Dáil Éireann debate -
Wednesday, 15 Jul 2015

Vol. 887 No. 2

Children (Amendment) Bill 2015 [Seanad]: Report and Final Stages

Deputy Clare Daly

I move amendment No. 1:

In page 8, between lines 3 and 4, to insert the following:

“(a) by the insertion of the following subsection after subsection (2):

“(2A) The maximum total period that a child may spend remanded in custody is three months from the date of being remanded in custody by the Court.”.”.

We discussed this issue on Committee Stage. I have tabled a number of amendments, but this is one of the two most important. The objective is to place an upper limit of three months on the time a child can spend remanded in custody. The amendment should be considered in the context of the purpose of the Bill which is to move away from detaining children who get into trouble.

Custody on remand is detention in circumstances where a person has not been convicted of a crime and may never be. We need to bear in mind that it should always be a minimum period for everybody. The Irish Penal Reform Trust recommends six months as the absolute maximum in all cases. My amendment seeks to have a limit of three months because three months in the context of a child's life is perfectly balanced.

We should remember that four out of ten children in custody on remand have an intellectual disability. They often come from families where one family member has a criminal conviction. The majority of these children have behavioural problems, mental health difficulties and so on and often experience drug and substance abuse. They are vulnerable young people who need our support. I do not believe we can in any way stand over their being detained for periods of indefinite duration. My amendment seeks to place a time limit on that period.

Most of the young people in question end up getting no sentence. In 2014 only 27% of the young people detained received a detention order on conviction. In 2013 the figure was 45%. Therefore, between one half and three quarters of them end up not getting a conviction. We need to keep their time in incarceration to a minimum because of the damage it can potentially do to young people.

We discussed this issue on Committee Stage. When children are remanded in custody, it is incredibly important to separate them from those who have been convicted. The Bill, as it stands, states we should seek to do this as far as is practicable. I want this to be the case in all circumstances. On Committee Stage the Minister said he was striving to do this but that we would not have the level of accommodation necessary. There is no assigned remand unit on the Oberstown campus. There has been a consistently high number of children remanded, which means that the issue of solitary confinement that the Minister raised on Committee Stage would not arise.

The Bill is supposed to be about prevention. The young people concerned need sustained intervention. One of the problems lies with people being remanded in custody, for example, for breach of bail conditions. This has to stop, as we said on Committee Stage. People who are given bail are not given sufficient support to be able to understand the conditions set, to work with them and so on. We need community programmes. Non-detention-based initiatives have to be implemented while people are awaiting trial. The amendment would encourage this. This is about having an upper limit and giving less wriggle room to the State in that regard.

On Committee Stage the Minister said that what I was trying to do represented a blunt instrument and that it would not take into account the circumstances that gave rise to the remand in custody and that very serious charges might be a factor. He also mentioned the issue of the importance of the safety of the public. Putting an upper limit on the time somebody can spend on remand has nothing to do with any of these issues. I do not suggest not detaining them. I am saying they should be detained for a maximum of three months and that they should then be dealt with at trial. If they are convicted and there is to be a further period of detention, so be it, but they should not be kept in abeyance in the run-up to this. That is entirely consistent with human rights practices and what happens in other countries. I could list a range of international human rights agreements that support my view. In England, for example, time spent in custody on remand is limited to six months. In Spain it is only for very serious crimes and never for minor offences. When dealing with children, the maximum length of time spent in custody is three months. In Portugal I believe it is also three months. That is all I seek to do. I hope the Minister will reconsider the matter.

Deputy Sandra McLellan

I support the amendment. Even three months in a detention centre on remand can be a very long time for a young person. If at all possible, children on remand should be kept separate from those who have been convicted of a crime. For a child, being placed on remand for the first time can be very traumatic and scary. The Minister should reconsider the matter.

Minister for Children and Youth Affairs (Deputy James Reilly)

As Deputy Clare Daly pointed out, her amendment proposes to insert a new provision in section 88 of the existing Children Act which deals with the remand of children in custody. The effect of the proposed amendment would be to impose a maximum period of remand in custody for a child of three months from the date of being remanded in custody by the court. Section 88 of the Children Act allows a court to remand in custody a child who is charged with or found guilty of an offence, who is being sent forward for trial or in respect of whom the court has postponed a decision. The section in question also provides that a court shall not remand a child in custody if the only reason for so doing is that he or she is in need of care or protection or the court wishes Tusla, the Child and Family Agency, to assist it in dealing with the case. In addition, section 76B of the existing Act provides for the involvement of Tusla in such cases, as deemed necessary by a court.

As provided for in various District Court rules, a child may be remanded in custody in the Children Court for an initial period not exceeding eight days and subsequently for an individual period not exceeding 15 days. Children can be remanded in custody for successive periods within this framework, but they are brought back before the court at regular intervals, which is important to remember. It is not as if they are being placed on remand for three months.

While there is no legislation governing the length of remand periods in the Circuit Criminal Court for children, the right to an expeditious trial applies to every accused person, irrespective of age. Section 100 of the current Act provides that where a court is satisfied as to the guilt of a child, it may remand him or her in custody for the purpose of the preparation of any necessary report but not for longer than 28 days. This period may only be extended once by a maximum of 14 days.

It is also important to note that all children remanded in custody have, of course, access to independent legal advice. Children remanded in custody can apply to a court to be remanded on bail at any time and a refusal of bail can be appealed to the High Court in accordance with the Bail Act 1997.

The effect of the amendment as drafted would be to impose a maximum period of remand in custody of three months for all children. This would create a blunt rule which would apply in all cases relating to children in the criminal justice system, irrespective of the circumstances where a remand in custody may be considered necessary by the courts. This should not occur in the case of minor offences but if a 16 or 17 year old is accused of murder or manslaughter and the Deputy wants to impose a maximum remand of three months when court hearings are not within our control and it is necessary to have a Garda investigation to gather evidence, I do not believe this is wise. For these reasons I am not accepting the amendment.

I want to emphasise another point the Deputy alluded to, which might be the subject of further amendments. We absolutely want to ensure that detention, whether remand or otherwise, is the course of last resort and should never be because Tusla's assistance is required and awaited or because there are child protection issues. That would not be appropriate and will not occur under this Bill.

Deputy Clare Daly

The measures the Minister outlined that are available already to young people are welcome. I do not object to them. I broadly welcome this Bill. We are trying to make it better. We are not outlawing the possibility of a young person's being remanded in custody. We are trying to ensure the State is forced to act and the onus is on it to expedite the trial. If a young person is accused of a very serious crime, the Minister says the Garda might need time to get the evidence. If that young person's liberty has been taken and he or she has been brought before the courts and charged, I should hope the Garda already had a significant body of evidence. All the amendment states is that the person should be brought to trial and, by all means, if the court decides the person's liberty needs to be taken and he or she needs to be detained, that should be done, but recommendation 20 of the Council of Europe 2003 states that young people should be remanded in custody for no longer than six months before the commencement of their trial. This happens in England and Spain, and in Portugal it is three months. There is nothing bizarre, outlandish or revolutionary about what is being done here and it is in compliance with the idea of expediting trials, which we should strive for. The Minister says everybody has a right to an expeditious trial. They do but that does not always happen. Making it unlawful to detain a young person on remand for longer than three months and specifying that in law will help because those cases should be processed more quickly given the age of the young person.

Deputy James Reilly

We all want the best outcomes for children. We do not want children to be detained unless it is absolutely essential. As Minister for Children and Youth Affairs, my focus is on children. As a politician, however, I, like the Deputy, have to take into consideration the victims. If a person who lost a loved one through manslaughter or murder saw the perpetrator get off on the basis of the technicality of three months being the law, there would be a very serious situation on our hands. I would hope that in practice there will be very short periods of detention for remand. The evidence points to the fact that we see it as the very last resort because so few people who are on remand are convicted because other methods are found to deal with their situation.

Deputy Clare Daly

It is not a question of the perpetrator of a crime getting off on a technicality. That is the wrong issue. It is a question of somebody who has been charged with a crime having a right to an expeditious trial in order that the courts can then decide if the person is guilty. It is a question of people being held at a time when they have not been convicted and we do not know whether they are guilty because the courts have not adjudicated. This happens as a matter of course in many European countries and is recommended by the European Council.

Amendment put:

The Dáil divided: Tá, 40; Níl, 68.

Tá

• Aylward, Bobby.
• Boyd Barrett, Richard.
• Broughan, Thomas P.
• Browne, John.
• Calleary, Dara.
• Collins, Joan.
• Colreavy, Michael.
• Cowen, Barry.
• Daly, Clare.
• Dooley, Timmy.
• Ellis, Dessie.
• Ferris, Martin.
• Fitzmaurice, Michael.
• Fleming, Tom.
• Halligan, John.
• Healy, Seamus.
• Healy-Rae, Michael.
• Mac Lochlainn, Pádraig.
• McConalogue, Charlie.
• McDonald, Mary Lou.
• McGrath, Finian.
• McGuinness, John.
• McLellan, Sandra.
• Martin, Micheál.
• Mathews, Peter.
• Murphy, Catherine.
• Murphy, Paul.
• Naughten, Denis.
• Ó Caoláin, Caoimhghín.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• Ó Snodaigh, Aengus.
• O'Sullivan, Maureen.
• Pringle, Thomas.
• Ross, Shane.
• Shortall, Róisín.
• Smith, Brendan.
• Stanley, Brian.
• Troy, Robert.
• Wallace, Mick.

Níl

• Bannon, James.
• Barry, Tom.
• Bruton, Richard.
• Butler, Ray.
• Buttimer, Jerry.
• Byrne, Catherine.
• Byrne, Eric.
• Cannon, Ciarán.
• Carey, Joe.
• Coffey, Paudie.
• Conaghan, Michael.
• Connaughton, Paul J.
• Coonan, Noel.
• Corcoran Kennedy, Marcella.
• Creed, Michael.
• Deering, Pat.
• Doherty, Regina.
• Donohoe, Paschal.
• Dowds, Robert.
• Doyle, Andrew.
• Durkan, Bernard J.
• English, Damien.
• Feighan, Frank.
• Fitzgerald, Frances.
• Fitzpatrick, Peter.
• Flanagan, Terence.
• Gilmore, Eamon.
• Griffin, Brendan.
• Harrington, Noel.
• Heydon, Martin.
• Humphreys, Heather.
• Humphreys, Kevin.
• Keating, Derek.
• Kehoe, Paul.
• Kelly, Alan.
• Kenny, Seán.
• Kyne, Seán.
• Lawlor, Anthony.
• Lyons, John.
• McEntee, Helen.
• McFadden, Gabrielle.
• McGinley, Dinny.
• McHugh, Joe.
• McNamara, Michael.
• Mulherin, Michelle.
• Murphy, Dara.
• Neville, Dan.
• Nolan, Derek.
• Ó Ríordáin, Aodhán.
• O'Donovan, Patrick.
• O'Dowd, Fergus.
• O'Mahony, John.
• O'Sullivan, Jan.
• Penrose, Willie.
• Perry, John.
• Phelan, Ann.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Reilly, James.
• Ryan, Brendan.
• Spring, Arthur.
• Stagg, Emmet.
• Stanton, David.
• Timmins, Billy.
• Tuffy, Joanna.
• Twomey, Liam.
• Wall, Jack.
• White, Alex.

Tellers: Tá, Deputies Clare Daly and Sandra McLellan; Níl, Deputies Paul Kehoe and Emmet Stagg.

Amendment declared lost.

Acting Chairman (Deputy Jerry Buttimer)

Amendments Nos. 2 and 7 are cognate and may be discussed together, by agreement. Is that agreed? Agreed.

Deputy Sandra McLellan

I move amendment No. 2:

In page 9, between lines 35 and 36, to insert the following:

“(3) Where an inquiry is held under subsection (1) the child shall be provided with an opportunity to be heard and to respond to any allegation of disciplinary breach orally or in writing.”.

Although the Bill makes provision for the director of the Oberstown campus to hold an inquiry into an alleged breach of discipline and inform the child of the details of that inquiry, no provision is made for the child to respond or be heard. In order that provision is made for a child to be heard fairly if he or she is accused of being in breach of discipline or brought before an inquiry, we must ensure the procedures children encounter in detention settings are understandable to them and take into account their age and vulnerability. It could very well be a child's first time in such a setting, which is an intimidating and traumatic experience for any child. We must also be aware that many children within the system have literacy difficulties. This must be taken on board when addressing any disciplinary measure. Any reason for the imposition of a sanction should be recorded in writing and communicated to the child in ordinary language. The opportunity to be heard is of such importance, in terms of a child's rights and due process, that it should be provided for in the Bill.

Deputy Clare Daly

In the matter of a child's opportunity to be heard and respond to an allegation of a breach of discipline, as the Bill stands, a child does not have the right to respond. The stakes, however, are high. Potentially, the forfeiture of 14 days remission, effectively a loss of liberty, is at stake. Therefore, the child must be heard. It would be good to write this into the Bill.

Deputy James Reilly

Sections 18 and 19 of the Bill will apply a new disciplinary system to children subject to a detention order. Section 6 inserts a new section 88B in the Children Act. Section 88B will apply the same disciplinary system to children remanded in custody as applies to children subject to a detention order. Some exceptions to the application of the disciplinary system to children remanded in custody will necessarily apply such as forfeiture of remission which can only apply to a child subject to a detention order.

Amendment No. 2 proposes to insert a new subsection (3) into section 88B to provide that where a disciplinary inquiry is held in respect of a child remanded in custody, he or she shall be provided with an opportunity to be heard and respond to any allegation of a breach of discipline orally or in writing. Amendment No. 7 proposes to insert a new subsection (2A) into section 201 to provide that where a disciplinary inquiry is held in respect of a child in detention, he or she shall be provided with an opportunity to be heard and respond to any allegation of a breach of discipline orally or in writing.

Subsection (3) of section 201 which is being inserted into the principal Act provides for the procedure relating to an inquiry to be prescribed by the Minister. The procedure prescribed would include matters providing for fair procedures such as providing the child with an opportunity to be heard and respond to any allegation of a breach of discipline. It is intended that the operational and practical matters relating to such an inquiry will be prescribed and that they will include matters relating to fair procedures for a child. Matters such as giving an opportunity to be heard and respond orally or in writing are basic principles of fair procedures and natural justice and will be incorporated in the regulations made.

It is not proposed to incorporate some of the procedures relating to an inquiry in primary legislation and incorporate other procedures in secondary legislation. All matters relating to a disciplinary inquiry by the director will be prescribed in regulations. The regulations will apply to children subject to a detention order and children who are remanded in custody.

The issue of fair procedures proposed in the amendment will be comprehensively addressed in regulations to be adopted on foot of enactment of section 18(3). At a recent meeting with the Office of the Ombudsman for Children about the Bill my officials undertook to consult that office in the drafting of the regulations. I do not, therefore, propose to accept amendments Nos. 2 and 7.

Deputy Sandra McLellan

I thank the Minister for his reply. It is very important that a child be given a fair hearing, especially if he or she is in breach of discipline. He or she must be afforded an opportunity to respond orally or in writing. We must also understand some of the children in question have very poor communication skills and literacy problems. The are entitled to a right to reply - verbally or in writing - and it should be afforded to them.

Deputy James Reilly

I fully accept what the Deputy is saying. It will be provided for in regulations.

Amendment put and declared lost.

Deputy Clare Daly

I move amendment No. 3:

In page 10, line 9, to delete “offence.” and substitute the following:

“offence, and may be less. The Court shall have regard to the age, level of maturity, best interests of the child and the principle of detention as a last resort in determining the nature of any penalty imposed.”.

This amendment provides for that which the Bill is supposed to be about. The principle that detention should be seen as a last resort is not actually provided for in the Bill. On Committee Stage the Minister rejected the amendment on the grounds that detention was a measure of last resort as set out in section 96(2) of the 2001 Act. While that section states detention should be seen as a measure of last resort, the amendment would be more emphatic in stating it "shall" be. It provides that there would be no latitude whatsoever for judicial discretion in this regard. It may seem like I am nitpicking, but the issue merits it, as we are talking about the welfare of children. It is vital that we reiterate at every opportunity the clear principle that detention, including on remand, should be seen as a last resort for children. This is a clear requirement of the Convention on the Rights of the Child.

Apart from the principle that detention should be seen as a last resort, amendment No. 3 would also provide that in handing down a sentence of detention, the court should have regard to the child's age, maturity and best interests. Section 96 of the principal Act is rather loose, stating the court may take these matters into account. That is not good enough. The amendment would not interfere with section 96 but would merely strengthen it in order to ensure the best interests of the child would at all times be considered. The Minister was keen to emphasise this on Committee Stage as the Government's intention in the Bill. I do not see why there should be a difficulty in incorporating it.

Deputy Sandra McLellan

Rehabilitation should be the first option when addressing minors with issues. The State has a duty to protect and facilitate children who are experiencing difficulties in their lives. We need to treat these children as minors, not as adults or criminals. They must be afforded all of the supports they need for rehabilitation. That should be the State's first priority. While the Bill gives consideration to the principle of equality of treatment between children in detention schools and adults in the prison system, the wording could reflect the spirit of the Children Act 2001 more closely by emphasising the importance of the principle that detention should be seen as a last resort for children.

Deputy Robert Troy

I support the amendment. Without question, as everyone will agree, the principle underpinning the Children Act is that detention should be seen as a measure of last resort. I fail to see, therefore, why the Minister is opposing the amendment, or how accepting it would in any way diminish or weaken the Bill. All it could do is strengthen it by ensuring it would make it explicit that detention was a measure of last resort. As previous speakers rightly said, we should be in the business of rehabilitating, supporting and working with children who find themselves in a particular position.

I visited Oberstown recently as part of the Oireachtas Joint Committee on Health and Children. The building is magnificent, but, ultimately, the children who end up there are captive. They are prisoners in a building, which does nothing to rehabilitate them. If children end up in such a position, society has failed them. Putting them in a place such as Oberstown should be seen as a last resort. I hope the Minister will take on board the amendment in the spirit in which I am sure it was submitted.

Deputy James Reilly

Amendment No. 3 proposes to insert the words “and may be less” and a statement that “[t]he Court shall have regard to the age, level of maturity, best interests of the child and the principle of detention as a last resort in determining the nature of any penalty imposed” into section 149(1) of the Bill.

On the insertion of the words "and may be less", it is provided at section 149(1) that the period of detention imposed on a child by a court shall not be more than the period of detention or imprisonment that could be imposed on an adult. That does not mean that a lesser period of detention cannot be imposed on a child. It is inherent in the provision that the period of detention imposed on a child may be less than that imposed on a person of full age and capacity.

Section 96(4) of the Act provides for the principles relating to the exercise of criminal jurisdiction over children. It provides that the penalty imposed on a child for an offence should be not greater than that which would be appropriate in the case of an adult who commits an offence of the same kind and may be less. It does not state it "shall be less". It already includes the words "and may be less". A penalty may include any one of a number of sanctions ranging from community sanctions to detention as a measure of last resort. I do not consider inserting the words "and may be less” is necessary as section 149(1) already implicitly makes provision for a lesser period to be imposed on a child. In addition, section 96(4) is explicit on this point, clearly providing that the penalty imposed by a court on a child which may include detention as a measure of last resort may be less than that which would be imposed on an adult.

On adding the words, “The Court shall have regard to the age, level of maturity, best interests of the child and the principle of imprisonment as a last resort in determining the nature of any penalty imposed", the principles proposed in the amendment are already explicitly provided for in the Children Act 2001, as the Deputy acknowledged.

Part 9 provides for the powers of the courts in relation to child offenders. As I have mentioned, section 96 provides for the principles relating to the exercise of criminal proceedings in the case of children.

Amendment put and declared lost.

Acting Chairman (Deputy Jerry Buttimer)

Amendments Nos. 4 to 6, inclusive, are related and will be discussed together.

Deputy Clare Daly

I move amendment No. 4:

In page 10, to delete lines 10 to 12 and substitute the following:

“(2) The court shall not impose a period of detention in excess of three years.”.

Amendment No. 4 relates to providing for a maximum sentence of three years for children. Maximum sentences for juvenile offenders are common elsewhere in Europe. This country is unusual in the fact that we have not had a maximum sentence since 2006. For example in Spain, between the ages of 14 and 16 years there is a maximum period of four years, irrespective of the crime committed, while between the ages of 16 and 18, it is eight years. In Portugal the maximum period of detention for children is three years; in Germany, five years and in Sweden and Switzerland, four years. The Children Act 2001 contained a provision providing for an upper limit on the length of time a child could spend in detention and did not permit the courts to give a sentence of more than three years. I do not understand the reason such a provision cannot be contained in the Bill. If it was acceptable then, why was the provision changed and why can it not be included now? I compliment the Minister on what is, generally, very good legislation. However, it is based on the premise of assisting vulnerable young people and not seeing them as criminals but as people who need assistance. If detention is supposed to be about rehabilitation and not punishment, three years is a considerable time to work with a person. Engaging with people after their release is equally important, be it on issues relating to drug addiction, their mental health or whatever else.

Amendment No. 5 is very important as it deals with a court giving its reasons in writing for the handing down of a sentence involving detention. On Committee Stage the Minister noted that the writing down of judgments by judges was under review elsewhere. The strategic review group on penal policy recommended that such an approach be taken. A working group set up by the Minister for Justice and Equality is undertaking this work and examining the entire area. The Minister suggested that if we were to include the measure now, we would be jumping the gun. I do not agree. The fact that these two organisations support the measure and that the Law Reform Commission suggested it in 2003 also means that we are heading in that direction. Why, theredore, would we not be ahead of the posse with legislation dealing with children? That would be beneficial because data on child offenders in this country are scrappy and data collection is left to organisations such as the Irish Penal Reform Trust and the Jesuit Centre for Faith and Justice. The State with all of its resources should support them in their job of gathering data.

The amendment would assist in that regard because if we want to understand the current use of imprisonment and detention and encourage a more select use of detention as a sanction, it is essential that information on the reasons for the handing down of sentences involving a term of detention must be publicly available. This is particularly important in the case of children, not just because they are children but because it can help us to gain a more thorough understanding of the social inequalities which are such a feature of the lives of children who end up in the criminal justice system and of which they are often the victims. If we were to include the change proposed in the amendment, it would focus judges on the reasons for imposing custodial sentences, promote consistency in sentencing and provide clarity and transparency for courts, victims, offenders and the public and would not involve any extra work for the Judiciary because judges already have to give their reasons. It would just mean they would have to write them down. I do not think that would kill them and it would be a worthwhile social project which other aspects of the criminal justice system are examining. We could be ahead of the posse in accepting amendment No. 5.

Deputy James Reilly

As we addressed the issue extensively on Committee Stage, I do not believe there is much point in reading through all of what was said then. As I said previously, it is not unreasonable to talk about a maximum sentence of three years for children who have mental health issues or drug addiction problems, in particular very young children aged 13 or 14 years. However, if one has a 17 year old on a serious assault charge or a sex offence charge or in a serious drug case involving not alone use but also dealing and, most important of all, someone who is found guilty of a murder charge, I do not agree with the suggestion made by the Deputy that the maximum penalty should be three years and that the child should be out of prison at the age of 20. We must remember that there are victims involved and their families. I do not think a one-size-fits-all approach can be used. We have a judicial system that affords judges discretion to allow them to adjudicate on the specific circumstances of each individual case and the impact of the crime on victims and their families. I am sorry, but I cannot accept the amendments.

Deputy Sandra McLellan

Somebody under the age of 18 years should be given a chance. He or she should be assessed regularly according to his or her age and should not be thrown in prison for in excess of three years. Many such children have learning difficulties, special needs and mental health issues. We must work on the basis that a young child can be rehabilitated.

With regard to amendment No. 6, in cases in which the liberty of a child is at stake, it is important that there be clarity in such significant decisions. That is why I believe judgments should be in writing as that would promote consistency in sentencing and ensure transparency for victims, offenders, legal practitioners and the public.

Deputy Clare Daly

I will not rehash the arguments we made on Committee Stage either, but children are different. If the Minister is worried about 17 year olds, he could consider putting them in a different category, as distinct from 13 and 14 year olds. In Sweden they do not incarcerate anybody under the age of 15 years, no matter what the crime is. In the main, we are talking about vulnerable children who need assistance and support.

They should not be identified and tagged as criminals but as young citizens who need serious intervention and help. It is normal to place limits on the length of time they should spend in detention. Given that it happens in other countries and we previously had a three-year limit in place, it would not be radical. I will not rehash the arguments made.

The Minister did not comment on amendment No. 5 which I deliberately split off to give him the luxury of supporting one without the other, given that he does not like the amendment that would implement a maximum limit of three years. Amendment No. 5 contains the points I made at length about the court giving its reasons in writing, which is critical for all of the reasons I outlined such as the gathering of data and consistency. I do not see why he could not incorporate it.

Deputy James Reilly

Section 143(2) provides that where an order is made for the detention of a child, the court making the order shall give its reasons for so doing in open court. On Committee Stage I brought forward an amendment to section 143 of the Act to provide for the insertion into section 143 of the words "in language that is appropriate to the age and level of understanding of the child concerned". The Deputy's proposal is, therefore, provided for. Her contention about children and mental health and other issues is provided for in so far as orders can be made for detention and supervision, which allows for early periods of release to see how they get on in the community. The difficulty is that one cannot apply a law, as the Deputy has suggested, regardless of the seriousness of the crime. While the Deputy is correct that for certain crimes, there is a cap on the duration of time for which a person can be detained, it is done on a stratified basis. Her proposal indicates that regardless of the seriousness of the crime involved, it could never exceed a three-year sentence, which is unreasonable.

Deputy Clare Daly

The Minister has said it cannot be done. Of course, it can be done and it is done in many other jurisdictions. I appreciate his amendment on Committee Stage which has improved the position. While it is good that the reasons will have to be given in open court and in language the child can understand, the amendment does not specify that they be given in writing. Despite the State spending millions of euro on digital audio recording systems in the courts, in many instances, there is no access to the recordings or they are turned off. Putting the reasons in writing would provide a better record.

Amendment put and declared lost.

Deputy Clare Daly

I move amendment No. 5:

In page 10, between lines 12 and 13, to insert the following:

“(3) Where a court imposes any period of detention on a child it shall give its reasons for doing so in writing in language that is appropriate to the age and level of understanding of the child.”.”.

Amendment put and declared lost.

Deputy Sandra McLellan

I move amendment No. 6:

In page 10, between lines 12 and 13, to insert the following:

“(3) The Court shall not impose a period of detention in excess of three years. Where a court imposes any period of detention on a child it shall give its reasons for doing so in writing.”.”.

Amendment put and declared lost.

Deputy Clare Daly

I move amendment No. 7:

In page 24, between lines 36 and 37, to insert the following:

“(2A) Where an inquiry is held under subsection (1) the child shall be provided with an opportunity to be heard and to respond to any allegation of disciplinary breach orally or in writing.”.

Amendment put and declared lost.

Acting Chairman (Deputy Jerry Buttimer)

Amendments Nos. 8, 10 and 12 are related and will be discussed together.

Deputy Clare Daly

I move amendment No. 8:

In page 25, between lines 6 and 7, to insert the following:

“(5) At the conclusion of the inquiry, if a finding of a disciplinary breach under section 201 has been made and/or if a sanction has been imposed under section 201A, the child shall be informed of his or her right to send to the Director, for transmission to the Minister, a petition concerning the finding or sanction or both the finding and sanction, and he or she shall be informed of the time limit of 7 days after the date of being informed of the finding and the imposition of any sanction for the submission of such a petition, as provided in section 201B(1).

(6) At the conclusion of the inquiry, if a finding of a disciplinary breach under section 201 has been made and if a sanction of forfeiture of remission of portion of a period of detention has been imposed, the child shall be informed of his or her right to notify the Director of his or her intention to appeal against the finding or sanction, or both finding and sanction, to an Appeal Tribunal, and he or she shall be informed of the time limit of 21 days after notification of the finding or sanction to notify the Director as such, as provided for in section 201C(1)(b).”.”.

I raised these amendments on Committee Stage because the Minister had said he hoped to deal with some of the issues but was not sure how he would get on. He got on pretty well and given that amendment No. 10 in his name covers the issues raised in amendment No. 8, I will not press it.

On a small, technical point, amendment No. 12 would give the Minister the power to affirm, modify, suspend or revoke a finding, as well as a sanction. While in another amendment he is dealing with the findings, is it not necessary to insert my amendment in order to be in line with section 201B(1) which allows a child to petition the Minister on a finding, as well as a sanction? He has already allowed a child to petition him on a finding, as well as a sanction, which I welcome. My amendment would specify only when a child petitioned the Minister, would he have the power to affirm, modify, suspend or revoke a finding, as well as a sanction. It is a technical point and I hope I am not melting anybody's head. The Minister should include it in order to make the section compatible with his amendment, with which I agree.

Deputy James Reilly

I thank the Deputy and appreciate that she is not pressing amendment No. 8, given that amendment No. 10 encapsulates the issue.

I do not propose to move amendment No. 11 which would amend the shoulder note in the Bill at section 201B. The shoulder note will be updated administratively, given that it does not form part of the provisions of the Bill. When updated, the revised marginal note will more appropriately reflect the wording of section 201B to provide for a petition to the Minister by a child against a finding of a breach of discipline, a sanction, or both a finding and a sanction.

On amendment No. 12, I refer to amendments I brought forward in the Seanad and which were agreed to on Committee Stage. The amendments made to section 201B(2) provide that where the finding of the director is a subject of the petition, the Minister may affirm, modify or revoke the finding and where the sanction imposed by the director is a subject of the petition, the Minister may affirm, modify, suspend or revoke the sanction. The purpose of the amendment proposed appears to be to enable the suspension of a finding. A suspension of a finding would give rise to uncertainty for a child. It is more appropriate that a finding be affirmed, modified or revoked with certainty and that there be a clear outcome for the child following a petition to the Minister arising from a finding of a breach of discipline. I do not propose, therefore, to accept amendment No. 12.

Amendment, by leave, withdrawn.

Deputy Clare Daly

I move amendment No. 9:

In page 25, between lines 31 and 32, to insert the following:

“(1A) Any child who breaches the rules of a children detention school may be sanctioned on the instructions of the Director of the school in a way that is both reasonable, proportionate and within the prescribed limits.

(1B) Without prejudice to the power of the Minister to prescribe limits for the disciplining of children detained in children detention schools, the following forms of sanction shall be prohibited:

(a) corporal punishment or any other form of physical violence;

(b) deprivation of food or drink;

(c) treatment that could reasonably be expected to be detrimental to physical, psychological or emotional well-being; or

(d) treatment that is cruel, inhuman or degrading.”.

Amendment put and declared lost.

Deputy James Reilly

I move amendment No. 10:

In page 26, to delete lines 14 to 18 and substitute the following:

“(7) When the Director informs a child under subsection (1) of a finding that the child has committed a disciplinary breach and whether or not the Director imposes a sanction on the child under that subsection in respect of the disciplinary breach, the Director shall explain in ordinary language to the child the content of section 201B(1) and, if any sanction imposed consists of or includes forfeiture of remission of portion of his or her period of detention, of section 201C(1).”.

Amendment put and declared carried.

Amendment No. 11 not moved.

Deputy Clare Daly

I move amendment No. 12:

In page 26, line 40, after “sanction” to insert “and/or finding”.

Given the excellent explanation by the Minister, I withdraw the amendment.

Amendment, by leave, withdrawn.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Minister for Children and Youth Affairs (Deputy James Reilly)

I thank the Deputies for their co-operation and support for the main thrust of the Bill which is to improve outcomes for children and end the practice of people under the age of 18 being detained in the prison system rather than in detention centres which are focused more on rehabilitation and education and to give them the best chance in life.

Deputy Clare Daly

I compliment the Minister and his staff. It is a great step forward and igood that we are passing this legislation before the recess. It is an important departure from the dark old days when children, like women, were treated as vessels. The Bill treats them as individuals with problems who can be worked with and make a valuable contribution to society. It is a great body of work. Well done.

Deputy Sandra McLellan

I, too, thank the Minister and his staff and recognise that it is good legislation.

Question put and agreed to.

Acting Chairman (Deputy Jerry Buttimer)

The Bill which is considered to be a Bill initiated in Dáil Éireann in accordance with Article 20.2.2° of the Constitution will be sent to the Seanad.