, that five to seven staff were involved and that the restraint was “all over the place”. The head of care said that handcuffs should not be used within the campus. HIQA said at the time that it was not clear whether the service took any lesson from the incident to prevent it happening again and improve the safety and quality of the service. Some 30% of staff at that point had not received up-to-date training in behaviour management. It must be asked whether these are the standards deemed acceptable. The inspection also found that children were “not always safe” because best practice was not always implemented and that single separation was not a facility used as a last resort.
I welcome the Bill and that, finally, critical issues affecting young people in detention are being addressed. However, we must acknowledge the past failures regarding children in custody and vow to do all in our power to avoid a recurrence of such unnecessary traumatic experiences. The effects of single separation on children can cause lasting psychological impacts. Protection rooms were used in Trinity House, where a child was locked in a small room without natural light, while in other units children spent time in single separation in locked time-out rooms, in their bedrooms or in activity rooms. It is inhumane to put a minor through such treatment. Apparently, there was a variety of reasons for the use of single separation, including threats of suicide, being under the influence of drugs or concerns relating to threatening behaviour.
One child was locked in a room for 83 hours and 45 minutes over four days. Another spent 23 hours and 30 minutes over a two-day period in single separation, excluding sleeping time, because staff were concerned the young person had prohibited items and would not give them to staff. Shorter periods of single separation were also recorded, such as periods of 30 minutes when a child was smoking in school. Ms Jennifer Gargan, the director of Empowering People in Care, EPIC, an independent association that works with and for children and young people living in care, said at the time that the use of single separation of young people is “deeply concerning”. The group stated the report’s findings were “shocking” and that it was clear young people were not being given the opportunity to address their offending behaviour.
Under the Children Act 2001, the detention of children must be used only as a sanction of last resort. Therefore, the under-18s detained at Oberstown, and in the adult prison system, should, by definition and legislation, be those who have committed the most serious crimes and who present with the most challenging behaviour. However, according to the Children’s Rights Alliance Report Card 2015, of the 96 children detained during 2014, only 27% received a detention order on conviction. This startling figure has led the Irish Penal Reform Trust to suggest detention is not being used as a last resort and the Ombudsman for Children to express concern that child detention is being used for welfare purposes. We in Sinn Féin believe more frequent inspections and the regular publication of reports are needed if progress is to be monitored. This should be done to ensure the detention school is meeting its objectives.
Another aspect to child detention that must be considered is the lack of adequate procedures and supports in place for those coming to the notice of gardaí. It has been proven that in areas where supports do exist for minors who are exposed to violence or trouble in their communities, the effects of having those in place significantly reduce the number of children proceeding to getting into trouble with the law. We must start discussing the issues of early intervention and prevention. If we were to focus energy and resources on preventive measures and on providing support for our young people within our communities, the need for reactive measures would not be so great. The thinking and attitude must change with regard to how we treat young people. While I acknowledge that much good work has been done in some areas, quality community Garda schemes and Garda liaison officers need to be part of that change.
Recently I attended the launch of Picture Your Rights: A Report to the UN Committee on the Rights of the Child from Children Living in Ireland. The Minister, Deputy Reilly, was also present. The excellent report was researched by children and it was from their viewpoint and for children. Its intention is to inform the Minister for Children and Youth Affairs on the very real issues affecting children in Ireland today. It was compiled by children of all ages and supported by the Children's Rights Alliance and UNICEF Ireland. The views and concerns are representative of a wide range of young people from different backgrounds. The report pointed towards the fact that the 1,148,687 children in this State make up 25% of the total population and that we now have the highest proportion of children in the European Union. One in every four citizens is a child. These figures further emphasise the importance of investing in children for the future.
One spotlight area raised by children themselves was the desire for increased respect of our teens and their needs, especially within more disadvantaged communities. This leads me back to my point regarding the need for prevention and early intervention.
We must address the heart of the issue here. Young people feel disenfranchised and under-protected. The series of interviews conducted for the report evidenced young people's sense of abandonment in communities. One young person said:
It feels like the police are there to harass, not to protect you. Most trouble happens because there is nothing to do - we just hang around on a wall. In richer areas teens have more to do, more money and more space in their houses. The Guards are afraid of their parents. The Guards feel like they can get away with everything and they overuse their power. We need to get enough of us to tell them to stop abusing their power and understand that we have rights too.
We must listen to what these young people are saying. Government must pay attention to the loud and clear signals being sent. Today, we are discussing the effects and repercussions of children being held in detention and how best to deal with that reality but while going through this legislative process, we must keep at the forefront of our minds the fact that these citizens are under the age of 18 and that rather than treating them as criminals, we need to treat them like valued beings who have the potential to better themselves and reintegrate themselves into their communities if they are given a fair opportunity to change. I was particularly affected by the following statement of another young person in the report which, again, further emphasises the need for Government to listen.
You can't just throw us in the back of a van. They left me in a big concrete cell, freezing with only a pair of football shorts on. I want to ask the Minister, does she really know what goes on in our community, that some of us are being treated badly and verbally and physically abused. Do you care about the community or just your pay check? Juvenile Liaison Officers say they’ll help but they don't. That all affects you when you’re older; people look at you and think 'he wasn’t a good kid' and don't give you a job. Ever since I was a kid I had a bad temper but it's increased rapidly since the Guards started bothering us. I find it harder to control and it keeps building.
In the context of what we are discussing regarding the Children (Amendment) Bill today, these young people's comments are particularly poignant.
There are certain parts of the Bill we believe could be strengthened. We note that section 8 of the Bill amends section 149 of the Children Act 2001 and provides that where a child is convicted of an offence, the period of detention imposed on a child should not exceed that which the court would have imposed on an adult. While it is noted that the purpose of the section is to give consideration to the principle of equality of treatment between children in detention schools and adults in the prison system, considering the importance of the principle that detention should be a last resort for children, we recommend that this provision be amended to more closely reflect the spirit and wording of section 96 of the Children Act 2001.
Section 8 of the Bill also provides that where a period of detention greater than three years is imposed on a child, a court must give its reasons for doing so in open court. It is noted that before it was amended by the 2006 Act, the original Children Act 2001 provision contained an upper limit and did not permit a court to impose a sentence on a child that was in excess of three years. Therefore, we suggest that the proposed provision be amended. It is vital to ensure that the procedures that children encounter in detention settings are accessible to them in light of their age and vulnerability and often their literacy difficulties. While sections 17 and 18 make provision for the Director of Oberstown Campus to hold an inquiry into an alleged breach of discipline and to inform the child of the breach and the time and date of that inquiry, it makes no provision for the right of the child to be heard in such a situation but leaves it to ministerial regulations to prescribe the procedure. Given that forfeiture of up to 14 days remission, which is an effective loss of liberty, is potentially at stake, the underpinning principles of the UN Convention on the Rights of the Child - to participate and to be heard - would require that the child must be given an opportunity to be heard and to respond to any such allegations in the first instance.
While section 17 does provide that the procedure relating to an inquiry may be prescribed by the Minister, we believe the opportunity to be heard is of such importance, both in terms of child rights and due process rights, that it should be included in the Children (Amendment) Bill 2015 itself. Where the sanction imposed is one of loss of remission, the reasons for the imposition of such a sanction should be recorded in writing and communicated to the child in ordinary language. The current section 201(2) of the Children Act 2001 includes an important prohibition on certain forms of discipline including corporal punishment or any other form of physical violence; deprivation of food or drink; treatment that could reasonably be expected to be detrimental to physical, psychological or emotional well-being; or treatment that is cruel, inhuman or degrading. Given the concerns expressed through the recent HIQA report as previously outlined regarding the management of challenging behaviour and particularly the use of single separation, it is unclear as to why this important provision which prohibits certain treatment has not been retained as part of the new section 201. New section 201B sets out a right of petition by the child to the Minister against either the finding or the sanction or both. It is unclear why this petition is to the Minister rather than a child-friendly independent tribunal, for example the Ombudsman for Children. While this is in line with the Prison Act 2007 in respect of adults, it does not take into account the potential vulnerabilities of children and the challenges which a formal petition process might pose for them. Given the existing remit of the Ombudsman for Children in respect of complaints of children in detention, it seems that a right of petition to the Ombudsman for Children may be more appropriate than a right of petition to the Minister.
Sinn Féin wants this legislation to move through the Houses of the Oireachtas and to be passed into law as soon as possible but we must get it right. It is vital the focus is on the welfare and well-being of the children and that this legislation is child-centred and makes the rights of the child a priority. We must create a system which is humane and progressive - a rehabilitation process which encourages all children to reach their full potential rather than a system which negatively impacts our future generations for life.