Children Bill, 1999: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Is mór an onóir domsa an píosa mór dlí seo a chur os comhair an tSeanad and to open the debate on flagship legislation, the Children Bill, 1999. Not alone is it flagship legislation, it is also one of the most important and far reaching Bills to have been brought before the House in many years, because it is a blueprint for a new system of juvenile jus tice and will charter its course for many years to come. The Bill will also affect the lives of many thousands of children and their parents and guardians in coming decades. My wish and belief are that it will affect their lives for the better.

The Children Bill has been a long time in preparation but as evidenced by the broad approval the Minister for Justice, Equality and Law Reform received on its publication in autumn 1999, the wait was worthwhile and well justified. We have used the time wisely to bring a balanced, comprehensive, innovative and imaginative Bill to fruition. The time since publication has also been well used to prepare for the speedy implementation of the Bill.

I do not wish to unduly take up the time of the Seanad to rehearse the many twists and turns in recent years that have eventually culminated in the Bill but it is fair to say that the Bill we are now debating is substantially different from that which has gone before. Its underlying philosophy is radically different, just as its provisions are the distillation of the accumulated wisdom and best practice worldwide in the area of juvenile justice.

I readily acknowledge that the previous Bill, published in 1996, had some good features, which the Minister has incorporated into this Bill. Not for one minute do I doubt or question the commitment of those persons responsible for the publication of the 1996 Bill to overhaul our system of juvenile justice but the Minister believed passionately that our generation of public representatives had realistically only one shot at the type of fundamental overhaul of the system in mind. That is the reason I engaged in a deep analysis prior to producing this radically different and innovative Bill.

My clear focus was to produce enlightened, enduring and forward thinking legislation. In that respect, it was imperative that during this Government the opportunity be used to get it right. In this Bill we have realised that goal.

For the reasons outlined, a thorough reappraisal of the 1996 Bill was ordered, 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 and which took into account best international practice. The aim was also to get the Bill to deal more progressively with parental responsibility and identify and correct the structural weaknesses in the way services are provided for young offenders and disturbed non-offending children. The Minister was also unhappy with the way in which the age of criminal responsibility had been dealt with in the 1996 Bill.

At first it appeared that we might be able to amend the 1996 Bill but 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 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. Senators will agree with me when I say that while we gave it every chance, 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 non-offending children who are out of control. Third, it re-enacts and updates provisions in the 1908 Act protecting children against abuse by persons who have custody, charge or care of them. Finally, it 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 co-ordinated 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 establishment and development of a juvenile justice system that has, despite 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 is essentially 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 parameters of the most up-to-date thinking internationally on how to prevent juvenile offending and further offending by juveniles who have already committed an offence.

The Minister was well aware when preparing the legislation of mistakes made over many years by other countries when revising their juvenile justice systems. Probably the main error, continually repeated, was to devise systems based exclusively on a particular approach to the problem of juvenile offending. In practical terms this meant that the system in vogue was all important. A young offender could only be dealt with within the narrow confines of the system in favour at a particular time, no matter what he or she had done and regardless of his or her needs. Senators 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.

I will outline the major policy areas of the Bill rather than go through it in a sequential manner. It would not be practical to attempt to deal in detail with every provision in the Bill in a Second Stage speech. 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 and will become more apparent when the Bill is enacted and implemented. Thus, Part IV, which places the Garda diversion programme on a statutory basis, is supported by a new principle that obliges the Garda to consider for admission to the programme children who have accepted responsibility for their criminal behaviour. That obligation is subject to the interests of society and Part IV of the Bill. Part VI, which deals with the treatment of child suspects, obliges the Garda to have due regard to the dignity of children as human persons and their vulnerability owing to their age and level of maturity. Part IX establishes the rights of children before the courts charged with criminal offences. These include an important new right which was not in the 1996 Bill, that is, the principle that criminal proceedings will not be used solely to provide any assistance or services needed to care for or protect a child. Part IX also 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 X establishes the principal object of children detention schools. These are the schools which will provide for the detention of children aged from 12 to 15 years, inclusive, who have been found guilty of offences and in respect of whom the courts deem no option other than detention is 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 minds for some time but the decision was based on the belief that as a society we should not criminalise children under 12 years of age; that the alternative policy for intervening with such children, that is, by the health boards, often in concert with other agencies, was credible; and that health board personnel would deal with these children in their usual professional manner.

We were 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 have been 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.

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 us in the context of the proposal in the 1996 Bill to raise the age of criminal responsibility to 10 years. The Minister was unhappy, and said so in his contribution on the 1996 Bill, with the proposal to raise the age to 10 years, and to provide for its eventual raising to 12 years by regulations following reviews at regular intervals. The Minister argued then, and repeats it 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 why we have now raised the age of criminal responsibility from seven years to 12 years.

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 the officials thoroughly researched how restorative justice provisions were operating in other jurisdictions. The outcome was encouraging and the result can now be seen in this Bill. I emphasise that the restorative provisions are additional features to be used only in appropriate cases. They are not mandatory.

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 the modern restorative justice measures to which I have just referred. 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 does have the advantage of involving the child and his or her family in the decision-making process and being a party to the decision. This will increase the likelihood of co-operation and compliance.

The victim of the child 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 usu ally welcomes the opportunity of being present at the conference, and that is borne out in the pilot schemes being operated by 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. However, 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 or not 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 this is borne out in the pilot schemes. Of course, conferencing is a way of ensuring that the interests of victims are not overlooked in situations where they might otherwise be on the sidelines.

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 outlined 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 does proceed to a finding of guilt, it is being given an array of imaginative new 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.

We all know that many parents of difficult and out-of-control children are devastated and often bewildered by their children's anti-social behaviour. They do their best as parents, however inadequate that might be in some cases. However, I think most people are also aware that some parents have a totally irresponsible attitude towards controlling their children. Effectively, they opt out of their responsibilities, sometimes to indulge their own ill-disciplined lifestyles.

The Bill has three provisions dealing specifically with that type of parent. The parents can be bound over to exercise proper and adequate control over their child, where that child has been found guilty of an offence. The parents can be ordered to pay compensation. Before making a compensation order the court must be satisfied of the parents' ability to pay and that there was a wilful failure on the part of the parents to take care of or to control the child that contributed to the child's criminal behaviour.

The third and new provision is one under which the court can make a parental supervision order. As with the compensation order, this order can only be imposed on parents where their child is found guilty of an offence and where the court is satisfied that a wilful failure of the child's parents to take care of or control the child contributed to the child's criminal behaviour. This order provides the court with a carrot and stick option for dealing with such parents. For example, if the court is of the opinion that parents lack the necessary skills to properly look after their child, it can order them to undergo a parenting skills course. Similarly, if the problem is one of substance abuse, the court can order the parents to seek treatment for that abuse. As with all the other orders and powers of the court in the Bill, this order will not be suitable in all circumstances. It might be a suitable response in a relatively small number of cases, that remains to be seen, however, it is very important to give the courts power to deal with whatever situation with which they are confronted.

In formulating the policy on which the Bill is based, a fair balance had to be struck between the needs and interests of the child offender with the protection of the community and what is good generally for society. I have spoken of victims in the context of the conference. Their position is highlighted and protected throughout the Bill. The principles relating to the exercise of criminal jurisdiction over children specifically protect the interests of victims of child offending and the Garda convened conference and the family conference, which will be convened by the probation and welfare service, will be obliged to uphold the concerns of the victim and to have due regard to his or her rights.

I will now deal in more detail with the three Parts of the Bill which specifically relate to the child welfare and protection area. The first of these is Part 2, which establishes on a statutory basis the family welfare conference which will enable health boards to intervene with other agencies at an early stage in relation to children who need special care and protection as defined in the Bill. The second area is Part 3, which amends the Child Care Act, 1991, to impose a duty on health boards to apply for a special care order or an interim special care order in relation to a child residing or found in its area who is in need of special care and protection, which he or she is not likely to receive unless the court grants such an order. The third area is Part 11, which provides for the establishment of a special residential services board. This board will co-ordinate residential services for children detained in detention schools and special care units and will also have a role in individual applications for special care orders and the placement of children in children detention schools.

A major innovation in the Bill is the establishment of family welfare conferences on a statutory basis to deal with children who have been charged with an offence and where their case has been referred to the health boards by the courts and children who are the subject of applications for special care orders. The objective of the family welfare conference is to maximise the use of a child's social and family support networks at a time of crisis in their lives. The concept has been established successfully in a number of countries. In this country, the East Coast Area Health Board has been operating a pilot project which is being evaluated. An interim evaluation has been produced which indicates that the concept can be successfully applied here. In anticipation of the enactment of this Bill and its implementation, the Department of Health and Children allocated £3.5 million to the health boards in this year's letters of net determination to the boards, with instructions to them to introduce family welfare conferences on a phased basis.

The principles underlying the conferences are that: the child's interests are paramount and that in so far as is possible the child is best looked after within its own family; the vast majority of families will make safe plans for children; the co-ordinator responsible for the conference will be independent; there will be private family time for planning; and family plans will be accepted unless they put the children at risk. Research has demonstrated that the family conference process is much more successful in encouraging the participation of family members than the existing care planning processes. It is seen by families and professionals as empowering families to come to their own solutions in co-operation with the professionals. I, therefore, believe that this is a very important innovation in the area of family welfare and child protection.

Part 3 of the Bill amends the Child Care Act, 1991, and imposes a duty on health boards to seek a special care order or an interim special care order in relation to any child in its area whose behaviour is such that it poses a real and substantial risk to their health, safety, development or welfare and requires special care and protection, which he or she is unlikely to receive unless the court makes such an order. This provides an additional range of powers for boards to intervene to ensure that non-offending children with behavioural problems receive proper care, protection and education.

The High Court has held that the 1991 Act does not empower a health board to detain a child. It also held that the State is under a constitutional duty to provide suitable secure accommodation for children who need to be detained for their safety and welfare. A small number of children require this type of secure accommodation because their behavioural difficulties are such that they cannot be catered for in the general residential care system. Under this Part of the Bill, the boards will have responsibility for ensuring the provision and operation of appropriate services and facilities, including special care units, for children who need to be detained in their own interests.

I should emphasise that the Bill is drafted in such a way as to make clear that a child would, except in emergencies, only be detained in such a unit as a last resort. It is a very serious decision to detain a child and the philosophy of the Bill is that the application for a special care order and the detention of children in special care units should only be used as a last resort when all other options have been explored and found not to be feasible. For that reason the Government has built a number of checks and balances into the system to ensure that this will be the case. A health board before applying for an order must first arrange for the convening of a family welfare conference. When the conference has completed its deliberations, if it is still proposed to apply for a special care order, the views of the special residential services board, which will be established under Part 11, must be sought. Where a health board is seeking an interim care order it must be about to arrange a family welfare conference, or a conference must be in place or the board must be in the process of seeking the views of the special residential services board.

The Bill also provides that boards can make alternative arrangements or provide other accommodation for a child who is the subject of such a special care order, as part of the programme for the care, education and treatment of that child. This is fully in line with the philosophy underpinning our child care services which emphasise the need to provide a continuum of services for such children, from family support services to special fostering arrangements to residential care.

In preparation for the implementation of this Part of the Bill, the Government has launched a number of initiatives to tackle the problems of children at risk and those with behavioural difficulties. This year, the Government allocated a further £33 million in revenue for the further development of these services. That means that over £90 million extra has been provided during its term of office. The Department of Health and Children has approved the development of an additional 110 high support-special care places. Approximately half of these have been provided. Included in this figure are the places provided at the purpose-built special care unit in Ballydowd. It is anticipated that over the next 12 months most of the rest of the places will come on stream, bringing the total number of places to 160. Significant progress has been made in meeting these targets, despite the many difficulties such as objections to planning permission, problems recruiting staff due to the current economic climate and opposition from local communities.

The commitment of the Government to tackling the problems of children in need of special care and protection is demonstrated by the launch of the Springboard initiative. This initiative has established 17 pilot projects across the country, the object of which is to prevent at-risk children and young people from engaging in various forms of anti-social behaviour by providing a proactive, interagency response to support these young people and their families. There are two key elements to this approach. The first element is the establishment of formal collaborative structures involving relevant State agencies, the voluntary sector and the local community. The second key element is the identification or establishment of a local centre which will act as a focal point for the delivery of services to young people and children. The centres will be a resource for parents and children. These projects will provide a model for helping families with multiple problems and the wider communities living in disadvantaged areas.

Another major innovation in the Bill is the establishment of the special residential services board. The board is designed to ensure the efficient, effective and co-ordinated delivery of services for children placed in special care units under Part 3 of the Bill or placed in detention schools under Part 10. Non-offending children with behavioural difficulties who are the subject of special care orders and child offenders will be kept in separate residential accommodation. However, it is acknowledged that they regularly present with similar problems, require similar care and treatment and benefit from similar types of services.

The board will have a wide remit in the co-ordination of such services, ensuring their appropriate use, liaising with the courts on the level and nature of these services and advising the Minister on any adjustments in the provision of accommodation or services for young offenders or children with behavioural difficulties. The board will also have a function in research and evaluation relating to the detention of children. I am convinced the board will enable services to be delivered in a more co-ordinated manner. It will also have a role as part of the checks and balances I mentioned in giving its views on any proposal to seek a special care order and assisting the courts in identifying suitable places in children detention schools for children found guilty of offences. I established the Special Residential Services Board on an interim basis this time last year in anticipation of bringing into operation Part 11. Its views and expertise have already influenced some of the progress of the Bill through the other House.

Part 10 establishes children detention schools which will be under the aegis of the Minister for Education and Science. These schools will provide for the detention of children aged between 12 and 15 years, inclusive, who have been found guilty of offences and in respect of whom no option other than detention is deemed 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 through the provision of appropriate educational and training programmes and suitable facilities in which to deliver these programmes.

While the Bill is founded on the principle that the imposition of a custodial sentence should be a matter of last resort, it recognises the reality that there will continue to be a need for custodial centres to accommodate the most serious cases. The Department of Education and Science is embarking on a major development programme to enable it to meet its obligations under the Bill and also to address deficiencies and weaknesses in the existing facilities. These plans, when completed, will fully equip children detention schools to meet their obligations under the Bill, including the obligation to provide for the most unruly or depraved children who, heretofore, would have been transferred to the adult prison system and also those children convicted of offences who have serious therapeutic needs.

Part 12 updates the child protection provisions of the 1908 Act, thus allowing that Act to be repealed in total. An important addition to this Part arises from my acceptance of a recommendation of the then Select Committee on Social Affairs in its 1997 report on non-fatal offences against the person in respect of children. The effect of the change is that the meaning of a child's well-being in the section on cruelty is expanded to include mental and emotional well-being, and the expression "ill-treat" will include frightening, bullying or threatening a child. The legislation will give a clear message that cruelty can mean more than physical cruelty or neglect.

This is a balanced and comprehensive Bill. It balances the needs, rights and interests of the child offender, the vulnerable child, families and communities, the victim and society generally. From the beginning of the preparation of the Bill and its predecessor there has been a high level of co-operation between officials from the three Departments concerned. The results of that co-operation are clearly seen throughout the Bill. That co-operation continues as preparation is made for the full implementation of the legislation.

I started out by emphasising the historic nature of the Bill. It provides a new way for dealing with juvenile offending without, at the same time, discarding procedures and policies that have been seen to work. There is something in it for all young offenders, regardless of age, needs or the type of offence they commit. It will also have a major impact on the lives of vulnerable children and their families and develop further the legislative framework for the development of services for these children and their families, enabling them to break out of the cycle of disadvantage and become fully included with the rest of society. Molaim an Bille don Teach.

I welcome the Minister of State, Deputy Hanafin. The Bill is comprehensive and extensive work has undoubtedly been done in the Department to get it to this stage. There are a number of concerns, however, one of which is that there is no commencement date. Other than the Minister of State establishing the Special Residential Services Board, nothing has happened to suggest the provisions of the Bill must be enacted within a specific timeframe. The Minister of State might, before the Bill is passed by the House, ensure a time is specified. As it stands, it is conceivable the Bill might not be enacted until 2010 or beyond. The House needs to be assured by the Minister of State on this.

The Bill attempts to deal in a wide-ranging manner with issues which have been current for some years. As the Minister of State said, the legislation of 1908 is out of date and has been amended on various occasions to bring it into line and make it capable of dealing with situations which arise in modern Ireland. While I know she did not mean it, I inferred from her speech that the children in question are separate from us as a society, whereas they are part of what we are and we have created them. That is the unfortunate reality, and we have a responsibility to deal with them humanely and sympathetically. They may be disruptive but it is for specific reasons and because of specific circumstances. Ireland has changed in the past 30 years. It has moved from a predominantly rural to a predominantly urban population.

A number of Departments have responsibility for this area, including the Department of the Environment and Local Government and, by extension, local authorities in the area of planning, which is a major contributory factor to the advent of these problems. Large public housing estates often do not have green areas or facilities. Many disruptive children come from such estates which are deprived areas within towns and cities. Nothing is being done by the Department or local authorities in their various county development plans to address this, despite it being fundamental to the origins of many of these problems.

Wonderful improvements have been made to facilities in schools in terms of resource and remedial teachers, and it has also been recognised that many children suffer from attention deficit disorder, although that is only a recent recognition. The disorder makes children disruptive and creates difficulties in classrooms and society in general.

The Bill deals with disruptive children in society by putting in place a legal framework to address their behaviour. Within that legal framework are facilities for family conferences and children detention centres. While I welcome these centres which are commendable, I am concerned about the need for trained personnel to service them. The level of aspiration in the Bill is commendable. It aspires to establishing secure units within health board areas and special schools under the remits of the Departments of Education and Science and Justice, Equality and Law Reform. While this is our formula for action, there is a difficulty in that we do not have sufficient trained personnel in the respective Departments to enforce the various provisions of the Bill. The Minister of State must address that problem.

There is no point in having these aspirations when we do not have the trained personnel to deal with problems which arise. We are especially short of psychologists and people who will spend time in loco parentis in the detention schools and have a facility and training to deal with these children. These people are required. Where and how does the Minister of State propose to recruit them? Are preparations being made to provide training in this area or are people being recruited? What will happen? This is a fundamental issue which needs to be addressed.

There is reference to the Garda Síochána whose members are the first people to deal with the problem on the ground. Many welfare officers and members of the Garda Síochána must be commended for the good work they do. Some of them take on a particular role in regard to individuals within particular towns. In many cases they work above and beyond the call of duty in the interests of humanity, for which they must be commended.

We are dealing here with a Bill from the Department of Justice, Equality and Law Reform, which means it is very legalistic and court orientated. I am very uneasy talking about courts and children because I do not think they fit well together. While I commend the Minister of State for raising the age of criminal responsibility from seven to 12, it should be 14. The barometer under which assessment is carried out in regard to criminal responsibility is basically the child's ability to decide the difference between right and wrong, which is a fairly basic analysis. There are many other circumstances which will force a child into a particular line of action, despite knowing the right or wrong of the situation. This is much too simplistic an assessment of a child's mental capacity vis-à-vis criminal responsibility. While I am aware the courts could be asked to deem a person not of criminal age because of their state of mind or mental incapacity, I would appreciate if the Minister of State would consider raising the age to 14.

This issue needs to be addressed because once a child of that age is referred to the court, one is automatically tarnishing, targeting or identifying the child in a very particular category. From there on, no matter what one does with a child, the fact that he or she has been before the court at such a tender age will do unlimited, if not irreversible, damage. Despite the proposed subsequent support and attention from the Department of Education and Science and the health board, there will still be an underlying problem to address which may be difficult to reverse. Therefore, I appeal to the Minister of State to reconsider that aspect of the legislation.

Family conferences, the details of which are outlined in the Bill, are a welcome development. I am pleased the Garda and health boards will be enabled to call a family conference if deemed necessary in the interests of the child. This provision, including the circumstances under which it can take place, are extremely commendable. However, there is one oversight, that is, that the onus rests within the health board or that, following a court order, the Garda can call a family conference or, indeed, an informal type of conference. Unfortunately, parents cannot call a conference, which is a deficiency in the Bill. Many of the cases that have recently gone to court have been brought by parents who found a deficiency in the system whereby they were unable to deal with a child who was out of order. These parents pursued the law to get a service for their children. The Bill does not appear to enable parents to instigate a conference. The Minister of State should consider that issue which has arisen in regard to a number of recent court cases.

On detention schools, the Minister of State said the matter would be the responsibility of the Minister for Education and Science which would put in place people with the necessary skills to ensure children are provided with proper welfare services. Will she elaborate in greater detail on the type of services that will be provided in these detention schools and whether the normal type of educational programmes that currently exist in the classroom will be provided? Will the junior certificate be conducted because the schools will facilitate 12 to 15 year olds? Given that the main reason for holding these children in detention schools is to address their particular difficulties, what additional personnel, other than educational personnel, will be in those detention centres to meet those children, talk to them individually, assess them and try to reorientate them and bring them back into society and their communities where they can have a normal life and a normal standard of living?

That will be a huge task and there will be a huge onus on these people who will get young people at a very vulnerable and impressionable age and who will have either the making or breaking of them. The people involved will be vital to the future of these children, therefore, it is important that those with the most expertise are involved in the schools. I hope the Minister of State will elaborate in greater detail on what the Department of Education and Science intends to do in regard to that specific area. Much of what has been said here appears to be aspirational and, while I commend and support it, I am concerned about the practical realities of it.

There seems to be a deficiency in the section dealing with proceedings in the children's court which appears to be more procedural than welfare orientated. This is a procedural section which does not seem to impact on the rights, needs, wishes or circumstances of the child. The entire section in Part 8 needs to have a more human face because it seems very legalistic, remote and removed from the situation of the child. I hope the Minister of State will look at that section and take a softer angle, so to speak.

On Garda Síochána involvement, it is an important aspect that it does not have to go down the route of proceedings but can call a family conference. This attempts to take care of the particular difficulties in that scenario. The Minister of State referred to involving the family. We are all aware that the best place for a child is to remain within the family and community surroundings. However, she will be aware that the reason children end up in these circumstances is lack of family support and supervision. The parents of these children are themselves the products of families which lacked family supervision and support. What we see is one generation begetting another generation, which not just increases the problem but exacerbates it from one generation to the next. There is a fundamental problem whereby particular families do not have the capacity or ability to deal with basic issues.

The Minister of State referred to sending parents on parenting courses. Given some of the parents I know, that proposal would be a total waste of time and is not a realistic option. While it is a desirable intention, it would not work for many of the people concerned. A more practical and realistic approach should be adopted.

I too welcome the Minister to the House and add my congratulations and support for this important legislation.

I look on this Bill as one of the landmark pieces of legislation over the last 30 years or more. I would equate it with, perhaps, the Companies Act, 1963, which was innovative at the time and also with the Succession Act, 1967, a major reforming Act which stuck out in our minds when studying law. I would include this Bill in that tranche of landmark legislation that is innovative, forward looking and reforming. It is a sort of renaissance as far as juvenile justice is concerned. In that regard the Bill must be welcomed.

In 1996 the previous Government introduced a Bill. Since then both that Government and Deputies O'Donoghue and Hanafin have done a lot of work in improving the initial Bill and inserting new sections which give it a new complexion. Everybody in the Department of Justice, Equality and Law Reform, particularly those involved with this Bill, deserves congratulations on the efforts on this mammoth legislation.

There are a number of aspects to the Bill. The age of criminal responsibility, which under the 1908 Act was seven years, and which possibly had a moral or religious connotation related to making First Holy Communion at the age of seven, has been raised to 12 years of age. That is an important step. It recognises that, once the Bill is enacted, a child under the age of 12 cannot be guilty of committing a crime. Some would argue, as Senator Taylor-Quinn did, that maybe it should be 14 years. It is very difficult to get a happy medium.

The Minister has looked at other jurisdictions and the role model for this type of legislation can be seen in places like Australia and New Zealand. The Minister, the Department and officials have looked at what happens there and, having taken everything into account, they have fixed on the age of 12 years. That seems sensible and should be welcomed.

I will not go through the various sections of the Bill which number 271 – it is frighteningly large – but will confine my remarks to a number of important areas. It provides for special care orders. This means that the health board must convene a family conference before applying to the court for the order. The Minister touched on this. The 1991 Child Care Act was found by the High Court to be inadequate in so far as it ruled that the health boards had no right to detain a child. In this regard the special care order is a step forward and must be welcomed.

The court has power to make a special care order if it is satisfied on a number of issues. The child's behaviour must pose a real and substantial risk to his or her health. In this regard this Bill is children friendly and is designed to create a sort of safety net for children. The court can make an order also where a child needs special care and protection which he or she is unlikely to get without such an order. This is a welcome development.

There is also the provision for the setting up of special care units. The health boards will be empowered to provide and maintain special care units or make arrangements with voluntary bodies to provide and operate them. Here we see the cross co-operation between the various Ministries involved with justice, health and education. The special care units are to be welcomed. In 1977 there were 17 places available. There are now approximately 85 or 86 and it is hoped that by the end of next year there will be 160 safe places of detention. This is very important. Comments made by a number of High Court judges criticised the Government and the Department on the inadequacy and deficit in this area. That is now being addressed. I welcome the Minister's statement that funding is being provided for such care units.

The setting up of the family welfare conferences is a very welcome new approach. I laud the Minister and her senior counterpart, the Minister for Justisce, Equality and Law Reform, Deputy O'Donoghue, on this approach. A family welfare conference is a mechanism for early intervention in respect of children who are at risk or problematic children. This innovation is a breath of fresh air. Here if possible we get the parents involved, even if separated. They sit with the child, possibly with the assistance of a probation officer, to see how they can help this child. By child we mean someone, as defined in the Act, between the ages of 12 and 18 years. The family conference will examine the problem to see what can be done to sort it out. The health board will appoint a co-ordinator who will generally share in such a conference.

The family welfare conference should not be confused with the Garda conference. Perhaps the Minister will be able to elaborate on this but my understanding is that the Garda conference will only come into force when something a child has done is brought to the attention of a junior liaison officer or a garda. The child may have committed a crime, be about to commit a crime or be under observation by the Garda. Both types of conference are critically important.

An interesting aspect is that conference decisions must be unanimous. Perhaps the Minister will indicate in her reply what the situation is in a case where there may be seven people in the room and six to one in favour of a particular approach. Would that mean the conference had failed or would have to be reconvened? I may have misunderstood this but it does specify a unanimous decision. In the case of separated par ents the husband and wife might decide to go different ways on an issue. I would like some clarification on that. The child must attend these conferences and that too is important. This involves a direct approach by those who have or should have responsibility for the care and upbringing of the child.

Another interesting aspect of the Bill is the welcome introduction of a diversion programme where children have committed an offence. This is another innovation as far as juvenile justice is concerned. Under the diversion programme the child will not be prosecuted for the offence which led to admission to the programme. In other words, if a child has committed or is about to commit a crime or has done something stupid at a tender age between 12 and 18 years, this system makes every effort possible to keep the child out of court. It diverts the child from our frightening and sometimes archaic adult system of justice.

The diversion programme will obviously involve junior liaison officers and community gardaí. They play an important role. Having worked with the legal system for over 20 years, my experience is that the Garda must be lauded for their efforts on the ground in helping out in difficult situations. They take a practical approach to the delicate matter of children committing crimes and this Bill will strengthen their hand.

There was a time when a child who stole a penny bar was technically deemed to have committed larceny and it was felt that one might as well be hung for a sheep as for a lamb, but this Bill shows we have moved from such an unfair brand of justice. The Bill provides for a formal or informal caution to be administered in a Garda station or in the child's home in the presence of the child's parents. The child and his or her parents will be told that the child's actions were not appropriate and that future behaviour will be observed. This form of justice should work very well.

The supervision of children is also important. Senator Quinn mentioned the notion of rehabilitation through giving advice to parents, which is a good idea. While certain parents may be a lost cause because of alcohol or drug abuse, there are important things to be learnt by others. The Bill allows for a conference where the child apologises to the victim of his or her crime. This is important and although it will not be effective in certain cases, it might work wonders. Many children who are made to apologise contritely to the victim of their crime will not re-offend as their eyes will have been opened to the consequences of their actions.

I do not fully understand the idea of a child between 12 and 18 making financial reparations to victims and perhaps the Minister of State will clarify the matter for me. Most children of that age do not have a job and therefore have no income unless they receive pocket money from their parents. In many instances such children will come from socially deprived areas and neither they nor their parents will have money. I would like this feature of the Bill to be clarified.

Participation by young people in appropriate sporting or recreational activity, training or education is of huge importance. In many cases, children step out of line because they are not involved in sport or have opted out of school. It is positive for a young person to be involved in athletics, football, swimming, basketball or any other sport and this Bill enables them to do so. Young people will be encouraged to get involved with a sports club or go back to school, which is a fresh and appropriate approach. This is important for those of us who are parents, as many of us intentionally or unintentionally neglect our children. The Bill makes provision for a curfew system which will work wonders, whereby certain children must be at home at specified times and stay away from specified places or people. A juvenile liaison officer or a probation officer will speak to the parents of a child who is going to unsuitable places or mixing with inappropriate people and direct them to ensure such behaviour does not continue. It is an important aspect of the Bill.

The Children Court has been successful and huge strides have been made. It is important to recognise that this Bill broadens the remit of the court and makes it more user-friendly and child-friendly. This legislation means that if a court remands in custody a child under the age of 16, he or she must be sent to a junior remand centre. Those between 16 and 18 may be remanded to an institution specified by the court. Section 89(5) allows the Minister for Justice, Equality and Law Reform, with the consent of the Minister for Education and Science, to "designate as a junior remand centre any place, including part of a children detention school, which in his or her opinion is suitable for the custody of children". If the remand centre is part of a children detention school, those on remand must be kept apart from those in detention. The approach to this important issue was more eloquently and delicately elaborated on by the Minister of State earlier. Attendance at the Children Court by a parent or guardian of the child is compulsory, which I welcome. If a young person commits or attempts to commit a crime, parents should be involved in all stages of the process of justice.

The kernel of this user-friendly Bill is that it ensures that every other penalty will be contemplated before prison is considered. The Bill empowers the court to reprimand a child or make a number of different orders, including a conditional discharge order, an order that a child pay a fine or costs, an order that a parent or guardian be bound to the peace, an order of compensation, a parental supervision order, an order that compensation be paid by a parent or guardian on behalf of a child and an order imposing a community sanction.

As the Minister of State said, the Bill does everything possible to protect vulnerable children and to give them a fair crack of the whip. Instead of taking the easy option of locking them up and throwing away the key, society will now take a sensitive and humane approach. I welcome and commend the Bill to the House and wish it a safe passage. As a final point, I ask the Minister of State to respond in her reply to Senator Taylor-Quinn's request that this Bill not be allowed to remain on the shelf for very long. I hope it will be enacted within the next few weeks rather than the next few years.

I welcome the Minister of State and her Bill to the House. It is an enormous improvement on existing legislation and it must have taken a great deal of work to get it to its current state. It shows dramatic changes from the Bill originally envisaged and it has been improved. I applaud the Minister of State for listening to the concerned groups who contacted her, as they had the best interests of children at heart. The progress of this Bill shows that if reasonable and properly considered representations are made with the right motives, legislation can be changed. It is helpful for me to be able to make that point to people.

Looking at this Bill, I think of the appalling section of the Mental Health Bill, 1999, dealing with children, which went through the House yesterday having passed Committee Stage last week. The Minister of State, Deputy Moffatt, deserved his luck yesterday when my aeroplane back from a meeting in Brussels was delayed, meaning that last Wednesday was the only day of my ire he had to tolerate.

I presume the special care orders that can be made to safeguard the health of a child can be made regarding both mental and physical health. It might be wiser if this Bill, rather than the Mental Health Bill, were used in relation to the care of mentally ill children. I take particular exception to the lack of specific criteria in the latter Bill regarding the approved centres to which children can be sent. I have received the most appalling representations about children involuntarily committed to adult mental institutions and sexually abused in them. I was asked to try to ensure children could not in future be put in adult mental institutions, where they could potentially be abused. I was not asked to do anything else and I am appalled that amendment was not made to the legislation.

The Bill was passed using the lowest common denominator in terms of facilities. It did not even provide that a registered psychiatric nurse could detain a patient for another 24 hours. That demonstrates what a woeful state the mental health services are in. It would be better if children suffering from mental illness were detained under a special care order. Nothing would be worse that invoking section 25 of the Mental Health Bill, 1999, to commit them to hospital.

All those incarcerated in mental hospitals as children have even been denied access to the Laffoy commission. I cannot understand the reason the Government has decided to do this. It is not as if the victims wanted compensation. They wanted to explain what had happened to them and ask why it will be allowed happen again to other children. One victim named a paedophile, who faced a large number of charges, with whom she shared a closed psychiatric ward when she was 14 years of age. She was not sexually abused by him but I cannot say that others were not.

I am slightly concerned about section 161 which deals with the segregation of those detained on criminal charges and others. Only those detained on criminal charges can be detained in day care and other juvenile centres except under this section, under which the Minister may enter into arrangements with persons for the provision by those persons on behalf of the Minister of a place providing facilities for the detention of children found guilty of offences. We have run into problems in this area where the Minister has been in a position to buy health care from private institutions, although I understand the reason that may happen.

However, section 161(5) states, "Any such place need not cater exclusively for children found guilty of offences". This is at variance with other sections which provide that children committed for criminal offences would only be detained in certain detention centres while those committed for other reasons would not. In the past detention centres held children who were orphaned or had been involved in petty crime or who it was felt should be placed in such institutions. I am concerned that such a mixum-gatherum of children could arise under this section. Will the Minister provide any safeguards? This is a Dáil Bill, which has been introduced towards the end of the session, and it is most unlikely that I will be able to table amendments on this. The section is odd and I would like the Minister of State to comment on it.

I am also a little unclear about the position of children with intellectual disabilities who experience challenging behaviour. This is important in regard to children with intellectual disabilities who are older or suffer mental illness and are quite violent within their homes. Nowadays fathers, in particular, are driven out of their homes by young violent adolescents because there are very few places to put them and no safe places for fathers. This has not been addressed in the legislation.

I share Senator O'Donovan's concern that there is a difference between the various groupings for the family welfare conferences. I had been advised that they were called family group conferences for which there is a specific definition. The family is defined as "including the children, parents, extended family, significant friends and neighbours". Why is it not called a family group conference? I have taken part in such conferences and the Minister of State's recommendations in this regard are good and practical. I was particularly taken by the provision which allows for people to be thrown out if it was felt they were not being helpful. What is the position of the non-marital father at such conferences? That will be important, for example, in disputes regarding guardianship. I am president of Cherish and, while we want both parents to be involved in the upbringing of the child, there are scenarios where the child, for example, is the product of a rape. What rights does the father have in this regard?

I am concerned about the lack of a comprehensive approach to dealing with the child following discharge. Community follow-up is extremely important, no matter from where the child is being discharged. I understand the reason the probation and welfare service would become involved with children who have committed a crime but it is not clear what the position is in regard to children who are the subject of special care orders. Unfortunately, if a child has been released from a special care unit or a detention centre, he or she can fall between two stools while the situation is worse for adults. However, a great effort has been made to divert children from detention centres. It would be unfortunate if a child left a place of detention or special care unit and ran into the same problems again.

I commend the establishment of the juvenile liaison programme on a statutory basis. It has been an incredible success and it is worthwhile to put it on a statutory footing. I also commend the section dealing with foster care. It was a good move to raise the legal age to 12 years in this regard. However, it is frightening to witness the reaction in England to the potential release of the killers of James Bulger. It was an appalling crime but the two boys were ten at the time and neither was sought by anyone in their families until after midnight. The Minister is trying to create a safety net for such children but it is difficult. Many in Great Britain and almost 80% of Liverpudlians believe the killers should not be released and that they got off too lightly.

The sections dealing with the courts are good. Unlike Senator Taylor-Quinn, I believe the courts have been very good in regard to children. I commend Judge Paul Carney who recently said he would try to give cases involving children who have been sexually abused and so on special priority over remand cases.

I tried to point out during the debate on the Mental Health Bill, 1999, that mental health orders for children should be reviewed every six months rather than every year because a year in a child's life is totally different from a year in the life of an adult. However, I got nowhere. That could easily have been changed because the Bill had to be sent back to the Dáil. I was cross about that.

There is confusion about what happens when the child is taken into custody by a garda. In some cases gardaí will not be able to get the parents to come to the station. Under sections 58 and 63 the child can nominate the adult he or she wants involved in the case, but he or she cannot do so under section 61 which states that the father will decide what adult will go to the interview. I cannot understand the reason that was decided given that the child has been well dealt with up to this. If the parents will not come, an adult he or she wants to come is allowed under section 58, under which the child is entitled to have an adult relative or other adult reasonably named by him or her given the information. However, under section 61, in the absence of the parent or guardian, "another adult (not being a member of the Garda Síochána) nominated by the member in charge of the station", shall be the person who shall be there during the interview of the child. I cannot work that out. Under section 63 an adult relative "includes any adult reasonably named by the child pursuant to section 58(2)(a)”. That seems to be an anomaly.

It is a pity section 26 of the Child Care Act, 1991, was not amended. Under this section the child can have either a legal representative or a guardian, but cannot have both. I am sure representations were made to the Minister about this, but there must have been a good reason not to amend it.

I hope the Minister for Finance puts his hand into his long pocket and gives the Minister of State all the money she needs for this Bill. I am glad the probation and welfare service seems to have found a way to get more staff. I warmly applaud this and those who managed to find a way around the difficulties of getting more people appointed. It has been well worthwhile.

This is a good Bill because it puts as much effort as possible into prevention. That is what we want to do. We do not want children before the courts and in detention centres. We want to do everything we can to try to prevent this. I like the provision relating to victim support. It is worthwhile to get young people to face up to those to whom they have caused damage. I like the idea of making plans for what a person will do and getting the child to sign up to them. These are the type of things children understand. We will fail in a certain number of cases, but we will succeed in a number as well. I hope the Bill will go a long way towards improving the situation for children who are neglected.

It is dreadful that we must include sections on begging and putting children into prostitution. A court case in Waterford the other day highlighted the fact that a child of 13 years was sold into prostitution. I was disappointed that no one from the Department of Justice, Equality and Law Reform went to the recent European meeting on human trafficking. There is also human trafficking of children. I am aware that it was not the Minister of State's place to go, but it is a pity the Department of Justice, Equality and Law Reform, which talks so much about refugees and displaced persons, could not have got someone to take part in this important discussion. Another area is the selling of children into prostitution which I am sure will be covered by this Bill. By the time anyone gets to this end of the line, there will be someone here to receive them. I am sure something will be done in that regard.

I commend the Bill. I would like the Minister of State to amend section 26 of the Child Care Act, 1991, to include both a legal representative and a guardian. Section 63 of this Bill should also be amended unless there is a good reason the child cannot choose the person to be present for the interview. I was fairly calm about the rest of the Bill on which I congratulate the Minister of State.

I welcome this important legislation and want to comment briefly on a few of its more important sections. This Bill will totally repeal the Children Act, 1908, with modern comprehensive legislation which will cover three main areas of law. It provides a framework within which the juvenile justice system can continue to develop. It re-enacts and updates provisions in the 1908 Act protecting children against abuse by persons who have custody, charge or care of them. It also provides for a family welfare conference and contains other provisions for dealing with out-of-control, non-offending children. It is also notable and welcome that some of the main sections of the Bill come under the remit of the Minister for Health and Children, such as the family welfare conference, children in need of special care and treatment and Part 11 which deals with the Special Residential Services Board. I also recognise there are overlaps between the Department of Justice, Equality and Law Reform and the Department of Health and Children, which is testimony to the integrated nature of the Bill. The court may write to the health boards to convene a family welfare conference for a child before it on a criminal charge if it is of the view that the child's problem relates to the need for care and protection, for example, in section 78.

I want to say a few words about the reason for the Bill. Young offenders, by reason of their age and level of maturity, deserve to be dealt with differently or more humanely than adult offenders. The juvenile justice system developed under the 1908 Act was incapable of further development unless it was underpinned by new legislation, particularly restorative justice measures. However, the modern thinking reflected in the Bill means there should be a noticeable decrease in juvenile offending over time. The objectives of the Bill are to divert first time and non-serious child offenders from inclusion in the criminal justice system under the statutory diversion programme, which will include restorative justice measures; to provide the courts with the means by which they do not necessarily have to proceed to a finding which would usually be of guilt and referral to the health boards or the probation and welfare service, which is an example of restorative justice, for the convening of a family welfare conference in more serious or persistent cases.

There are a couple of examples of restorative justice in the Bill. The first example is in Part 4, which deals with the Garda diversion programme. Incorporated in the programme is a conference which may or may not be chaired by a garda. It will provide a forum for the child, his or her parents, other family members, other interested persons and, where appropriate, the victim to discuss the child's offending and the reasons for it. It will confront the child with the consequences of his or her actions. It will establish the basis for a lifestyle which does not include anti-social behaviour and allow the child to apologise and possibly make reparation to the victim. It is a welcome and innovative development to bring the child through that course of action rather than through the courts.

There is also a unique provision called restorative cautioning in section 26 under which the victim may be present for the administration of a formal caution to the child. This allows for a less formal type of conference which will suit cases where the more structured conference might not be appropriate or justifiable. The courts will also be given the power to direct the probation and welfare service to convene family conferences. These will be similar to the Garda conferences but will be appropriate in cases where the Garda considers it has no option but to prosecute. For example, where the non-enforceable aspect of the Garda conference might have led to compliance difficulties, the benefit and advantages of the court directed conference are as follows: there is an opportunity for the case against a child to be finalised without proceeding to a finding and all that would entail; the child and his or her family will have a say in finding a solution which will not have been imposed by the courts, which is important and the outcome of the conference will be supervised by the court and enforceable. The outcome will not be easy in that the recommendations of a family conference may include the making of an apology to the victim, the making of reparation, a restriction on the child's movements and participation by him or her in supervised activities.

The age of criminal responsibility was mentioned by many speakers. I welcome the fact that arrangements are being made in this legislation to raise the age to 12 years. Some Members commented that it should be raised to 14 years, on which there will be disagreement. I agree with Senators Henry and O'Donovan that 12 years is an appropriate age.

In regard to the reasons the Government arrived at this age, the former Dáil Select Committee on Crime, after a thorough examination of the issues involved, recommended an age of 12 years in its first report. The UN Committee on the Rights of the Child criticised our low age of criminal responsibility. That was another factor which led the Government to decide on 12 years.

It is important to note also that the number of children under 12 years of age who come to the notice of the Garda is relatively small. The 1998 crime report shows that the number of children under 12 years of age reported to the Garda national juvenile office on suspicion of committing offences was approximately 1,000. By no means will all of these children require alternative intervention. Although raising the age to 12 years will mean that children under that age who commit offences will no longer qualify for admission to the Garda diversion programme, they will still have contact with community gardaí, which will be on a more integrated and co-operative basis with other agencies such as the health boards. It would not be possible to raise the age in stages by means of regulations, as proposed in the 1996 Bill. This is because of the Supreme Court decision under which it is likely that a power to raise the age in regulations would, if challenged, be found unconstitutional. Regardless of the specific arguments, the raising of the age of criminal responsibility to 12 years is the right decision.

The detention provisions are largely similar to those in the 1996 Act, although they have been substantially redrafted. Some important changes have been made. First, because of the fear of a revolving door system developing in the education of children in detention schools, it is made clear that the court cannot order the detention of a child under 16 years of age unless a place in such a school is available. The alternatives for the court in such circumstances are to defer making the order until a place is available or to impose a community sanction as an alternative. The latter provision is new and was not contained in the 1996 Bill. That is important because orders were made to have children placed in care, but suitable places were not available at the time those orders were handed down. The second change is the introduction of a detention and supervision order for 16 and 17 year olds. This would allow the court to split the sentence equally between detention and supervision in the community, thus allowing for better aftercare and reintegration.

The protection provisions are essentially an updating of the 1908 Act provisions. They have not changed radically from the 1996 Bill but there are two significant differences. First, the scope of the cruelty offence has been broadened to include a child's mental or emotional health or well-being. The 1996 Bill referred only to physical health or well-being. Also, the meaning of "ill-treatment", one of the ingredients of cruelty, is being expanded to include frightening, bullying or threatening a child. These changes give effect to the recommendations of the then Dáil Select Committee on Social Affairs in section 246 of its 1997 report on non-fatal offences against the person in respect of children.

Second, the Criminal Law (Sexual Offences) Act, 1993, is being amended to, in effect, raise the penalty for soliciting a child for the purposes of prostitution. This is essentially a holding operation pending a more considered examination of the issue of child prostitution in the context of the analysis of the discussion paper on the law on sexual offences. They are two welcome changes in the area of protection.

I welcome the legislation which is vitally important. As has been said by previous speakers, it is about the protection of our children, being innovative and providing alternatives for the criminal courts system. That is to be welcomed. Some fantastic ideas are being brought forward in legislation. In many cases they will work effectively. In others, we may not be so fortunate but the sooner this legislation is on our Statute Book, the better for our children. I commend the Bill to the House.

I welcome the general thrust of the Bill. It is a major move forward and reflects a huge amount of work by the Department. There are certain aspects of it with which I am not completely satisfied but the officials dealing with it have listened and tried to do their best to move forward this huge tome of legislation.

On my first ever visit to this Chamber, some years before I was elected, Fine Gael was in government and the Fine Gael Whip was a family connection, Senator Luke Belton. I was visiting the House because a criminal justice Bill was going through at the time. Many of us were trying to get the age of criminal responsibility raised above seven years, with which we had no success. There was a great deal of Special Branch interest in us because we spoke on public platforms etc. on this issue. I was late arriving into the House, only to meet the Fine Gael Whip running down the corridor. He did not have time to talk to me because, he said, O'Leary was voting against the whip. He was referring to the then Senator O'Leary of Fine Gael who is now a judge in the Circuit Court. That is an issue in which many of us have been involved for many years.

There are two reasons the issues in this legislation have become appropriate and interesting in the course of this week. This day week in the House, Senator Costello raised the issue of the 15 and 16 year old Irish children detained in a German prison in circumstances which did not reflect in any way the United Nations rights of the child obligations. It concerns many of us that this could happen to a child in the European Union.

Before saying anything negative about issues in the Bill, it is worth recognising that it is positive and progressive in comparison with many of the events we have seen in the European Union. It is also topical and appropriate that we would be discussing the Bill in a week when the two convicted murderers of Jamie Bulger are due before the probation boards in the United Kingdom for the first time. A heated and emotional debate is taking place in the United Kingdom on the appropriateness or the morality of the possible release of these young men. It is appropriate, therefore, that we are discussing the issue here in the cold light of day and dealing with the facts in the legislation.

The Minister of State will be aware that my own organisation, the INTO, made a number of representations to the Minister at various times in the past 18 months. We have taken on board the views expressed to us by INTO members, teachers in particular, on some of the detention centres – Oberstown, Finglas, Clonmel and others. We brought those views to the Department and I am glad to see that some of them have been included in the Bill. There are a number of issues outstanding to which I will also come.

The preventative focus in the Bill is, philosophically, its most crucial aspect in terms of what we should welcome. In trying to get the balance right, it is vitally important that the Bill has both a preventative and a community-based focus. They are the two most important elements if it is to have a long-term positive impact. Putting into legislation a strategy to divert a child away from detention and the prison system is vitally important and strongly reflects the views of those in the community, including teachers and others, concerned for the welfare of the child, the community and the common good. It is important that that would be welcomed. It is also important that we would carry it through in providing an alternative to detention and prison for adults also. There is a positive connection in the Bill to the probation system and the juvenile liaison service. Those are important aspects which should be welcomed.

Much has been written recently about the role of parents. I have not read every line of the Bill but some sections have a significant focus on the role of the parent. As legislators we need to be clear on the philosophical basis on which we determine the role of parents. In my discussions in a teaching medium and in advising teachers and the education partners, I have often come across parents who are in fear of their children. I have seen parents and teachers who, with the best will in the world, cannot control their children. This is even the case at primary level and it is important that people recognise this fact.

We must recognise that teachers and care staff in detention centres and special detention schools have a difficult job during which they are regularly assaulted, physically threatened and in fear. This is part and parcel of the work of the teaching and care staff in places of detention.

In recognising the problems faced by parents with difficult children and the pressure they are put under by such children, it would be unfair to suggest that parents should be responsible for their children's actions. Parents should be accountable, but not necessarily responsible. Parents are responsible for parenting and can be held responsible if they fall down in that role. Parents can also be made accountable for their children's whereabouts and so on, inasmuch as they are able and it is practicable to do so. However, it would be wrong to hold them responsible in all cases for their children's actions.

The parents of children who are delinquent, who are in breach of the law or who have caused problems should, in the first instance, be held accountable, but not necessarily responsible. Section 54 recognises that, whereas a child under the age of 12 or 14, as appropriate, might find himself or herself responsible for an act for which, were it not for his or her age, he or she would be found guilty of an offence, anyone who aids or abets a child in such an act can be found guilty. This is an important provision and is the best manner in which to approach this issue. If it transpires that a parent guided a child into a life of crime, it is right that the parent be held responsible. However, the provision must be confined to such restrictive circumstances. We should recognise that the Bill finds an acceptable balance in this regard.

There may have been a recent change to the legislation which I have not seen, but can we not recognise that there is a difference between a child of 12 years of age and an 18 year old who is almost an adult? As far as I can see the legislation does not distinguish between the needs of a 12 year old – a young teenager – and an older teenager. I stand to be corrected on this point and I will listen to the Minister of State's response. However, this is a flaw in the Bill as there is a significant difference between the two age groups, even in terms of their physical demands. Children of 12, 13 or 14 years of age might have different needs from persons of 17 or 18 years. The Minister of State might consider changes in this regard. This issue is reflected in one section of the Bill which deals with places of detention and stipulates that the place should be appropriate for a child in the case of someone under the age of, I think, 14 years. However, that is not enough and the Bill is flawed in this respect.

In making representations to the Minister when the Bill was published, we drew attention to the fact that it did not include provision for a minimum period of detention. We made strong representations to the Minister and the Department to the effect that, for many practical reasons, a minimum period of three months should be stipulated. I am glad this point has been taken on board, for which I thank the Minister.

There have been many recent newspaper reports of gardaí arriving at detention centres to be told by the director that there are no places available and that the child cannot be admitted. It is important that there is a sustainable regime in detention centres whereby there are no disruptions late at night or problems of over-crowding, discipline or supervision, as a result of which safety is put at risk. We made strong representations that a director should be able to refuse to accept a child if there is no available place.

As far as I know, the Bill has been changed since first published to the effect that a judge must ensure that a place is available for a child before he or she can issue an order. This ensures that the judge takes responsibility. However, we would be happier if the court order was delivered to the Department of Justice, Equality and Law Reform, or an appropriate section of the Department, which would be responsible for finding an appropriate place for the child. That would be a preferable, more effective and more efficient manner of doing business.

I would like to raise other issues. Whatever reservations I have about the Bill, I particularly welcome the increase in the age of criminal responsibility. I have sought such a change for 25 years and I am glad it has finally been achieved. The age should be 14 years without distinction, qualification or modification. Unfortunately, it has been increased to 14 years with some modifications. However, this is a step forward. I welcome the legislation and I look forward to further improvements in the coming years. I support the Bill.

I welcome the Minister of State and one of the most important Bills to come before the Oireachtas in recent years. The Bill is important for future generations of children. In the past, the justice system looked upon children in the same way as adults. For the first time this Bill treats children as children, not as miniature adults.

The Bill's approach relies more on the carrot than the stick with the option that, if the carrot is unsuccessful, one can fall back on the stick. Children respond accordingly to a positive, rather than a negative, approach from adults. The Bill is progressive and forward-thinking in terms of future generations.

We must accept that many families are dysfunctional and experience a lack of parental involvement and control. In the past, the extended family acted almost like a guardian angel in respect of children. Unfortunately that is no longer the case and family supports and structures are no longer available. Regardless of some of the Bill's implications, such supports can be provided if the Bill is implemented fully and the resources necessary for that full implementation are provided.

Senator O'Toole raised the issue of parents being made responsible for their children, but I take a slightly different view. The Bill places greater responsibility on parents which is not necessarily a bad thing. It gives parents more responsibility and involves them in the processes envisaged by the Bill. The legislation also empowers them by making them aware of what is happening from the initial stages, whether by way of a special care order or through family welfare conferences. If parents feel they have lost control of their children and cannot deal with them, the provisions of the Bill will assist them in many ways by giving them more power.

Recently, I read in one of the national newspapers about a mother who had approached the Garda Síochána to have her child taken into care. She felt the child was in danger of being approached by vigilantes because of his anti-social behaviour. It is a sad reflection on society that parents should feel unable to rear their children. The Bill is extremely important in that respect. While it places a responsibility on parents, it places an even greater responsibility on health boards. Over the years, there has been much criticism of the way in which health boards have dealt with children, including the social worker aspect. Complaints have often been made about delays in the administration process, which spans so many different levels, that children can fall between the responsibilities of two Departments or community services. Now that there is a proper, co-ordinated approach there is a great responsibility on health boards, particularly concerning special care orders.

Implementation of the Bill will be a fundamental issue. Unless resources and properly trained personnel are put in place, not only in health boards but also within the Garda Síochána and the probation and welfare service, we will fail in this regard. From my reading of it, the Bill represents good legislation but the most difficult aspect will be to implement its provisions. We are aware of the difficulties in recruiting special staff to work with problem children in special units but when the structures envisaged in the Bill are put in place we will have a greater problem on our hands in getting properly qualified staff and keeping them. The focus must be on having a co-ordinated approach to the issue.

In discussing children at risk, I am not only talking about children who are at risk of offending but also about the protection and care of children in general. We must put in place structures, including social workers and gardaí, that can deal specifically with children. Such people must be available 24 hours a day, seven days a week. Unfortunately, if a family problem arises after 5 p.m., children are often placed in an acute hospital for their protection and specialised personnel are not in place to ensure that such children are properly cared for. When children have to be removed from the family home it is not good enough to place them in an acute hospital which does not have the required facilities.

Social workers, child psychologists and gardaí who are specially trained to deal with children should be in place around the clock because such problems do not just arise during office hours. On many occasions, the Minister of State, Deputy Hanafin, has stated that the best place for a child is in his or her own home but sometimes it is safer for a child to be out of the family home, if even for a short period. I have experience of cases where children have been abandoned in hospitals, particularly in Dublin, and their parents returned to collect them at a later date.

While objections have been raised regarding the proposed special units, if they are properly regulated and manned, they will be the best places for such children. I have no doubt that such units will ensure that children are rehabilitated so they may take their place in society as adults.

I welcome the establishment of the diversion programme for children between the ages of 12 and 18 who have committed offences. Surveys in other countries have shown that when offenders are faced with their victims it often acts as a deterrent to commit future crimes. The involvement of victims, but most importantly parents and professionals, can have a positive effect on young offenders, including children. The adoption of such a positive attitude can provoke a domino effect, ensuring that children respond in a more positive fashion than they might otherwise do.

I agree with the increase, from seven to 12 years, in the age limit of criminal responsibility and up to 14 years unless the prosecution can show that an individual committed a crime. We must be aware, however, that in some cases a child of 12 or 13 can be extremely streetwise, whereas a young person of 17 or 18 may not be. The diversion programme will be in place for children who admit responsibility for their actions but what happens in cases where such children do not admit responsibility? I could cite one example where a 14 year old allegedly sexually abused a very young child. After being questioned by the Garda Síochána and other professionals, the 14 year old continued to deny having committed any abuse. However, three year olds do not tell lies and in many cases do not even understand what has happened to them, although they can explain it in their own language. In a case like that, it is possible that nothing can be done for the 14 year old if he or she does not admit responsibility. I am fearful of what will happen to this child if it continually denies the act. What case is open to the victim's family to ensure that the child does not suffer repercussions in 20 years' time as a result of what has happened?

If an individual does not accept responsibility, even if he or she is only 14 years of age, what will happen in two or three years' time? If at the age of 14 the person is abusing a child, God only knows what he or she will do at 16 or 17. There is something evil with a small minority of children in society that is causing them to carry out such acts. Despite the fact that they deny everything, I am afraid that we will experience even greater problems from them later.

Juvenile liaison officers have a major role to play in implementing the provisions of the Bill. When allegations have been made, a liaison officer should be appointed for a short period, even if the accused person denies perpetrating the act. If at all possible, such people should be rehabilitated.

It has been revealed that some young offenders are subsequently diagnosed as having attention deficit-hyperactivity disorder. It is only when they come to the attention of the criminal justice system that this is identified. While the Minister for Education and Science is involved in this, it is even more an issue for the Minister for Health and Children to put in place more educational and clinical psychologists for children to ensure we identify and diagnose them at an earlier age. As has been proved, early intervention and treatment is the key to success, particularly for attention deficit-hyperactivity disorder.

I welcome the Bill which will affect the lives of thousands of children in coming years. The detail gone into and the wide-ranging, inclusive measures in relation to the professionals and the family are for the betterment of children.

On a point of order, I wish to correct something I said earlier. I apologise to the Minister for Health and Children, Deputy Martin, for saying he had not accepted my amendment regarding the detention of children under the Mental Health Bill. I said they could still be kept in a mental hospital or institution for one year but the Minister accepted my amendment and they can now only be held for six months without being reviewed. I apologise unreservedly to him for the mistake I made.

I agree with Senator Henry's remarks on the detention of children in any mental institution. It is preferable that they are taken out of such institutions and that there is a special care order to deal with them.

I welcome the Minister of State to the House and give a guarded welcome to the legislation before us. It is about time we had a Children Bill. The old legislation dates from 1908 and pertains to a different era and jurisdiction. Believe it or not, it was passed by a Liberal Party Government which was updating and liberalising legislation. It was widely seen as a major reform, and so it was because it made provision for children to be detained in special schools as opposed to prisons. The special schools were reformatories and industrial schools. Unfortunately, as we forgot to properly monitor and manage them, we now have the disgrace of so much abuse having taken place. The reforming measures were put forward and rather than dump young children in prisons they were put into special places of care, education and training, but while we look back on the Act of 1908 as something terrible, it was not. It was very progressive for the time. The unfortunate decision was that people had to spend four years inside and if there was an abusive system in place, there was very little hope for a youngster to come out at the other end of it in any fit condition.

It was also unfortunate that the age of criminal responsibility was put at seven years, deemed to be the age of reason, which meant young children of very tender years could end up in institutional care. Due to the uncaring nature of the powers that be, young children between the ages of seven and 15 years spent long periods of time in these institutions. They could be locked away for long periods because of minor misdemeanours and non-offences such as truancy. It is unfortunate that we did not properly develop the system laid out in the 1908 Act and were negligent in implementing its provisions.

Some of our European colleagues have not got around to reforming their systems. Last Thursday, I raised in this House the matter of two young boys – one aged 15 years and the other 16 – who have been detained in a German prison since 1 June. They had no contact with their families until yesterday. They have been held incommunicado by the German authorities. Action by a lawyer to get them some communication was turned down by a judge and when the parents spoke to the boys yesterday it transpired they were being held in the same cell as a murderer and a drug pusher. That is the state of affairs which obtains in one of our peer EU countries. Furthermore, one of the boys attends a special school here, which has not been taken into consideration. The German authorities are clearly in gross breach of the United Nations Convention on the Rights of the Child. The Department of Foreign Affairs has dragged its feet and when the children's parents sought for the embassy to make a visit it gave the excuse that it is understaffed. On Monday the visitor from the embassy negotiated a telephone call for the parents, to be made on Tuesday. That has been the extent of direct communication with the boys. They do not speak the language.

It is awful that such a practice is allowed to continue. We may listen every now and again to Mr. Justice Kelly decrying the facilities provided here but, bad as they are, we are certainly light years ahead of some of our European Union partners. It is time to resolve this matter and the onus to examine it is on the Department of Justice, Equality and Law Reform, particularly the brief on children, not just the Department of Foreign Affairs. There should have been some statement from the Government on this matter but there has not been one word.

It has taken a long time to bring this Bill before the House. The original Bill was produced in 1996. This Bill is dated 1999 and now, in 2001, we at last have it before the Houses of the Oireachtas. Now it is here, many of my colleagues on both sides want to have it fully implemented as quickly as possible and the resources made available to allow that to happen. A great deal of resources are required as is always the case when it is a question of legislation on children. Health boards have to be properly resourced for the new responsibilities they will have, as do the Children's Court, the Garda and the bane of my life, the probation and welfare service. The service is totally under-resourced given the work it will be doing but it is still to have a major role in the implementation of this legislation.

There will have to be a substantial commitment in implementing this legislation. The Bill comes from the Department of Justice, Equality and Law Reform and is about justice, accountability and offending but what must be remembered is the overall context in which a child becomes unruly and needs care, the wider context of the quality of life the child has while growing up, the environment in which he or she grows up, the housing in which he or she is reared, the education and back-up services provided to ensure he or she does not fall through the net and leave school. The resources are not available for many children in areas of deprivation, initially at child care level, to give them the start available to children in different circumstances.

The education system does not have the remedial back-up and that is a major cause of our problems. That is where much of the money will have to go. The Minister of State said this was a Bill of juvenile justice, which it is, but one cannot have juvenile justice without juvenile care, protection, support or rights. Those are the primary matters that have to be put in place. As we go through the Bill I note the attempt to bring those in at every stage, which I welcome.

At the same time, my conclusion is the same as that reached by Father Flanagan when he set up Boys Town – there is no such thing as a bad boy. A boy or girl only becomes bad according to the context in which they are reared. If they are reared in a proper, humane family and community environment, nobody will be bad. In that context I am still looking for the set of principles the Minister of State says is in this Bill. The Minister of State said the Bill was underpinned by a set of principles. He stated:

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 ... Thus, Part 4, which places the Garda diversion programme on a statutory basis, is supported by a new principle that obliges the Garda to consider for admission to the programme children who have accepted responsibility for their criminal behaviour.

That is not a principle, it is a procedure. Where is the principle? The Minister of State went on to talk about Part 9. He said:

Part 9 establishes the rights of children before the courts charged with criminal offences. These include an important new right which was not in the 1996 Bill, that is, the principle that criminal proceedings will not be used solely to provide any assistance or services needed to care for or protect a child.

What principle is that? That has always been the principle, that criminal proceedings will not be used solely for criminal purposes. No principles are enunciated in relation to the Bill and I would like to see it put in that context, the rights of the child, the supportive environment for the child, the parental supports and the community context. None of that is there. This is not a Bill placed in a fundamental principled context. What are being presented as principles are merely procedures. All that is being presented here are assertions that those are principles and they are not.

The age of criminal responsibility has now gone from seven to 12 years, which is welcome, but why have a cut-off point at 12?

It is not. It is 14 now.

Within certain conditions. This goes back to a 20 year old document, a report on children from the early 1980s. I would have thought 15 years the appropriate cut-off age, as that is the compulsory schoolgoing age. All these provisions for dealing with children could be dealt with in the context of not treating them as criminals; one could still put the paraphernalia of conferencing and garda diversions in place without engaging in that.

Something that is glaringly absent from the Bill relates to the substantial level of parental responsibility built into the conferencing procedure. I have no problem with that but we must realise that the nuclear family is no longer quite the norm in Irish society. One cannot simply talk about parental responsibility without going into the broader family context. That resource will have to be expanded into the immediate family, the wider family and the community. The people we are dealing with here are not amenable in a simple parental fashion, much as we would like that. This provision will have to be broadened and the Minister of State should respond to that. We are talking about dealing with drugs and the task forces are being put in a community setting, as are development and the partnerships. However, while this is put in a parental or family setting it is not in a community setting. There is no reason the community cannot be brought into the conferencing or peer models within the community cannot be brought into the situation. Often the parents can do nothing about the matter for one reason or other.

They will.

How that is done will determine the success or failure of the Bill. That is the key.

I welcome the Bill. There is much to be teased out in relation to it but I take it as a step in the right direction in dealing with a problem that needed to be addressed for a long time. I hope the Minister of State accepts some recommendations and amendments on later Stages.

I welcome the Bill, as have previous speakers who highlighted its good points. It adds a new dimension and upgrades the juvenile system by creating a framework. Nobody doubts that there will be teething problems but if we get the concepts right we can work on that. We can deal with sections of the Bill that require work for implementation. It is a broad, worthwhile Bill which allows everyone the opportunity to get involved.

The Bill will also protect children against persons who have custody or care of them and provides for the new development of the family welfare conference, and it is to be supported for those reasons. The Bill also raises the age of criminal responsibility to 12 years and up to 18 years while also introducing a series of measures designed to divert children away from crime. That is the core of the legislation.

The thrust of the Bill is that children should not be imprisoned until that is the only option left after all other community-based measures have been tried and then only if they fail. The Bill deals with children who are at risk of committing an offence, who have committed offences or who are charged and convicted. That is it in a nutshell and if we get that right, we can deal with each area separately and it should be easy to tackle each Stage of the Bill.

In a previous capacity I dealt with young offenders in an area where the fabric of society had failed and I understand the problem. I understand how these children get into difficulties, why they have behavioural problems and why they are out of control and have no sense of responsibility. We must reflect that when creating a mechanism or programme which is to help those young offenders.

We must realise that society has changed. With marital breakdown the family has changed drastically and that has made new measures necessary. That gives cause for new thinking.

The aspect of the Bill that differs from my experience relates to the special care order. This will also be added to the care orders and supervision orders. It is for children at risk from their own behaviour. It is welcome that in this case a garda can speed up the measures and introduce a special care order if that garda finds that such children are at risk. This gives a new dimension to the legislation and gives comfort to those specialists who deal with young offenders.

The family welfare conferences and their workings are also to be welcomed in so far as the Bill deals with the composition of these welfare conferences. I understand that such conferences will be put on a statutory basis. Up to now, we have had such conferences but they were not called welfare conferences. Instead, they were called case studies. In these case studies the principal of the school concerned was involved, as was the psychologist, the career guidance teacher, the home-school link person, the remedial teacher, the probation officer or social worker, the JLO and the attendance officer. I have sat in on many such case studies. However, they were not on a statutory basis and there was no monitoring of decisions made as a result of those case studies. In the middle of this, the young offender got lost in the process.

I particularly welcome the move to this special conference, which will be monitored and will have a co-ordinator with special skills in dealing with such matters. Its function will be to decide if a child needs special care. The composition of the conference will be very important. There are people who claim they are professionals yet would not have a clue how to deal with the problem of young offenders. I am speaking against my own profession by saying this, but we must be careful that the composition of such conferences is correct. If we are not sensitive, or get too clinical, we may ignore the core reasons why such conferences were established. It is important to be selective in choosing people for these conferences.

I like the area of the Bill dealing with first offences. These are to be dealt with through the diversion programme. I love the phrase "restorative justice". We used to feel in the past that once a person committed an offence, they were deemed to carry that with them for the rest of their lives. An attempt is now to be made to make the child aware of his or her responsibilities. The child will perhaps apologise to the victim.

However, it may prove difficult to implement this proposal despite the concept being an excellent one. Who will implement the programme? Who will deal with it? Will it be the juvenile liason officer, the teachers concerned, or some outside body such as the health board? To get that right at the first stage – at the first offence – will be a good day's work. If a child can be made to understand that he or she is responsible for their own behaviour, that the victim has been hurt and that an apology is necessary, then this will be a good thing. A programme should be devised that will be implemented in the community. I agree with the concept. I know that the Minister is trying to put this on a legal footing but success will depend on the implementation.

The Minister is also to implement new measures for administering a caution, be it informal or formal. This will again be subject to the monitoring of the JLO. I have worked with many excellent JLOs but some are unsure of the broad concept.

We must also devise an action plan for punishment. These children have done wrong, and they must be punished to make them understand that they have done wrong. How to do that is a key question. The experts in this area must talk to the children involved. The children may not have outside supports. They may not have their parents with them. They may have other people coming in from the community. They may be lost as children. We must devise a plan for them, be it community involvement by parents, apologies, reparations, monitoring the child's movements or attendance at school. The schools will always play an important part in this process.

This must be done sensitively. The Minister has set up a committee to monitor the effectiveness of the diversion programme. I would like to see that enlarged before I am convinced that it will work. I am playing devil's advocate here as I have worked on the ground in relation to case studies and know how successful or not they have been. The only difference here is that the proposed conference is on a statutory basis which gives it effectiveness in implementation.

There is much good in the Bill. I am concerned about the Special Residential Services Board, although I do not want to play the devil's advocate about it. I hope it will work. This is a good Bill. The conferences, the diversion programmes and the child orientation are all welcome. If we get the proper personnel to deal with it in the schools, in the home-school link and in community involvement, that will be welcome. I do not know how it will be done, but it is how the Bill is implemented that will decide its success or failure. It is a good move forward. If I were back in my old profession, I would love to be implementing it.

This is an important debate and an important Bill. It is one which has been due for some time and is an area in which this House takes a particular interest. The previous Bill in 1996 spent a good deal of time in this House and I recall it with particular interest and affection. Members are entitled to claim a measure of credit for this House. Senator Ryan and myself put down a new section in that Bill which introduced the guardian ad litem for the first time. That was important and showed how this House could work in the area. I will not take too much time and hope that I will be reasonably cogent. I apologise to the Minister if what I have to say is a little hazy. A part of my not very large brain is still suspended somewhere over the South China Sea.

There is acknowledgement from all sides that this legislation is necessary and timely. We should have done this a long time ago. As politicians, we stand reproved by a series of remarks by learned judges in the Irish courts. In 1995, in the FN case – just the initials were used – Mr. Justice Geoghegan said that the State had a constitutional obligation to provide "as soon as reasonably practicable suitable arrangements of containment with treatment for troubled children." That was six years ago, so it has taken some time to reach this point. We need to look at this with a degree of urgency. I do not mean this as a criticism of the present Minister as she has worked very hard both in her Department and within Government to secure funding in this area. However, we all stand reproached. In October 2000, Mr. Justice Peter Kelly threatened to hold three Ministers in contempt if they did not provide suitable residential accommodation.

I accept this is only one area with which the Bill deals. We must, however, be careful in how we proceed in respect of that area, particularly when we consider the abuses which occurred in Artane and Letterfrack. We must remember that the abuses to which I refer were carried out within a system for which we, as lawmakers, had a moral responsibility. It is important, therefore, that we get it right this time.

As already stated, the Minister of State has a good and vigorous record in terms of the work she has done in this area. That comes as no surprise because I had the pleasure of working with her some years ago on the women's rights committee. I do not believe it was mere partisanship when Deputy Andrews in his article in The Irish Times on 3 March expressed his concerns about this area and pointed out that approximately 4,000 children are already in care, quite a number of whom are looked after by foster families. The Deputy proceeded to discuss the Minister of State's work and stated that in last December's budget she achieved almost a trebling of the foster care allowance to £200 and £220 for children under 12 and over 12, respectively.

The Minister of State proposes to raise the age of criminal responsibility to 12 years. This does not mean that children under 12 cannot do wicked things. One need only consider the Bulger case to discover the truth of the matter. Children are capable of monstrous acts and the special skill of a child psychologist is required to discover why that is the case. Part of the thinking behind the Bill is to try to ensure that we can limit the damage as much as possible.

The Bill also deals in some measure with teachers and schools. By taking pre-emptive action, we can reduce the necessity for this kind of care. I wish to relate to the House a particularly heart-warming story. I was invited, with other Members of the Oireachtas, some of whom actually put in an appearance, to the Central Model School in Marlborough Street two weeks ago to take part in the activities for children's reading week. On my visit to a class of seven to eight year olds, I brought along a small model of Beatrix Potter's Mrs. Tiggywinkle and the book that accompanies it. When I first entered the classroom I thought, in my ignorance, I had arrived at the wrong school. The children looked as if they had been bussed in from Dalkey, Howth or some rather grand place. They were an absolute joy, beautifully dressed and extraordinarily courteous. They did not pull at the book when they wanted to read it, they asked to be allowed and were desperate to do so. Their parents were part of the programme and co-operated with the school.

The children to whom I refer come from places such as Sean McDermott Street, Gardiner Street, Champion's Avenue and other areas in which there are many social problems. The reason they are developing so well is the Breaking the Cycle initiative, where the ratio is one teacher per 15 children. This initiative works and it should be expanded because it will help to obviate many of the problems with which the Bill deals. I am extremely proud of what these children have achieved but I am concerned about what will happen to them when their time in the Breaking the Cycle programme reaches an end. In my opinion, they will fall back into the quagmire. I know this matter is not strictly appropriate to the Minister of State's brief, but perhaps she could raise it with her colleagues in Government. The Breaking the Cycle initiative must be continued in areas of deprivation and extended to second level schools to give these children a chance. It is horribly cruel to give them hope and then, just when they need further support, dump them.

I am concerned about the provision of resources, particularly in terms of ensuring that teachers have special expertise, that there will be properly qualified professionals etc. I accept there will be a delay before these people enter the system. I hope the Minister of State is in a position to reassure the House that proper and adequate resources will be made available. I am sure Members on all sides will give her their strong support in terms of her going back to the Government and obtaining as much assistance as possible.

I like the concept of family welfare conferences. Such conferences will be a good and humane development and will give children and their families support instead of demonising either of them. I say this because many years ago I was involved in a number of awkward situations involving my family and other families. On a number of occasions, otherwise well-meaning people said, "It is very sad but I do not want to get involved." We must get involved. Children cannot be left waiting for the State to assist them.

The concept of restorative caution is excellent. Requiring a child to face up to and accept responsibility for his or her misdoing in the presence of a member of the Garda Síochána and the victim of their anti-social behaviour will, in the case of most children, leave a mark and may help them reconsider their actions and ensure that they do not enter a fully professional life of crime.

I reiterate that the Bill is a step forward and is part of a process. I appeal to the Minister of State to perhaps take up with her colleagues the suggestions put forward by Members, particularly those relating to methods of positive intervention such as the Breaking the Cycle initiative. Previous speakers referred to remedial teachers, the numbers of whom are simply not adequate. I have spoken on a number of Adjournment debates in the House about tragic cases where children began to backslide because suddenly, for financial reasons etc., the services of speech therapists and others were withdrawn. That is a cruel way to treat the children who rely on these people. Proper resources must be provided to allow the provisions of the Bill to be fully implemented.

Ba mhaith liom mo bhuíochas a ghabháil leis na Seanadóirí uilig a ghlac páirt sa díospóireacht seo agus is léir go dtugann siad tacaíocht don Bhille agus do na prionsabail atá taobh thiar de.

Bhí an-chuid le rá ar na hábhair éagsúla agus, ar ndóigh, d'fhéadfaimis a bheith anseo ar feadh tamaill fhada eile ag labhairt ar na hábhair go léir atá sa Bhille.

Everyone recognises that this is major legislation. As many Senators stated, it is a landmark Bill and is the first major updating of the Children Act, 1908. It is high time that this was done. The Bill is a reflection of the Government's commitment to deal not only with children who are offenders but also children with behavioural difficulties. We must ensure that we can put in place for these children the statutory framework to protect them and give them the support they require as part of our overall policy on child protection and child welfare.

We are all concerned about the level of juvenile crime. It has been stated that the younger generation is probably more angry than those which preceded it. It is important to recognise that the anger among young people is a result of what is happening in society. As Senator Taylor-Quinn indicated, society has created these young people. We must respond by ensuring that society will now cater for their needs. Where anti-social behaviour occurs we must support the young people involved while also putting in place measures that will prevent it happening or, where it does happen, prevent a recurrence.

I stress that the Bill does not provide for a juvenile justice system that can be neatly packaged and implemented in a rigid manner. It does, however, set out the process for the future development of the juvenile justice system and contains a great deal of scope in that regard. It ties together those three Departments responsible for young people who are offenders and non-offenders. This substantive Bill is a measure of the co-operation between the Departments of Justice, Equality and Law Reform, Health and Children and Education and Science. It is noteworthy and noble legislation.

One of the first questions which will continue to be asked is how and when the Bill will be implemented. That the Bill has come this far is evidence of the commitment of the Government. Some preparatory work has already been done on the juvenile justice side: the extension of the probation and welfare service, the piloting of family group conferencing, both family welfare and family conferences, the establishment on an interim basis of the Special Residential Services Board and the capital investment in providing places not just for young offenders but also for children with behavioural difficulties. That has laid the groundwork for the phased implementation of the Bill. Some elements will be introduced immediately while other elements will take time. Nonetheless, we intend to expedite this as quickly as possible.

Senator Taylor-Quinn referred to children with difficulties in school. When children are identified as having such difficulties, that is the time to put in place immediately the appropriate services for them. The Education Welfare Board recently established by the Minister, Deputy Woods, will go a long way towards doing that. The National Children's Office set up under the national children's strategy is working on a model to see how the various agencies respond and work together at local level in the interests of children. This inter-agency approach is the way to go because it will support the work of the Bill.

Where children are in need of services, they must be met by trained personnel who have the facility to deal specifically with children. That is also the case in the children detention schools, an issue raised by Senator Taylor-Quinn. Children in existing detention schools have fully qualified child care staff. Care plans are put in place for the children in which there is psychological and psychiatric input and for which there is medical expertise and services. The children also have trained teachers who work with a very low pupil-teacher ratio to ensure the children receive education and training. I have visited each of the centres: Trinity House in Lusk, Oberstown in Finglas, St. Michael's, St. Laurence's and Clonmel. The manner in which they respond to the different age groups they have within their care is laudable. That is something we want to keep under review to ensure children receive every opportunity to take State examinations so that they will be on a par with other children when they leave those centres and to ensure they receive the special therapeutic care they need.

Therapeutic care is essential for children who have behavioural difficulties but have never offended. These children are in high support and special care units. There have been difficulties recruiting people for these centres, especially social and child care workers. One of the issues was salaries and we recently sanctioned an increase in the salaries for child care workers to try to attract people to this area of work which, while difficult, is undoubtedly rewarding. These children deserve the best and our aim is to ensure additional social workers will be trained, as will be the case in the next few years as new places are created in colleges and special courses in child care are developed, and to ensure they receive the salaries to compensate them for the type of work they do. These are some of the initiatives which will help.

Having custom-built places of the highest standard will make the working conditions more attractive for such people. Having additional special care places means we can respond not just to the needs of staff but also to the needs of children. Investment is also being made in family and family welfare conferences. By putting all this in place, we are making a valuable contribution to the child welfare and protection system.

That is also true of the probation and welfare service. Senator Henry asked a question which she subsequently answered when she said a number of different probation and welfare officers have been recruited. It is encouraging to see the uptake in that area. Their role is crucial to young people and young offenders as outlined in the Bill.

We will through the Bill deal with children in different ways. The raising of the age of criminal responsibility to 12 years means all those children under 12 who might otherwise have come before the juvenile criminal justice system will now come into the care of health boards. Many Senators had suggestions about the age of criminal responsibility. Senator Costello said it should be 15, Senator Taylor-Quinn said it should be 14 and the suggestion in the 1996 Bill was that it should be ten. It is a debate which has been ongoing for some time. Having examined it carefully, the age of 12 was decided upon. That is one of the highest ages in common law jurisdictions. There is also a rebuttable presumption in the Bill that a child aged between 12 to 14 is incapable of carrying out a crime. This is known as the doli incapax rule. The extension to that age group will protect those children.

Senator Costello referred to principles in the Bill. It is unusual to find a Bill which sets out principles as well as procedures. It is one of the welcome features of the legislation. It is set out clearly that they are in the Bill to protect children and to recognise the role of families and their ability to work in their children's interests. That is valuable and I reject Senator Costello's comment that they are only procedures. They are not. The procedures are laid out in the legal sense and these are supported by strong principles based on good child welfare practice.

Senator O'Donovan likened the Bill to the Succession Act, which every woman recognises as among the most important legislation ever, and to the Company Law Act, 1963. I know the Minister, Deputy O'Donoghue, would be glad to know the Bill was likened to those two major Acts. There is merit in that argument. The Senator also spoke about those who could attend the conference. Having examined this carefully, while we believe a unanimous decision of the family conference is crucial if an action plan is to work, a situation may arise where someone disagrees or is awkward or difficult, and that is covered in the Bill in that it will not invalidate the proceedings of the conference.

I know Senator Henry has an interest in the welfare of children with a mental illness and she contributed to the debate in that area last week. She was concerned children should not fall between two stools. The answer to that is in the inter-agency approach and ensuring that work is done on that basis locally and nationally. The issue of psychiatric services for children and adolescents is a serious one. It was not tackled for many years and is only now being tackled through an investment by the Government. I recently received a report of the child/adolescent needs working group which has set out its plan for what is needed in the next few years. Work is already under way in providing residential services for young people with psychiatric problems and ensuring other services are put in place for them. I know a great deal of work remains to be done but we are ensuring a beginning.

Senator O'Toole made the point about the court having to satisfy itself that there is a place in a children detention school before making an order for detention. This will be one of the great values of the Special Residential Services Board. There have been situations where children were sent by the court to a centre only to find there was no bed. The value of the Special Residential Services Board will be to co-ordinate the work of the centres and involve the different Departments. Having been established on an interim basis, the board will be aware on a daily, weekly and monthly basis of what beds are available and where. The fact that it will be able to advise the court in its work will mean the liaison between the courts and the centres will ensure the interests of the child are preserved and that he or she will not be sent from one place to the other until a service is available for him or her.

Senator O'Toole referred also to the orders affecting parents. We all recognise the difficulties of parents in rearing children, particularly unruly children who can pose particular difficulties for parents. These parents need to be supported. The Bill should also be seen in the context of the whole family support programme.

Yesterday I addressed a conference of the Springboard family support projects and the launching of new documentation and research which shows that family support works. The extension of family support projects throughout the country will identify families with children at risk and help them. However, as I said, there are families who for whatever reason, perhaps their own selfish needs or their lifestyle, have abdicated responsibility for their children. Our aim, including that of every child, is for children to live with their family. This is something which struck me very forcefully during the preparation of the national children's strategy where children throughout the country said the most important people in their lives were their families. We need to bring about a situation where the family is able and willing to support its children in the interests of not just the child, but of the family and, ultimately, society in general.

While I talk about giving support to these families, under the Bill the court has powers available to it to target problems within families, in particular, in regard to addiction and encouraging positive lifestyles and good parenting for these families. It is important to see the carrot and the stick, the support and the forced co-operation by the courts, in the same context, which is designed to support the children and their families.

Senator Leonard asked what would happen to a child who did not admit to an offence. Obviously, if there is sufficient evidence and it is a relatively serious offence, the child will be charged. However, the aim of the Bill is not to bring charges or criminalise children. Every child will be innocent until proven guilty. Obviously, if a child admits to committing a crime, he or she will be able to go down the restorative cautioning road and, all things being equal, participate in the family conference where the victim would be present. All the options are included in the Bill to protect the child.

The community is important also in a child's life. Senator Costello raised this issue in the context of the family conference. Any person who in the opinion of the co-ordinator can make a valuable contribution to the conference can be invited to participate. That may include a teacher, social worker, sports leader or someone who has worked closely with the child. We recognise that a child cannot be isolated from his or her family or community. Another area where the community is involved is where the court can appoint a mentor for the family who might be a family member or a responsible member of the community who might know the family well. That, too, will put the provision in context.

Senator Ormonde asked who will initiate the conference. Obviously, a Garda conference will be initiated by the director of the Garda national juvenile office. The probation and welfare service convened conference will be initiated by the courts and remain under court supervision because it is a formal part of the whole process in protecting the child.

Senator John Cregan spoke about the alternatives being used for the child and using family conferences before going down the road of detention. He recognised, as we all do, that the principle behind the Bill is to have detention as a last resort.

As I said, it is our intention to implement as much of the Bill as possible quickly. I recognise much needs to be done. We need to complete the building programme, recruit staff, train people and adopt an inter-agency approach. Given that the work has already begun, that there has been added investment by the Government in the last three years and that we will now have the legislative process in place to give a statutory framework to all our work, in conjunction with all our other policies, we will shortly be in a position to work, not just for the benefit of such children, but for their families and society.

I thank Senators for their contributions to this major legislation and look forward to coming back on Committee and Report Stages.

Question put and agreed to.
Committee Stage ordered for Tuesday, 26 June 2001.
Sitting suspended at 5.30 p.m. and resumed at 6 p.m.