Children (Amendment) Bill 2015: Committee Stage

I welcome the Minister for Children and Youth Affairs, Deputy James Reilly.

SECTION 1

Amendment No. 1 is a Government amendment. Amendments Nos. 1, 3 to 9, inclusive, and 13 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 1:
In page 5, lines 20 and 21, to delete “and for the repeal of different provisions of section 156A of the Principal Act effected by section 3”.

Section 1 provides for the commencement of the Bill, including the commencement of repeal provisions. It refers to the repeal of different provisions of section 156A on different days. Section 156A provides for the accommodation of 16 and 17-year-old males in St. Patrick's Institution pending places becoming available in children detention schools. Since 1 May 2012, 16-year-old males are no longer detained in St. Patrick's Institution under this provision. Section 156A will no longer be required and all children can be accommodated in a children detention school. It is, therefore, proposed to repeal section 156A in full on a particular day. As it is proposed to repeal section 156A in full on a particular day, the reference in section 1(3) to the repeal of different provisions of section 156A of the principal Act is therefore not required. The amendment proposed to section 1, therefore, provides for the deletion of the reference to the repeal of different provisions of section 156A.

The amendments to subsections (6), (7) and (8) of section 3 propose to delete any reference to the repeal of different provisions of section 156A on different days. The amendments proposed will also make provision for consequential technical amendments in subsections (6), (7) and (8) following the deletion of the reference to the repeal of section 156A on different days.

Amendment agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.
SECTION 3

Amendment No. 2 is a Government amendment. Amendments Nos. 2, 11, 16, 17, 20 to 22, inclusive, 25, 35 to 38, inclusive, 54 and 69 are cognate and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 2:
In page 6, line 8, to delete “in custody”.

These are all technical drafting amendments and will delete references to "in custody" wherever there is a reference to a remand. The Bill, as published, contained references to "remanded to" and "remanded in custody to". The amendment will provide consistency in terms of references to "remanded" throughout the Bill.

Amendment agreed to.
Government amendment No. 3:
In page 6, line 22, to delete “one or more provisions of”.
Amendment agreed to.
Government amendment No. 4:
In page 6, line 25, to delete “repeal of the provision or provisions concerned” and substitute “date of commencement of subsection (1)(c)”.
Amendment agreed to.
Government amendment No. 5:
In page 6, lines 26 and 27, to delete “repeal of any of the provisions of section 156A of the Principal Act” and substitute “commencement of subsection (1)(c)”.
Amendment agreed to.
Government amendment No. 6:
In page 6, line 29, to delete “that provision of the said section 156A” and substitute “section 156A of the Principal Act”.
Amendment agreed to.
Government amendment No. 7:
In page 6, line 30, to delete “such repeal” and substitute “that commencement”.
Amendment agreed to.
Government amendment No. 8:
In page 6, line 31, to delete “repeal” and substitute “commencement”.
Amendment agreed to.
Government amendment No. 9:
In page 6, lines 34 and 35, to delete “repeal of any of the provisions of section 156A of the Principal Act” and substitute “date of commencement of subsection (1)(c)”.
Amendment agreed to.

Amendment No. 10 is a Government amendment. Amendments Nos. 12 and 14 are consequential on amendment No. 10. Amendments Nos. 10, 12 and 14 may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 10:
In page 6, between lines 37 and 38, to insert the following:
"(9) Notwithstanding the repeal of section 156A by subsection (1)(c), a person under the age of 18 years who is serving a period of detention in Saint Patrick's Institution or a place of detention may, at any time on and after the date of such repeal, be transferred by the Minister for Justice and Equality, with the consent of the Minister, from Saint Patrick’s Institution or a place of detention, as the case may be, to a children detention school specified in an order under subsection (10).".

Amendment No. 10 provides for an amendment to section 3 to insert a new subsection (9). The amendment is related to the proposed repeal of section 156A in full on a particular day, as I have outlined in respect of previous amendments. The proposed new subsection (9) in section 3, which is a transitional provision, will enable the transfer of any child from St. Patrick's Institution or a place of detention to a children detention school, notwithstanding the repeal of section 156A in full.

Amendments Nos. 12 and 14 will make provision for consequential amendments in subsequent subsections in section 3 relating to the introduction of the new subsection (9).

Amendment agreed to.
Government amendment No. 11:
In page 6, line 40, to delete "in custody".
Amendment agreed to.
Government amendment No. 12:
In page 6, line 40, to delete "detained" and substitute "detained, including on foot of a transfer under subsection (9),".
Amendment agreed to.
Government amendment No. 13:
In page 7, lines 3 and 4, to delete "repeal of any of the provisions of section 156A of the Principal Act" and substitute "date of commencement of subsection (1)(c)".
Amendment agreed to.
Government amendment No. 14:
In page 7, lines 4 and 5, to delete "subsections (7) and (8)" and substitute "subsections (7), (8) and (9)".
Amendment agreed to.
Section 3, as amended, agreed to.
Section 4 agreed to.
SECTION 5

Amendment No. 15 is in the name of Senator Cullinane and Sinn Féin Senators. Amendments Nos. 15 and 19 are logical alternatives and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 15:

In page 7, after line 34, to insert the following:

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

"(2A) Remanded children shall be kept separate from sentenced children where it is in the best interests of the child.",".

I welcome the Minister back to the House. I fully support the Bill. Any amendments we have tabled are in the spirit of strengthening the Bill. I commend the Minister for bringing it forward.

This amendment adds a paragraph "(2A) Remanded children shall be kept separate from sentenced children where it is in the best interests of the child." In broad terms, I welcome the Bill which will provide for the amalgamation of the three children detention centres into one legal entity and underpin the legal authority of the campus manager. However, it is also vital to reiterate the principle that detention, including detention on remand, is a last resort for children and must never be used for care or welfare purposes. This is a clear requirement of the UN Convention on the Rights of the Child and is reflected in the Children Act 2001, as amended. Furthermore, while the children detention schools are annually inspected by HIQA, the standards and criteria for children detention schools were issued in 2004, adopted in 2008 and have not been revised since. The Irish Penal Reform Trust has repeatedly recommended that these standards be reviewed to ensure that they adhere to current best practice.

Section 88(8) of the Children Act 2001, as amended by the Criminal Justice Act 2006, provides that remanded children shall be kept separate from sentenced children only as far as practicable and where it is in the interests of the child. Article 10 of the International Covenant on Civil and Political Rights requires that juveniles be separated from adults and remand prisoners from convicted prisoners. Notably, the UN Human Rights Committee, in its concluding observations in July 2014, stated that despite the current reservation to the Article that is in place, Ireland should "establish a concrete timeframe for the achievement of complete separation of remand and sentenced prisoners, juvenile and adult prisoners and detained immigrants and sentenced prisoners. At the very least section 88(8) should be amended to provide that "Remanded children shall be kept separate from sentenced children where it is in the best interests of the child", which is what the amendment states.

I hope the Minister will be in a position to accept the amendment.

I received, as I am sure all Members did, an e-mail from the Irish Penal Reform Trust on the very matter outlined stating it had concerns about children. The trust said it would like the separation of children on remand from convicted children. I put on record the fact it has concerns too.

I stand in support of both amendments Nos. 15 and 19. I reiterate what I said on Second Stage about our commitment, as a Legislature, to the internationally and domestically recognised principle of detention as a last resort for children, both those committed to detention and detained on remand. As others have said, section 88(10) of the Children Act, as amended, stipulates that the court shall not retain a child in custody solely on the basis of care or protection concerns.

On Second Stage, I expressed my concerns about section 5 of the Bill which allows for part or all of a detention school to be designated a remand centre. I believe we are starting from a point of non-compliance with our international human rights obligations. I refer chiefly to 10(2) of the International Covenant on Civil and Political Rights under which Ireland continues to maintain a reservation. The Minister will recall the concluding observations of the UN Human Rights Committee last July. It said Ireland "should establish a concrete timeline for the achievement of complete separation of remand and sentenced prisoners, juvenile and adult prisoners and detained immigrants and sentenced prisoners".

I fully support the recommendation of the Irish Penal Reform Trust, which others have stated and which is reflected in both amendments before us. At the very least, section 88(8), as amended, should be amended again to provide that remanded children should be kept separate from sentenced children where it is in the best interests of the child.

Article 42A of the Constitution and the UN Convention on the Rights of the Child, which was ratified by Ireland in 1992, deals with the best interests of the child. It is incumbent on us, as a Legislature, in the drafting of any Bill which impacts on a child's life, to ensure the best interests of the child are the paramount consideration, the views of the child are heard when key decisions are made about their lives and to take into account the evolving capacity of the child and ensure it is facilitated. Therefore, I support the amendments.

I have listened to what the Senators have said and I take the spirit of its intent. Amendment No. 15, as proposed, would result in a free-standing requirement that remanded children would be kept separate from sentenced children where it is in the best interests of the child.

Section 88(8) of the existing Children Act 2001 already deals with the issue of remand children and separated children where the remand centre is located in a children detention school. The existing section 88(8) outlines the important principle that where children are remanded in a children detention school, such children shall, as far as practicable and where it is in the interests of the children, be kept separate from and not allowed to associate with children in respect of whom a period of detention is imposed. The effect of the proposed amendment would be to remove the "where practicable" clause of the existing section 88(8). It would possibly require a complete separation of remand children and committal children in all instances, irrespective of whether this is in fact possible. It should be noted that the existing children detention school in Oberstown tends to be full on most occasions, with varying numbers of children on remand or serving a sentence at different times of the year depending on the demand for detention places from the courts system.

In line with section 88(8), every effort is made to accommodate children in custody on remand in separate residential units from children who are serving a sentence of detention. This is an issue of professional assessment of the situation of each child and the day-to-day operational management of the children detention schools. In an environment of high demand for both remand places and places where children are serving a sentence, it would not be possible to keep remand children and committal children separate on all occasions. This would require a significant increase in detention accommodation. It would also result in the new accommodation being built on the Oberstown campus being insufficient to cater for all children up to the age of 18, as is currently planned. The need to meet the requirements of the proposed amendment could also undermine the existing policy that is in place of keeping male and female children in separate residential facilities in all circumstances. I note there are also circumstances where separation of a remand child from committal children may not be in the child's best interests. In addition, I am advised there are frequently cases where a child is both remanded in custody on one set of charges and serving a sentence of detention on another set of charges. Therefore, I do not accept the amendment.

In regard to amendment No. 19, section 88(8) of the Children Act provides for the following important principle. Where children are remanded to a remand centre situated in a children detention school, such children shall, as far as practicable and where it is in the interests of the children, be kept separate from and shall not be allowed to associate with children in respect of whom a period of detention is imposed. I note the purpose of the Senator's amendment is to replace the wording to state "where it is in the best interests of the child". I am broadly agreeable, in principle, with the amendment. However, I intend to consult the Office of the Attorney General on the matter in the context of the Bill.

I thank the Minister for his response. I do not want to sound pedantic. That was certainly not our intention when tabling the amendments. It may seem pedantic when one tables an amendment about one word but one word can make a huge difference, as it does in this case. As I do not want to delay the passage of the legislation, I will not repeat the arguments in favour of the amendments.

I mentioned the conclusion reached by the UN Human Rights Committee which stated that Ireland "should establish a concrete timeline for the achievement of complete separation of remand and sentenced prisoners, juvenile and adult prisoners, and detained immigrants and sentenced prisoners". Perhaps the Minister would outline what moves the Government is making in that direction. Is there a timeline? He mentioned what would happen if he accepted the amendment and that it may not be possible to have complete separation because of resources. Are we moving in the direction the UN Human Rights Committee has advocated? Are we looking at a timeframe? It would be helpful to my party and the House if the Minister was in a position to give us that information.

I welcome Deputies Frank Feighan and Charlie McConalogue and their guests to the Visitors Gallery.

I wish to comment briefly on amendment No. 19. I thank the Minister for accepting the broad thrust of the amendment tabled by my colleague, Senator Terry Leyden. The Minister indicated he would seek the advice of the Attorney General. Is it fair to assume that if the advice from the Attorney General is favourable to the amendment, the Government would bring forward an amendment on Report Stage?

In response to Senator David Cullinane, I am not in a position to give him a concrete timeline at the moment but certainly that is the direction of travel.

On the circumstances where it would not be in the child's best interests to be separated from children that have been sentenced, there is a strict policy of keeping male and female children in separate residential facilities in all cases. In recent years there have been very few female children in custody and on many occasions in the past 18 months there have been none in custody, including today. That is a welcome development. Owing to the low number in custody there is only one unit of accommodation used for females. There is no practical method of providing two units of residential accommodation for female children in such circumstances, given that the primary demand for detention places is for males.

In addition, if two female children were in custody and one was remanded while the other served a sentence, I do not believe, and I think many people would agree with me, that it would be in their best interests, as the only females in custody, to be kept in de facto solitary confinement from one another. Other examples would include if there were two children from the same family, ethnic group, nationality or geographical area, with one on remand and one serving a sentence. In such cases it is entirely possible it would be in their interest to be accommodated together, although I hasten to add not always. In that regard, Senators can understand the exigencies.

I make the following appeal, which is something that continually faces us as politicians. Let not the perfect be the enemy of the good. The Bill is very good and moves us along considerably. This is a new unit, ethos and era where no one under 18 years will find themselves in prison, rather in a detention school where the ethos is based on rehabilitation, education and preparation for life, as opposed to the penal servitude system of the prison service.

Amendment put and declared lost.
Government amendment No. 16:
In page 8, line 3, to delete “in custody”.
Amendment agreed to.
Government amendment No. 17:
In page 8, line 6, to delete “in custody”.
Amendment agreed to.

Amendments Nos. 18 and 23 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 18:

In page 8, between lines 6 and 7, to insert the following:

“(b) by the insertion of the following subsection after subsection (7):

“(7A) Where a child is convicted of an offence and a period of detention is imposed on the child by a court, the period of detention shall not exceed the term of detention or imprisonment that the court could have imposed on a person of full age and capacity who is convicted of such an offence, and may be less. The Court shall have regard to the age, level of maturity, best interests of the child and the principle of imprisonment as a last resort in determining the nature of any penalty imposed.”,”.

We note that section 8 amends section 149 of the Children Act 2001 and provides that where a child is convicted of an offence, the period of detention imposed on that child should not exceed that which the court would have imposed on an adult. While it is noted that the purpose of the section is to give consideration to the principle of equality of treatment between children in detention schools and adults in the prison system, considering the importance of the principle that detention should be a last resort for children, we recommend that this provision be amended to more closely reflect the spirit and wording of section 96 of the Children Act 2001. The amendment proposes that where a child is convicted of an offence and a period of detention is imposed on the child by a court, the period of detention shall not exceed the term of detention or imprisonment that the court could have imposed on a person of full age and capacity who is convicted of such an offence and may be less. It also proposes that the court shall have regard to the age, level of maturity, best interests of the child and the principle of imprisonment as a last resort in determining the nature of any penalty imposed.

Amendment No. 23 also refers to section 8 which provides that where a period of detention is greater than three years is imposed on a child, a court must give its reasons for doing so in open court. It should be noted that the original Children Act 2001 provision, before it was amended by the 2006 Act, contained an upper limit and did not permit a court to impose a sentence on a child in excess of three years. Therefore, we would suggest that the proposed provision under section 149(2) be amended. We make this submission in the light of recommendation No. 33 of the report of the strategic review group on penal policy, which was published in September 2014. The group recommended that in all cases where a custodial sentence is imposed by a court, the court shall set out its reasons in writing for so doing. The group further recommends that this requirement be incorporated in statute. As far back as February 2003, the Law Reform Commission also recommended that a District Court judge should be required to give concise written reasons for any decision to impose a custodial sentence on a child. The strategic review group considered whether this requirement would constitute a significant additional burden on the court but concluded that it would not. The obligation to provide reasons already exists and this recommendation simply requires that those reasons are recorded in writing. In cases where the liberty of a child is at stake it is even more imperative that there is clarity around the rationale for such a significant decision. Such a statutory provision would promote consistency in sentencing and bring clarity and transparency not just to the court but also to victims, offenders, legal practitioners and the public.

I was a little confused about the placing of amendment No. 18. I contacted the Bill's Office to try to clarify the issue and will speak to the amendment as it is now. We are all agreed that detention should be a last resort for children and those involved in the juvenile justice system, including legislators, State agencies and members of the Judiciary, cannot lose sight of this fundamental principle. I support amendment No. 18 for that reason and look forward to the Minister's response to it. The amendment put forward by Sinn Féin more closely reflects the spirit and the wording of section 96(3) of the Children Act and of Article 42A in the Constitution, as approved by the Supreme Court and the internationally and domestically accepted principle of detention as a measure of last resort for children. Would Sinn Féin be willing to change the word "imprisonment" to "detention" and resubmit the amendment on Report Stage? I do not like the use of the word "imprisonment" in the context of children.

On amendment No. 23, given the onus on the court to consider all non-custodial sanctions first and to impose a period of detention only as a measure of last resort, I agree that the court should have to account for its decision and its rationale in writing. Recommendation No. 33 of the strategic review group on penal policy of September last suggested that in all cases where a custodial sentence is imposed by a court, the court should set out its reasons in writing for doing so. The group further recommends that this requirement be incorporated in statute, which is what amendment No. 23 seeks to do. If this amendment is not accepted by the Minister today, I will revert with an amendment on Report Stage that will provide that the court should explain the reasons for its decision in open court in language that is appropriate to the child's age and level of understanding, which I believe is in keeping with the language referring to the remanding of children to detention in section 88(3) of the Children Act and with recognised principles of child-friendly justice such as the guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice from 2010. I am very supportive of the principle behind the amendment but perhaps the wording could be re-examined.

Amendment No. 18 proposes to insert the words "and may be less" to the substituted subsection 149(1) as provided for in section 8. The subsection already makes provision for this and the only limit being imposed by section 149(1) is that the period of detention imposed on a child by a court shall "not be more" than the period of detention or imprisonment that could be imposed on an adult. This does not mean that a lesser period of detention cannot be imposed on a child. In addition, section 96(4) of the Act, providing for the powers of the court vis-à-vis child offenders provides that the penalty imposed on a child for an offence should be no greater than that which would be appropriate in the case of an adult who commits an offence of same kind and may be less. This Bill is not proposing to amend section 96(4) in any way. I do not consider that the words proposed are necessary as subsection (1) of section 149 already implicitly makes provision for a lesser period to be imposed on a child and I do not propose to accept the amendment.

On the issue of adding the words, "The Court shall have regard to the age, level of maturity, best interests of the child and the principle of imprisonment as a last resort in determining the nature of any penalty imposed.”, these principles are already inherent in the Children Act 2001. Part 9 of the Act provides for the powers of courts vis-à-vis child offenders. In particular, section 96 provides for the principles relating to the exercise of criminal proceedings over children. Section 96(3) provides that a court may take into consideration as mitigating factors a child's age and level of maturity in determining the nature of any penalty imposed unless the penalty is fixed by law. Section 96(5) provides that when dealing with a child charged with an offence, a court shall have due regard to the child's best interests, the interests of the victim of the offence and the protection of society. This reflects that where criminal proceedings are at issue, the best interests of the child must be balanced with the interests of the society and the victim. Section 96(2) of the principal Act provides that a period of detention should be imposed only as a measure of last resort, which many Senators have argued, and I fully agree with that position.

Amendment No. 23 proposes to insert the word "any" into the substituted section 149(2) as provided for in section 8. Section 143(1) of the principal Act provides that the court shall not make an order imposing a period of detention on a child unless it is satisfied that detention is the only suitable way of dealing with the child and that a place in a children detention school is available for him or her. Section 143(2) provides that where an order is made under subsection (1) the court making the order shall give its reasons for doing so in open court. Section 143(2) is not limited to instances where the period of detention to be imposed by the court exceeds three years; it applies in all circumstances where a period of detention is imposed on a child. It should be noted that these matters, which fall under Part 9 of the Children Act, are matters within the remit of the Minister for Justice and Equality. We continue to have close co-operation on criminal justice matters relating to children. As the amendments proposed are already clearly provided for in the Act, I do not propose to accept them.

Amendment, by leave, withdrawn.

I move amendment No. 19:

In page 8, between lines 7 and 8, to insert the following:

“(c) in subsection (8), by inserting “best” between “where it is in the” and “interests of the child”,”.

I would like to agree this amendment, but subject to the advice of the Office of the Attorney General, if that is acceptable.

Amendment, by leave, withdrawn.
Section 5, as amended, agreed to.
SECTION 6
Government amendment No. 20:
In page 8, line 20, to delete “in custody”.
Amendment agreed to.
Government amendment No. 21:
In page 8, lines 23 and 24, to delete “in custody”.
Amendment agreed to.
Government amendment No. 22:
In page 8, line 39, to delete “in custody”.
Amendment agreed to.
Section 6, as amended, agreed to.
Section 7 agreed to.
Amendment No. 23 not moved.
Section 8 agreed to.
Section 9 agreed to.
SECTION 10
Government amendment No. 24:
In page 11, line 19, to delete “shall,” and substitute “shall, or in the case of a cessation of engagement referred to in paragraph (a)(ii), may,”.

This amendment is to section 155(6) of the Children Act 2001. The amendment proposes to give discretion to a director not to transfer a child who has ceased to engage in a course of education or training where the determination had been made by the director that the person might continue to be detained in a child detention school past their 18th birthday on the basis that they were engaged in a course of education or training. Section 155(5) provides that if a person is engaged in education or training or if the period of detention remaining is six months or less, the director may determine that the person can continue to be detained in the child detention school for a period not exceeding six months from the date of their 18th birthday where there is still a period of detention remaining in respect of that person after their 18th birthday.

The purpose of the amendment is to enable the director to explore the option of a different course of education or training where a person has ceased to engage in a particular course of education or training. The amendment proposes to insert a reference to "may transfer" instead of "shall transfer" to allow the director to exercise his or her discretion where the question of a person continuing to be detained relates to their engagement in education or training. This is in the best interest of the child.

Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
SECTION 12
Government amendment No. 25:
In page 13, line 30, to delete “in custody”.
Amendment agreed to.
Government amendment No. 26:
In page 13, line 36, to delete “any”.

This amendment is proposed in order to correct an error in the first print of the Bill. It will delete the reference to "any" in subsection (1)(k). This is a drafting amendment which will ensure consistency of references to parts thereof throughout section 12 of the Bill.

Amendment agreed to.

Amendments Nos. 27 to 34, inclusive, and amendments Nos. 39 to 46, inclusive, are related and will be discussed together.

Government amendment No. 27:
In page 14, line 12, to delete “on” and substitute “immediately before”.

Amendments Nos. 27 to 34, inclusive, are to section 12, while amendments Nos. 39 to 46, inclusive, are to section 13. These amendments comprise a number of technical drafting amendments intended to enhance clarity and precision. The amendments propose to substitute references to "on" the date of closure with "immediately before" the date of closure, to substitute references to "on" the date of closure with "by" the date of closure, and to substitute references to "before" the date of closure with "by" the date of closure. They are purely technical.

Amendment agreed to.
Government amendment No. 28:
In page 14, line 13, to delete “before” and substitute “by”.
Amendment agreed to.
Government amendment No. 29:
In page 14, line 24, to delete “on” and substitute “immediately before”.
Amendment agreed to.
Government amendment No. 30:
In page 14, line 25, to delete “before” and substitute “by”.
Amendment agreed to.
Government amendment No. 31:
In page 14, line 32, to delete “on” and substitute “immediately before”.
Amendment agreed to.
Government amendment No. 32:
In page 14, line 33, to delete “before” and substitute “by”.
Amendment agreed to.
Government amendment No. 33:
In page 15, line 21, to delete “on” and substitute “immediately before”.
Amendment agreed to.
Government amendment No. 34:
In page 15, line 22, to delete “before” and substitute “by”.
Amendment agreed to.
Government amendment No. 35:
In page 16, line 8, to delete “in custody”.
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13
Government amendment No. 36:
In page 17, line 5, to delete “in custody”.
Amendment agreed to.
Government amendment No. 37:
In page 17, line 23, to delete “in custody”.
Amendment agreed to.
Government amendment No. 38:
In page 18, line 1, to delete “in custody”.
Amendment agreed to.
Government amendment No. 39:
In page 18, line 10, to delete “on” and substitute “immediately before”.
Amendment agreed to.
Government amendment No. 40:
In page 18, line 11, to delete “before” and substitute “by”.
Amendment agreed to.
Government amendment No. 41:
In page 18, line 18, to delete “on” and substitute “immediately before”.
Amendment agreed to.
Government amendment No. 42:
In page 18, line 19, to delete “before” and substitute “by”.
Amendment agreed to.
Government amendment No. 43:
In page 18, line 24, to delete “on” and substitute “immediately before”.
Amendment agreed to.
Government amendment No. 44:
In page 18, line 25, to delete “before” and substitute “by”.
Amendment agreed to.
Government amendment No. 45:
In page 19, line 4, to delete “on” and substitute “immediately before”.
Amendment agreed to.
Government amendment No. 46:
In page 19, line 5, to delete “before” and substitute “by”.
Amendment agreed to.
Section 13, as amended, agreed to.
Sections 14 to 16, inclusive, agreed to.
SECTION 17

I move amendment No. 47:

In page 24, between lines 19 and 20, to insert the following:

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

This amendment has been put forward by my colleague Senator Terry Leyden and my Sinn Féin colleagues. It relates to providing the child with an opportunity to explain his or her side of the story when any disciplinary hearing is being held by the director referred to in the Bill.

Section 17 sets out that where a director decides to hold an inquiry, the procedure relating to the inquiry may be prescribed by the Minister. Therefore, there is scope for the Minister to set out the procedure, objectives and method of inquiry. What we are looking for here is the inclusion in the section of the legal basis for the child to respond to any allegations - that this would be a procedural matter written into the legislation. In any public hearing where accusations are being levelled, whether in a court of law or a tribunal or other formal setting, an opportunity is always given to the accused to provide their side of the story. That is what we are looking for here, and I hope the Minister will accept the amendment.

Section 17 provides for an inquiry to be held by a director into an alleged disciplinary breach by a child.

The provision allows for the discretion of the director in deciding whether to hold an inquiry into a disciplinary breach. Where the director decides to do so, he or she shall inform the child of the alleged breach and the date and time of the inquiry.

Subsection (3) of section 201, which is being inserted into the principal Act, provides for the procedure relating to an inquiry to be prescribed by the Minister. The procedure prescribed would include matters relating to ensuring fair procedures, such as providing the child with an opportunity to be heard and to respond to any allegation of a disciplinary breach. It is intended that the operational and practical matters relating to such an inquiry will be prescribed and will include matters relating to fair procedures for the child.

The issue raised in the amendment will be comprehensively addressed in regulations to be adopted on foot of the enactment of section 17 of the Bill. Therefore, I do not propose to accept the amendment.

The Minister's comments are very reassuring. The penalty that is at stake here is the deprivation of liberty by loss of remission of up to 14 days. That is quite significant. It is very important that the child's voice is heard, in accordance with the UN Convention on the Rights of the Child, that there be due process, and that the principles of natural justice are applied. I urge the Minister to ensure, in making the regulations, that the information given to the child is in language appropriate to his or her age and understanding. That should be explicitly stated in the regulations. Sometimes bureaucracy steps in and a child might end up getting a very formal letter. It should be clearly stipulated that any communication must be in language that is appropriate to the child's age and understanding.

I agree with Senator Jillian van Turnhout that the Minister's comments are reassuring. The child's story must be heard. I accept and welcome the Minister's commitment to the House that this will be dealt with through regulation. Indeed, it may be more appropriate to deal with it in that way. It is important to underpin the rights and voice of the child in any dialogue or inquiry situation. I agree with Senator Jillian van Turnhout that the language used must be appropriate to the age and educational attainment of the child.

Does Senator Brian Ó Domhnaill propose to withdraw the amendment?

If I may, I would like to offer further assurance to Senators. I take their point regarding the language used and undertake to ensure that is covered. In addition, the opportunity to be heard both orally and in writing will be specified in the regulations. I have asked my officials to ensure there is a requirement that the language used is appropriate to the child's age, maturity and educational status.

Amendment, by leave, withdrawn.
Government amendment No. 48:
In page 24, between lines 28 and 29, to insert the following:
"(2) The amendments to section 201 of the Principal Act effected by this section shall not apply to breaches or alleged breaches of the rules of a children detention school committed or alleged to have been committed before the commencement of this section and section 201 of the Principal Act shall apply to such breaches or alleged breaches as if subsection (1) had not been enacted.".

This is a proposal to amend section 201 of the principal Act to insert a transitional provision. This provision will stipulate that the new system of discipline providing for an inquiry by the director into an alleged breach of discipline shall not apply to breaches of discipline committed or alleged to have been committed before the introduction of the new system.

Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18

I move amendment No. 49:

In page 25, between lines 10 and 11, to insert the following:

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

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

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

(b) deprivation of food or drink,

(c) treatment that could reasonably be expected to be detrimental to physical, psychological or emotional wellbeing, or

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

Subsection 201(2) of the Children Act 2001 includes an important prohibition on certain forms of discipline, including corporal punishment or any form of physical violence, deprivation of food or drink, treatment that could reasonably be expected to be detrimental to physical, psychological or emotional well-being, and treatment that is cruel, inhumane or degrading. The most recent Health Information and Quality Authority report, published in February 2015, stated in regard to Oberstown: "The management of challenging behaviour was not consistently in line with best practice and single separation was used extensively and frequently for long periods of time." The report gave an example of a child who was locked in a room for 83 hours and 45 minutes over a four-day period, including sleeping hours.

Given recent concerns expressed as to the management of challenging behaviour, particularly the use of single separation, it is unclear as to why this important provision, which prohibits certain treatment, has not been retained as part of the new section 201 of the 2001 Act. Section 17 of the Bill substitutes an alternative wording for section 201. While the permissible sanctions for breach of discipline continue to be set out in section 201A, as inserted by section 18 of the Bill, it would be prudent also to retain the express prohibitions on certain disciplinary sanctions in the legislation. Such matters are expressly prohibited under section 13 of the Prisons Act 2007, which relates to adults. We therefore submit that the original section 201 of the principal Act should be retained, with the addition of the word "proportionate".

I support the points made by Senator David Cullinane in setting out the rationale for this amendment. I look forward to the Minister's response.

In the adult prison system, the issue of remission of sentences is linked to the system of formal discipline in place, given that remission is permitted on the basis of good behaviour. Accordingly, the introduction of a system of remission in children detention schools requires a more codified set of provisions on discipline in the schools covered by the Children Act 2001. Under the new system, the director will have discretion to inquire into an alleged breach of discipline by a child. A new section 201 to replace the existing section is proposed in the Bill. This section and the following sections, 201A, 201B, 201C and 201D, which are inserted by section 18, provide for the new disciplinary regime which is being introduced to support the introduction of a system of remission of detention in children detention schools.

Section 201A(1) outlines the sanctions that will be permitted for a breach of discipline, namely, caution, reprimand, prohibition on certain recreational or other activities, forfeiture of pocket money, and forfeiture of not more than 14 days remission. I am advised that from a legal perspective, listing the sanctions that are prohibited, as in the current section 201(2) of the 2001 Act and as per the Senator's proposed amendment, could give rise to the view that any other undesirable sanction not on this list could be used in a children detention school. This would be an unintended consequence which is clearly to be avoided, as Senators will agree.

While disciplinary provisions are included in the Bill, policy in this area still must have regard to the fact that children detention schools are not prisons and it is necessary to preserve the ethos of the child-focused model of detention. For this reason, a set of provisions governing the concept of good order will operate alongside a more codified system of discipline in these schools. Good order will relate to all the steps that may be undertaken by staff or management to reduce the escalation of - and, where possible, stop - instances of inappropriate behaviour by children in detention. It is preventative in nature in that the ultimate aim is to interrupt a pattern of inappropriate behaviour and prevent it from evolving into an actual breach of discipline which would result in the initiation of formal disciplinary procedures. In this sense, it relates to the concept of early intervention. It also includes the concept of promoting the learning by children of appropriate behaviour and the prevention through learning of future inappropriate behaviour. The consequences of a breach of good order by a child would include prompts from staff, informal warning, having a conversation with the child, and verbally suggesting to or instructing the child, for example, to leave a room or a place such as a sports pitch or go to a place such as the child's own room. This may be contrasted with the concept of discipline, which is more formal and will only be initiated at the discretion of a director of a children detention school.

The system of good order will be outlined in rules to be adopted by the board of management under section 179 of the Children Act 2001 and regulations to be adopted by the Minister under section 221 of the Act. The director of a children detention school will have the discretion to initiate the proposed system of discipline in the event of repeated breach of good order rule by a child which escalates to a disciplinary matter. The proposed system of good order rules will be modelled closely on the care policies currently in place in children detention schools.

Taking all matters into consideration, I note the purpose of the Senator's amendment and intend to consider the matter further. I will consult the Attorney General's Office on the matter.

I thank the Minister. I am sorry for being delayed. I was at a Border, Midland and Western Regional Assembly reception in Ballaghaderreen. The Taoiseach was there as was the Minister for Public Expenditure and Reform, Deputy Brendan Howlin. I thank my colleague, Senator Brian Ó Domhnaill, for standing in for me.

I do not see that as part of the amendment.

I thank the Minister for his response on the issue.

Is amendment No. 49 being pressed?

In light of the Minister's comments, I will not press it.

I am happy with that.

Amendment, by leave, withdrawn.

Amendments Nos. 50 to 52, inclusive, are related and may be discussed together. Amendment No. 52 is a physical alternative to amendment No. 51.

Government amendment No. 50:
In page 26, to delete lines 4 to 10 and substitute the following:
“201B. (1) A child who is found by a Director to have committed a disciplinary breach under section 201 (amended by section 17 of the Children (Amendment) Act 2015) may, not later than 7 days after the date the child was informed of the finding and the imposition of any sanction, send to the Director, for”.

Amendment No. 50 proposes an amendment to section 201B to take account of changes made to section 201A(1) before publication of the Bill. Prior to publication, section 201A(1) of the 2001 Act was revised to state to "the director may impose" instead of "the director shall impose", clearly offering more discretion. The existing wording of section 201B requiring a sanction to have been imposed for a child to petition the Minister is no longer appropriate. It is proposed, therefore, to amend the wording of section 201B(1) to make it consistent with a discretion of the director rather than an obligation of the director to impose a sanction in section 201A.

Amendment No. 51 proposes an amendment to section 201B(2). In the published Bill, the existing provision refers to the Minister affirming, modifying, suspending or revoking the sanction only. I believe it should more appropriately refer to the actions that may be taken by the Minister in respect of the finding and sanction, as either of these may be the subject of a petition. The amendments proposed to section 201B(2) will provide that where the finding of the director is a subject of the petition, the Minister may affirm, modify or revoke the sanction. Where the sanction imposed by the director is the subject of the petition, the Minister may affirm, modify, suspend or revoke the sanction. The amendment to section 201B(2) would achieve what is proposed by amendment No. 52, that is, to insert "and/or finding" after "sanction". I do not propose, therefore, to accept amendment No. 52.

I am disappointed to hear the Minister will not accept amendment No. 52. I will set out the rationale for it. I have listened to what the Minister has had to say. The new section 201B sets out a right of petition by the child to the Minister against either the finding or sanction or both. It is unclear why this petition is to the Minister rather than a child-friendly independent tribunal, for example, the Ombudsman for Children. While this is in line with the Prison Act 2007 in respect of adults, it does not take into account the potential vulnerability of children and the challenges that a formal petition process might pose for them. Given the remit of the Ombudsman for Children in respect of complaints of children in detention it seems that a right of petition to the Ombudsman for Children may be more appropriate than a right of petition to the Minister. Furthermore, it allows for the Minister to obtain additional material from the director but does not provide for any additional interaction with the child. While it allows the Minister to affirm, modify, suspend or revoke the sanction, it does not seem to allow the Minister to affirm, modify or suspend the finding. We suggest that the provision be amended by the addition of "and/or finding" in the second last line of the new section 201B.

I support Senator David Cullinane. Consideration should be given to the remit of the Ombudsman for Children in respect of complaints for children in detention and I call on the Minister to give that consideration. It is a reasonable proposal. Moreover, I call on the Minister to give consideration to the fact that while detention schools are inspected annually by HIQA, the standards and criteria for children in detention schools have not been revised or updated since 2004. They were adopted in 2008. Given all that we are doing here, I recommend that the standards should be reviewed to ensure they adhere to models of best practice.

Certainly, I see no issue with the last point and I will discuss it with departmental officials.

In respect of the reference to the Ombudsman for Children, the Ombudsman is not mentioned in the Bill.

Senator David Cullinane raised a concern that the finding could be revoked as well. The advice I have is that this measure is not necessary, but perhaps I will discuss it further with the Department. I gather the Senator's contention is that not alone do we want to revoke the sanction, but also the finding because we do not believe the finding is accurate and correct. This appears to me, on the face of it, to be an issue of natural justice and I would have thought it should be included. I will discuss it with the Department and withhold our position on that issue.

Amendment agreed to.
Government amendment No. 51:
In page 26, to delete lines 17 to 19 and substitute the following:
“petition—
(a) where the finding is a subject of the petition, affirm, modify or revoke the finding, and
(b) where the sanction is a subject of the petition, affirm, modify, suspend (subject to any terms or conditions as he or she may specify), or revoke the sanction,
and shall cause the child concerned to be notified accordingly.”.
Amendment agreed to.
Amendment No. 52 not moved.
Section 18, as amended, agreed to.
Sections 19 to 21, inclusive, agreed to.
SECTION 22
Government amendment No. 53:
In page 31, line 32, to delete “shall immediately” and substitute “shall, as soon as may be,”.

This amendment proposes an amendment to subsection 4C of section 215 of the principal Act. The amendment proposes to substitute "as soon as may be" for "immediately". The effect of the amendment is to provide that when a person who has escaped as a child has returned to a children's detention school and is, at that stage, over the age of 18 years and six months, the director shall, as soon as may be, transfer the person to a place of detention or a prison.

The amendment is proposed for practical reasons as it may not be possible for the director to immediately transfer the person to prison or a place of detention. Where a transfer is warranted the director shall, as soon as may be, effect the transfer of the person.

Amendment agreed to.
Section 22, as amended, agreed to.
Section 23 agreed to.
SECTION 24
Government amendment No. 54:
In page 32, line 8, to delete “in custody”.
Amendment agreed to.
Section 24, as amended, agreed to.
SECTION 25
Government amendment No. 55:
In page 32, lines 23 to 27, to delete all words from and including “breaches,” on line 23, down to and including “and” on line 27 and substitute “breaches and”.

This amendment proposes to delete text referring to breaches of discipline inside or outside a children's detention school or an approved absence. The reference to disciplinary breaches will capture the various types of disciplinary breaches and the Department has been advised that there is no need to list specific types of breaches which could have a limiting effect rather than an inclusive effect.

Amendment agreed to.
Section 25, as amended, agreed to.
Sections 26 to 29, inclusive, agreed to.
SECTION 30

Amendments Nos. 56 to 66, inclusive, are related and may be discussed together. Amendment No. 59 is consequential on amendment No. 60. Amendments Nos. 65 and 66 are consequential on amendment No. 64.

Government amendment No. 56:
In page 33, to delete lines 19 and 20 and substitute the following:
“ ‘board of management’ in relation to a remand centre that is not situated in a children detention school, means the board of management of the remand centre appointed under section 88(9) of the Act of 2001;”.

These are proposed amendments to section 30, which, as published, amends section 42 of the Criminal Justice Act 1999 to provide for the arrest by the Garda of a child in detention on a detention order or on remand in a children's detention school for questioning in respect of an offence or offences other than those for which he or she is in detention or on remand.

The amendments proposed would bring within the category of persons who may be arrested for questioning, in connection with offences other than those for which they are on remand or in detention, children currently detained or remanded in St. Patrick's Institution or a place of detention. The amendments proposed include a number of amendments to definitions in section 30 and consequential technical amendments required to bring this cohort of persons within the application of section 42 of the Criminal Justice Act 1999.

The effect of the amendment is to bring the cohort of children currently on remand or detained in adult facilities within the remit of section 30 of the Criminal Justice Act 1999 for a limited period pending the accommodation in a children detention school of all children remanded or detained.

Amendment agreed to.
Government amendment No. 57:
In page 33, to delete lines 21 and 22 and substitute the following:
“ ‘child detainee’ means a person who—
(a) is detained in a children detention school, or on remand in a remand centre, pursuant to the Act of 2001, or
(b) is under the age of 18 years and is detained or remanded in a place of detention;”.
Amendment agreed to.
Government amendment No. 58:
In page 33, between lines 26 and 27, to insert the following:
“ ‘place of detention’ means—
(a) Saint Patrick’s Institution, or
(b) a place of detention provided under section 2 of the Prisons Act 1970;”.
Amendment agreed to.
Government amendment No. 59:
In page 33, to delete line 29.
Amendment agreed to.
Government amendment No. 60:
In page 33, between lines 29 and 30, to insert the following:
“(ii) in the definition of “prison”, by the substitution of “place of custody, other than a place of detention in respect of the detention or remand of child detainees therein,” for “place of custody”, and”.
Amendment agreed to.
Government amendment No. 61:
In page 33, lines 33 and 34, to delete “or detained or remanded” and substitute “detained or remanded, as the case may be”.
Amendment agreed to.
Government amendment No. 62:
In page 34, lines 2 and 3, to delete “in a children detention school or remand in a remand centre under the Act of 2001” and substitute “or remand, as the case may be,”.
Amendment agreed to.
Government amendment No. 63:
In page 34, line 9, to delete “subsection (3)(a)” and substitute “subsection (3)(a),”.
Amendment agreed to.
Government amendment No. 64:
In page 34, between lines 15 and 16, to insert the following:
“(b) the governor of the place of detention where the child detainee was detained or remanded, as the case may be, at the time of the arrest,”.
Amendment agreed to.
Government amendment No. 65:
In page 34, line 16, to delete “(b) the Director” and substitute “(c) the Director”.
Amendment agreed to.
Government amendment No. 66:
In page 34, line 23, to delete “(c) the board” and substitute “(d) the board”.
Amendment agreed to.
Section 30, as amended, agreed to.
SECTION 31

Amendments Nos. 67 and 68 are related and may be discussed together.

Government amendment No. 67:
In page 35, line 9, to delete “on” and substitute “immediately before”.

These are technical drafting amendments. The Prevention of Crimes Act 1908, the Criminal Justice Administration Act 1914 and the Criminal Justice Act 1960 are being amended to revise the references to the age of persons who may be detained in St. Patrick's Institution to 18 years. Amendments No. 67 and 68 to section 31 of the Bill propose to substitute references to "on" with "immediately before" the date of commencement of provisions amending. They will amend Prevention of Crimes Act 1908, the Criminal Justice Administration Act 1914 and the Criminal Justice Act 1960. The amendments also propose to substitute references to "before" the date of commencement with "by" that date. Again, the objective of these amendments is to enhance clarity and precision.

Amendment agreed to.
Government amendment No. 68:
In page 35, line 10, to delete “before” and substitute “by”.
Amendment agreed to.
Government amendment No. 69:
In page 35, lines 20 and 21, to delete “remanded in custody” and substitute “remanded”.
Amendment agreed to.
Section 31, as amended, agreed to.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

On Tuesday, 9 June 2015.

Could the Minister take Report Stage now or would he prefer to wait?

I am sorry, Senator, but the order of the House was that Committee Stage only would be taken today.

Much as I would like to do that, I have undertaken to examine a number of issues and will do so.

Is it agreed that Report Stage be taken on 9 June? Agreed.

Report Stage ordered for Tuesday, 9 June 2015.

When is it proposed to sit again?

On Tuesday, 9 June 2015.

The Seanad adjourned at 4.05 p.m. until 2.30 p.m. on Tuesday, 9 June 2015.