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.
