I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Hanafin, and her officials. We are resuming on amendment No. 78 to section 149.
Vol. 2 No. 7
I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Hanafin, and her officials. We are resuming on amendment No. 78 to section 149.
I move amendment No. 78:
In page 93, subsection (1), line 2, to delete "shall not exceed 3 years" and substitute "shall not be less than 3 months or more than 3 years".
Section 149 currently provides that the maximum period of detention in a children detention school should be three years with no minimum. The amendment proposes that there will be a minimum period of detention in a children detention school of three months. The Children Bill, 1908, provided for a minimum period of three years and a maximum of five years for child offenders referred to reformatory schools by the courts. In 1941, the minimum and maximum periods were reduced to two years and four years, respectively.
Following consultations with the Department of Education and Science, the 1996 Bill proposed that the maximum be further reduced to three years with no specified minimum. Following the Second Stage debate, the Department again discussed with the Department of Education and Science the question of reducing the maximum and whether a minimum period of detention should be introduced. The schools were consulted and the word that came back was that, from an operational point of view, the three years maximum should be retained, but that a minimum should be introduced. On balance, three months was regarded as an appropriate minimum.
The schools have told us that while three years would be neither necessary nor desirable in most cases, occasionally they would need up to three years in order to prepare a young offender for reintegration into the community. That being the view of the experts, neither the Minister for Education and Science nor I would be prepared to reduce the maximum below three years. It is not a timescale that may be used very often by the courts, but it will provide a safety valve for the occasional young offender.
Deputies may wish to know how a court of summary jurisdiction could refer a child to a children detention school for up to three years when the normal maximum sentence such a court can impose is 12 months. The answer lies in the fact that the detention is for educational purposes and not punitive in nature, even though, to a greater or lesser extent, the detention is secure. In the past the courts have accepted the educational ethos of special schools as a basis for long periods of detention. The continuing educational ethos of the schools is well catered for in the Bill, in particular section 158 which establishes the principal object of children detention schools. Under the Bill the educational ethos will be reinforced rather than watered down.
Neither the 1996 nor the 1999 Bill placed a minimum amount of time a court could refer a child to a children detention school, thus a child could be sent to a school for as little as two or three weeks. Such a short sentence could only be described as punitive in nature and would give the schools no opportunity to implement a meaningful education programme for the child. If that was to happen, it would concern us for three reasons. First, if short sentences became the norm, a higher court might regard the schools as punitive institutions. That would place a major doubt on the constitutionality of the longer referrals which are an important feature of the work of schools. Second, a large number of referrals on short, sharp sentences would disrupt the operations of the schools to the point where they would be unable to fulfil their primary educationally focused role. Third, I do not regard very short sentences as appropriate for children. They would not allow rehabilitative measures to be put in place.
The schools were asked what minimum period would enable them to provide an educational course for every child offender referred to them by the courts. The response was three months, or approximately the length of one school term. The amendment, therefore, proposes to put in place a minimum period of detention in children detention schools and that period is three months as suggested by the schools. Clearly, the amendment is important and raises many difficult policy, and even constitutional, points, but for the reasons I have explained I commend it to the select committee to introduce a minimum detention period of three months in children detentions schools.
Is the Minister of State satisfied that a situation would not arise where the minimum period of three months might be too long? I would be concerned that a situation could arise where it might not work out. Perhaps there should not be a minimum period. I would like some reassurance from the Minister of State in relation to her consultations in that regard.
On the basis that detention would only be used as a very last resort - obviously, much would have been gone through before a child would be detained - and the fact that it would be for a school term for educational rehabilitative purposes, we are satisfied that a three month minimum period is appropriate.
I move amendment No. 79:
In page 93, lines 22 and 23, to delete subsection (5).
This amendment concerns probation and welfare officers. It seems wrong that the probation and welfare service should be prosecutor which, because of its role, it would not be appropriate for it to be. In any case, would it be able to prosecute as a common informer without having specific statutory authorisation as probation and welfare officers?
Section 149 provides for the situation where a child attains 18 years of age before completing his or her period of detention in a children detention school. In many cases it might not be in the best interests of the other child detainees for the older child to be kept in detention with them. Also, if the child is being detained to a children detention school, it would not be possible to transfer the child to, say, a prison unless he or she had been convicted on indictment. In such circumstances, section 149 allows for the child to be supervised in the community by a probation and welfare officer. Such supervision may be subject to conditions. Failure to comply with any condition would be an offence which subsection (5) allows the probation and welfare officer to prosecute. The amendment seeks to delete subsection (5).
In drafting this provision we had two precedents on which to call. The first, under section 6 of the Probation of Offenders Act, 1907, would have allowed the court to issue a warrant for the offender's apprehension or, alternatively, to issue a summons to the offender on his or her sureties, if any, to attend court at a specified time. On the other hand, the Criminal Justice (Community Service) Act, 1983, provides for prosecution by a probation and welfare officer. An example is section 7 of the Act concerning a failure to comply with community service. Subsection (5) allows for an offence of such failure to be prosecuted by a relevant officer which in section 1 is defined as a probation and welfare officer. This latter provision has proved very efficient in practice and, accordingly, it was the more appropriate precedent to follow. While the probation and welfare officer is the person with the relevant information, the section leaves it open for others to prosecute. Accordingly, in the interests of efficiency and convenience, and following a precedent established in the 1983 Act, I do not propose to accept the amendment.
I move amendment No. 80:
In page 93, subsection (1), line 25, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 81:
In page 93, subsection (4)(a), line 35, to delete “place of detention” and substitute “children detention centre”.
I move amendment No. 82:
In page 93, subsection (4)(b), lines 38 and 39, to delete “place of detention shall not be detained in that place” and substitute “children detention centre shall not be detained in that centre”.
I move amendment No. 83:
In page 94, subsection (2), line 2, to delete "place of detention" and substitute "children detention centre".
We now come to amendment No. 84. Amendment No. 85 is consequential and both may be discussed together.
I move amendment No. 84:
In page 94, lines 3 to 5, to delete subsection (3) and substitute the following:
"(3) Subject to subsection (4), half of the period for which a detention and supervision order is in force shall be spent by the child in detention in a children detention centre and half under supervision in the community.
(4) Where the child is released from detention on earning remission of sentence by industry or good conduct or on being given temporary release under section 2 or 3 of the Act of 1960, supervision of the child in the community under the order shall be deemed to commence on the child's release.".
There are two reasons for these amendments to section 151. First, in the Bill, as currently drafted, the length of a detention and supervision order can be four, eight or 12 months, of which half would be in detention and half under supervision in the community. I propose to add flexibility to this provision by omitting the reference to specific periods in order that the courts will be able to impose detention and supervision for whatever period they deem appropriate. These could be shorter, the same or longer where the child is before a court on indictment. The basic purpose of the provision of equal periods of detention and supervision is being retained. The intent behind the provision is that young persons on release from children detention centres would have supports and controls in the community that would be of assistance in the reintegration process.
The second reason for the amendments is to clarify what happens when a young person does not complete the period of detention imposed, for example, where he or she has earned remission for good behaviour. In such circumstances, the period of supervision in the community remains unchanged. If a young person is sentenced to four months detention and four months supervision and is released from detention after three months, the four months supervision will still apply.
The detention and supervision order only applies to 16 and 17 year olds detained in children detention centres. Such offenders can receive punitive sentences from the courts, often of short duration. Younger offenders are subject to educational referrals by the courts to children detention schools. The detention and supervision order could not, therefore, be applied to the younger age group without seriously undermining the educational ethos of the schools.
I move amendment No. 85:
In page 94, lines 21 to 25, to delete subsection (8).
I move amendment No. 86:
In page 94, subsection (1), line 27, to delete "place of detention to another place of detention" and substitute "children detention centre to another such centre".
I move amendment No. 87:
In page 94, subsection (3), line 33, to delete "remand institution" and substitute "remand centre".
I move amendment No. 88:
In page 94, subsection (3), lines 33 and 34, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 89:
In page 94, subsection (4), line 36, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 90:
In page 94, between lines 36 and 37, to insert the following subsections:
"(5) A child may be transferred from a children detention centre to a place of detention provided under section 2 of the Act of 1970 or prison only on attaining 18 years of age.
(6) A child aged 16 or 17 years detained in a place of detention provided under section 2 of the Act of 1970 or prison may be transferred to a children detention centre.".
Children detention centres are now legal entities established under this legislation. It is important to put beyond doubt the power to transfer into and out of these centres. Otherwise the possibility could exist of difficulties in that respect in the future. The amendment will ensure that when a detained child reaches 18 years of age, that is, when he or she is no longer a child, the power will exist to transfer that person to a place of detention or to prison. If that power does not exist or if there is any doubt about it, the result could be a mix of detained children and adults in the centres, something this legislation proposes to end.
This amendment also provides for the transfer of 16 year olds and 17 year olds from detention centres. It is necessary that when a designation is made under section 150 it will be possible to transfer those 16 year olds and 17 year olds already in detention from their existing places to the newly designated place.
This amendment provides for the smooth operation of the transfer system between children in detention centres and penal institutions in a way that is fully compatible with the philosophy on detention in the Bill. I commend it to the committee.
I move amendment No. 91:
In page 94, subsection (1), line 38, to delete "places of detention designated under section 150” and substitute “children detention centres”.
I move amendment No. 92:
In page 94, subsection (2), line 40, to delete "places of detention" and substitute "children detention centres".
I move amendment No. 93:
In page 94, subsection (2)(a), line 43, to delete “places” and substitute “centres”.
Amendment No. 94 is in the name of Deputy Shortall. This amendment was addressed earlier by the Minister, Deputy O'Donoghue, with the Deputy. He said that while he could accept amendment No. 94, in principle, he was proposing amendment No. 95, which deals with the same point.
Similarly, on amendment No. 107, he covered many of the points made by Deputy Shortall in amendment No. 108 and said he would also accept Deputy Shortall's amendments Nos. 114 and 128. All those amendments relate to the Irish language. Is it acceptable that amendment No. 94 has been discussed with amendment No. 5?
Yes. The Minister appears to have responded to the concerns of our party. I accept his amendment. No. 95 deals with the same point.
I move amendment No. 95:
In page 95, subsection (2), between lines 4 and 5, to insert the following:
"(c) the due recognition of the personal, cultural and linguistic identity of each of them,”.
I move amendment No. 96:
In page 95, subsection (2)(d), line 7, to delete “places” and substitute “centres”.
Amendment No. 98 is related to amendment No. 97 and they may be taken together by agreement.
I move amendment No. 97:
In page 95, between lines 7 and 8, to insert the following subsection:
"(3) (a) The Minister may appoint a person who is a member of a visiting panel to a children detention school to be a member of a visiting panel to a children detention centre.
(b) An appointment under paragraph (a) shall be with the agreement of the Minister for Education and Science and the member so appointed.”.
These two amendments will further emphasise the intention that children detention centres will develop regimes more closely aligned to children detention schools than to prisons.
Section 190 gives the Minister for Education and Science power to appoint a visiting panel to the schools.
Section 153 gives the Minister for Justice, Equality and Law Reform power to make rules governing the operation of places of detention or children detention centres, as they will now be called, and such rules may make provision for visiting panels to the centres.
The first of the amendments in this group will allow for an overlap on the membership of the visiting panel appointed under section 190 and the panel provided under section 153. It would not be practical to appoint one panel from both schools and centres because of different ministerial powers and responsibilities, but this amendment will provide the necessary link between the panel that will allow for a co-ordinated approach to their duties. It will also allow for continuation where young persons detained in schools re-offend and are later detained in a centre.
The second amendment proposes the deletion of the reference to visiting committees. This reference is not necessary as the Minister will have all the powers needed to make comprehensive rules governing the establishment, constitution, duties and powers of visiting panels for children detention centres.
I commend to the committee amendments Nos. 97 and 98 concerning visiting panels.
I have one question on amendment No. 98. I wish to clarify the deletion of the prisons visiting committees Act, 1925. I want clarification to ensure that does not reduce any of the powers of supervision from an outside body, whether it be described as a visiting committee or the visiting panel.
The power is not being removed completely, it is just being given to the panels and they will have that power.
It is a similar function?
I move amendment No. 98:
In page 95, subsection (3), lines 8 and 9, to delete "the Prisons (Visiting Committees) Act, 1925,".
I move amendment No. 99:
In page 95, subsection (3), line 14, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 100:
In page 95, subsection (3), line 15, to delete "place of detention" and substitute "centre".
I move amendment No. 101:
In page 95, line 18, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 102:
In page 95, subsection (1), line 23, before "impose" to insert "by order".
This is a technical amendment to ensure that where a court imposes a period of detention in excess of three years it does so by order. The words "by order" were inadvertently omitted from the Bill, as published. The wording of the remainder of the section as well as making sense of the provision clearly indicates that the words "by order" should have been included. I commend this technical amendment.
I move amendment No. 103:
In page 95, subsection (3), line 36, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 104:
In page 95, subsection (4), line 40, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 105:
In page 95, between lines 41 and 42, to insert the following subsection:
"(5) Where an application under subsection (3) is in respect of a child who has attained 18 years of age or where for any other reason such a child is transferred from a children detention school, the transfer shall be to a place of detention provided under section 2 of the Act of 1970 or to prison.”.
This amendment will ensure that where a child detained in a children detention school who has attained 18 years of age is transferred because his or her period of detention has not expired, that transfer will be to a place of detention or prison.
This amendment is necessary so that child detainees will not be detained with older detainees. The Bill sets out clearly the age groups that can be detained in each type of place of custody provided for in the Bill.
Children detention schools will cater for 12 year old to 16 year old offenders, children detention centres for 16 year olds and 17 year olds and the existing places of detention or prison for the 18 year old plus age group. While that is straightforward, I have also had to cater for the situation where a young person has been convicted of a very serious offence and has received a sentence that transcends any one type of place of custody.
For example a 15 year old might receive a sentence of, say, seven years. Being 15 years of age, the young person will be referred to a children detention school. When the young person reaches 16 years of age, the director of the school concerned will be entitled to apply to the court to have the child transferred to a children detention centre. Transfer is not mandatory at that age. The young person may be responding particularly well to the educational and other programmes put in place for him or her in the school and he or she may not be having a bad or a distracting influence on the other detainees. In those circumstances, the director need not apply to the court to transfer the child and even where the application is made the court need not allow it.
This amendment provides for a situation where no transfer has been made up to the point where the young person attains 18 years of age and any transfer after that would be to a place of detention or prison, thus by-passing the children detention centres for 16 year olds and 17 year olds. I commend this amendment to the committee.
I move amendment No. 106:
In page 95, subsection (5), line 43, to delete "place of detention" where it firstly occurs and substitute "children detention centre".
I move amendment No. 107:
In page 96, paragraph (e), line 36, to delete “and cultural identity” and substitute “, cultural and linguistic identity”.
Under this provision each board of management is to submit to the Minister an annual report which includes information on the performance of its functions during the year to which it relates, information relating to the children detention school or schools under its management and such other information in such form as each board considers appropriate. I want the position clarified on these reports. Will they be made publicly available? Will they be kept internally by the Minister? Will they be laid before each House of the Oireachtas and, if not, why not?
As Deputy Shatter can note, the legislation does not specifically state that but I do not see any reason they would not be made public.
I suggest this section be amended on Report Stage by way of a specific amendment to require the Minster to lay these reports before each House of the Oireachtas, which is the normal procedure to allow the reports to be lodged in the Library. It guarantees that they are given public currency and that there is accountability. I did not formally table an amendment on Committee Stage because I wanted to raise it as an issue for discussion. I hope the Minister of State responds positively and agrees to table the appropriate amendment on Report Stage because I do not want this to become a matter of contention.
In keeping with the SSI where the later reports, for example, are public, we will table an amendment to that effect.
Amendment No. 109. Amendment No. 110 is an alternative. Amendments Nos. 109 and 110 may be discussed together by agreement.
I move amendment No. 109:
In page 106, subsection (1), line 36, after "regular" to insert "and at least annual".
This amendment seeks to ensure that annual inspections are carried out by the inspector. The Bill states "regular" but we want to make that more specific to ensure there is full accountability. "Regular" could be interpreted in a variety of ways. We want to ensure a specific time frame. The Minister's amendment refers to a specific time frame in that it states "(which shall be at least once every 6 months)". That is satisfactory.
I move amendment No. 110:
In page 106, subsection (1), line 36, after "regular inspections" to insert "(which shall be at least once every 6 months)".
I move amendment No. 111:
In page 106, subsection (2) (b), lines 44 and 45, to delete “both recreational and educational” and substitute “including recreational, educational, cultural and linguistic facilities”.
I move amendment No. 113:
In page 107, lines 18 to 20, to delete subsection (7).
This amendment will delete a provision that would not have allowed the inspector of children at detention schools to investigate grievances by individual children. On reconsideration following points made on Second Stage, I accept this could undermine the role of the inspector. I propose that the inspector would have the power to investigate grievances of individual children.
I move amendment No. 114:
In page 108, subsection (3), line 14, after "children" to insert "including their cultural and linguistic needs".
This section deals with visiting panels. It states that a "visiting panel for children detention schools shall be established as soon as may be after the commencement of this section and shall consist of such number of persons, not being more than 8 or less than 6, as the Minister shall think proper". Subsection (3) provides that in "appointing members of the visiting panel, the Minister shall ensure that persons with knowledge or experience of matters relating to the welfare of children are adequately represented on it".
In a reply to a recent Dáil question I received details of all of the wondrous appointments made to the prison visiting committees by the Government. They can best be described as completely and utterly farcical. It seems to be a home for people whose political allegiances are attached to either Fianna Fáil or the Progressive Democrats. Most of the people appointed seem to be appointed to prison visiting committees at the greatest distance from their homes to ensure they can obtain the maximum expenses. There are people from Kerry travelling to Portlaoise and people from Dublin travelling to Cork. People are earning between £4,000 to £6,000 a year travelling expenses. There is no reason the Mountjoy Prison visiting committee, for example, could not be derived from people who reside in Dublin, Wicklow or the Meath areas to ensure that unnecessary expense is not incurred. There is no visible indication, in the context of a special interest or expertise in the running of prisons, why any of these people are on prison visiting committees.
I am concerned that the panel proposed in this Bill, which is desirable, will be yet another sinecure for political hacks. I do not mean that in a totally disparaging way. All parties in the past have sinned in this area. It is time this stopped because there is no excuse for it. It is an abuse of public money and it undermines the role prison visiting committees play. I want an assurance that the panels proposed in the Bill will not be composed on a similar basis by this Government or a future Government.
Subsection (3) requires that "persons with knowledge or experience of matters relating to the welfare of children". Everyone who is a parent could qualify on that basis. Anyone who has not been fortunate enough to have children but who is an aunt or an uncle will qualify. I urge the Minister of State to consider tabling an amendment on Report Stage which ensures that the people appointed to these panels have a more defined area of expertise than is provided for in the Bill. Otherwise, these panels will become sinecures for party political appointments which facilitate the Minister of the day giving positions to people with whom he or she is familiar and who are either members or supporters of his or her party to ensure they get a few pounds tax free. If there is not a positive response, I will table an amendment in this area. The way we operate these systems is a total scandal and disgrace. These panels are serious.
The Deputy's point is well made.
They are also serious in the context of everything we are hearing about difficulties which have occurred in the past and are still occurring today in different institutions provided for children. There has already been a High Court inquiry into the most recent institution which was closed down. I have heard reports today of——
The Deputy should confine his comments to the visiting panels. His point has been well made.
I have not detained the committee unduly today.
I accept that.
I have heard serious allegations today of the current ill treatment of a child or children in Trinity House. I want to ensure these panels have teeth. I also want to ensure they are composed of people with a genuine interest in the schools which are being set up, who have some degree of expertise, who are able to assess whether the schools are properly operating or whether there are problems and who have confidence in their capacity to have access to the children in these schools to have discussions with them which are confidential and which will not be overseen by staff in the schools so that where there are difficulties, they will rapidly come to light and be rapidly addressed. I want an assurance this will occur in the context of the workings of this legislation.
Every appointment made by the Government is of people who are of good standing and have a contribution to make. Deputy Shatter said he learned this morning about allegations in relation to a child in a particular school. As we are in public session of a Dáil committee, I can only presume this is not the first place he has raised that matter and that he has taken it up with the school and notified the authorities if he is aware of serious allegations. I hope he is not just making a political point out of it, because it is an important issue. The existing inspectorates, be they in the Department of Education and Science, or the social services inspectorate, have been carrying out their work and are conscious of anything that needs to be done. As we have seen in the recent report by the inspectorate, it is important that these issues become public and are acted upon immediately. The section refers to people with experience in the welfare of children, but I am not sure how prescriptive one can be about that. People may have a broad range of experience in children's welfare. Section 190(4) also refers to the geographical situation which might cover some of the points Deputy Shatter raised. I am not sure what route we can take on Report Stage but we will certainly examine the matter.
Section 192 provides that any judge designated as a Children Court judge in accordance with section 72, or any other judge who transacts business in the Children Court, may visit any children detention school. Even with this new legislation I could well envisage situations arising where issues relating to children who have spent time in a detention school may arise in the High Court and, as I understand it, they would also possibly arise in the Circuit Court on appeal from a decision made in the Children Court.
I do not know why this section seeks to curtail the freedom of judges to attend or visit a children detention school, and confines it basically to District Court judges. It would seem to make sense that this section should provide that not just any judge, but also any public representative who wishes to do so, may visit any children detention school, or any place provided for under section 161, at any time. This section is too restrictive, although the intention is well meant. It is probably designed not simply to ensure that judges of the Children Court have access but also to encourage them to visit the schools to some degree. I would like to see a provision inserted in the Bill, if possible, that would require judges who are dealing with cases in the Children Court to visit the children detention schools before they make adjudications on such applications to the court. Given the independence of the Judiciary, however, we would have a difficulty in making that provision compulsory. The right of access should extend to all members of the Judiciary and to all Members of the Oireachtas.
It is important that judges who are placing children in detention centres, such as special schools, should visit them to see exactly what the consequences of their actions are. Given the independence of the Judiciary, we certainly cannot oblige them to do so, but we will examine that section on Report Stage with a view to expanding it.
I move amendment No. 115:
In page 109, before section 193, to insert the following new section:
"193.-(1) The Special Residential Services Board shall accept any child ordered by a court to be detained in a school, unless the children detention order is, on its face, defective.
(2) Where there is no place available in any school, or the order would have a seriously detrimental effect on the welfare of the existing children in a school, the Chief Executive Officer of the Special Residential Services Board shall report accordingly to the court.".
This section concerns the regulations under which directors can accept children sent by the courts. This has been a problematic area in the past, because very often places have not been available. The only way of complying with the order of the court is to release one of the children already detained in the school, and send them home or elsewhere, in order to free up a place. This is obviously unsatisfactory as it replicates to the revolving-door scenario in prisons. It also has a negative effect on the child who is moved out. The system should not operate like this. There is a clear role for the Special Residential Services Board. First of all, the order should be made to the Minister, and it would then be administered by the Special Residential Services Board which has a good overview of the available facilities. That is why I have proposed our amendmentNo. 115.
The responsibility should be placed clearly on the shoulders of the Special Residential Services Board, rather than on the director who is trying to run a school. If all the places in that school have been filled, things are working well, and the children have settled into a routine and are working on programmes, it can have a hugely detrimental effect if the director is obliged to take in an extra child. It may mean that another child has to be moved out and so their programme is interrupted.
It may be that a child referred to a special school is unsuited to that school, or that his or her behaviour is such that he or she would cause havoc in the school, thus interfering with the rights of the other children there. Those decisions have to be juggled by the director but it is the wrong way to operate the system. If the Special Residential Services Board has any role, it is to ensure that placement is carried out in an appropriate way. We must bear in mind the way in which cases have been handled in the past. There were some high-profile cases before the courts and places had to be found for those children. Very often, however, places in such cases are found at the expense of other children who might not have been in a position to attract the same publicity as the new arrivals.
When places are found for such children we tend not hear what happens to them afterwards. On occasions, the referral of such children to a particular school can caused major problems by disrupting programmes that other children are pursuing and thus changing the internal balance of the school. It is only when speaking to staff who work in special schools that one realises how inappropriate the current system is. Under the terms of the Bill there will not be a choice for the director about whether to accept a child for placement.
In certain situations it is wrong to place a child in an institution, particularly if it means another child will lose a place. Those critical decisions should not be placed on the shoulders of the director who has no choice in the matter. The complex aspects of those decisions should be considered by the Special Residential Services Board. If it finds that an appropriate place is not available, the board should report that to the court. That would ensure that everybody would be aware of the inadequacy of the existing provisions, rather than continuing to brush such problems under the carpet so that nobody is aware of them unless they hit the newspapers.
I support Deputy Shortall's amendment. A number of issues were raised in submissions that we received concerning section 193. That section, which requires the direction of a children's detention school to accept any child ordered by a court to be detained in the school unless the detention order is, on its face, defective, will create particular problems. In the context of this section and having regard to Deputy Shortall's amendment, perhaps the Minister will explain how the problems will be addressed. For example, what will be the position if there is no place available in the children detention school? It seems that, even if there is no place available, the director of the school must accept any child ordered by the court to be placed in the school. Deputy Shortall has raised the issue of a child being released from the school to make a place available for another child. That would not be appropriate and, clearly, should not happen. It seems that there is a particular problem. If we are to operate the Minister of State's structure, the director of a children detention school should be under an obligation to accept a child ordered by a court if there is a place available in the school, but how can that obligation apply if there is no such place available?
Deputy Shortall's amendment addresses a point made in the submissions we received, that children should be placed by the Special Residential Services Board. This may get over the dilemma because the board, presumably, would not place a child if it was aware that a particular school was full.
Section 193 places an obligation on the directors of children detention schools to accept young offenders properly referred to the schools by the courts. The purpose of the amendment is, in effect, to avoid a revolving door developing in the schools. The amendment proves how difficult it is to legislate for the point. There will always be tension between the number of young offenders referred to the schools and the number of places available on a particular day. Turning the child back, therefore, at the door is obviously not the answer, but neither is the amendment because the Special Residential Services Board is not a service provider. It does not provide places of detention, it is, simply, an advisory board. Deputy Shortall said that power should be placed in the Minister, but neither is the Minister the service provider. Saying that the board will accept any child ordered by a court to be detained in the school raises the question as to what the board will do with the child. The board will not have a place to detain or remand the child and the alternative will be to send the child home, which, in many cases, will be an inadequate or potentially dangerous response.
The amendment would also oblige the chief executive officer of the board to report to the court if places were not available in the school. We still do not know, however, where the child is supposed to be, nor what the court is to do next. The amendment is also silent on this point.
Deputy Shatter asked me to explain how the Bill, and the amendments made to it, will deal with the potential revolving door problem. There are four general points. First, section 96 establishes the principle that detention will only be imposed as a measure of last resort. Section 143 gives specific statutory effect to this principle. With all the alternatives to detention provided for in the Bill, the overall effect should be to reduce pressure on space in the schools. Second, health board referrals will no longer be accepted in the schools. Section 77 makes it clear in another principle governing the rights of children before the court that criminal proceedings will not be used solely to provide any assistance or services needed to care for or protect a child. This will free up a substantial number of places for young offenders in the schools, if needed. Third, the Department of Education and Science's capital development plan for the schools will provide for an additional 30 places. Fourth, the proposed three month minimum period of detention may result in the average referral being of shorter duration. This could, in any case, prove to be the position in the absence of health board referrals.
The overall effect of what I have outlined should, therefore, greatly reduce pressure on spaces in the schools. It may be the case that there will be a place for every young offender. While the legislation will have the effect of freeing up spaces, what is less easy to gauge, however, is how many other factors may increase demand. That is the reason several new provisions - that is, measures not included in the 1996 Act - have been introduced in this legislation in order to ensure there will not be a revolving door operating in the schools. Many of these provisions have been mentioned in the debate on other amendments and to which I will refer briefly.
As well as stating that detention will be a last resort, section 143 also places an onus on the court not to impose a detention order on a child under 16 years of age unless a place is available in a children detention school. Section 144 specifically empowers the court to defer making a detention order when a place is not immediately available in a children detention school. During the period of deferment the child will be under supervision in the community by a probation and welfare officer. Section 145 provides the court with an alternative option where there is no place available and deferment is not deemed appropriate. In such cases the court may impose the community sanction it considers most appropriate for the child.
The purpose of these measures is to provide viable and realistic alternatives should it transpire that the schools are full and cannot for the time being accept further court referrals. The outcome will be that no child will arrive at the door of a school without the director receiving prior notice of the referral and having the opportunity to advise that a place is available.
The final piece of the administrative jigsaw to ensure efficient operation of the system of referrals is to provide for proper communications between all the agencies and persons involved. Amendments Nos. 65 and 127 discussed with amendments Nos. 17, 20 and 30 so provide.
The Special Residential Services Board will have access to the probation and welfare officer's reports with the court's permission. This is crucial because the court will be entitled to consult the board in identifying suitable places in the schools. The material in the reports will allow the board to determine the best and most suitable place for each young offender and have a statutory duty, for that purpose, to liaise with the directors. A proper channel of communication is, therefore, being established with the board in a pivotal role between the courts and the schools. This will ensure misunderstandings will be a thing of the past.
I regret having to speak for so long about this matter, but important issues, both general and specific, are involved in the future operation of children detention schools. While not accepting the amendment, I hope I have explained what is happening in the legislation in order to achieve the same objective.
It seems that the Minister of State has made a very good argument for the amendment. I do not share her confidence that we will reach a stage where there will be an adequate supply of places. Certainly, the history of the problem would not indicate that we will overcome it. Equally, while bearing in mind that health board cases will no longer be referred to Department of Education and Science facilities, and the other measures provided for in the Bill, the indications at community level are that the problem of young offenders is escalating at an alarming rate. I am sure the Minister of State will agree that that is so. I cannot envisage a situation where we will have an adequate number of places to accommodate sentenced children.
When a judge orders a child to be detained in an institution, gardaí drive the child to Oberstown, Trinity House, or St. Patrick's Institution. The director can refuse, however, to take him or her. In such a case, the child might be driven home by the gardaí and nothing further happens unless a politician is notified and tables a parliamentary question. I am concerned that under the proposed legislation gardaí will arrive at the door of the institution and the director will have no choice, but to accept the child. In most situations there will not be a vacant place and another child will be sent home. Decisions will be taken on practical grounds, rather than in the best interests of all the children concerned.
The Special Residential Services Board is ideally placed to make decisions on the appropriate placement of children. When a place is not available it would report back. I am pressing the amendment because I feel strongly about this point. The system has worked so badly that the obligations placed on directors under the Bill will exacerbate the problems. This is an appropriate role for the Special Residential Services Board.
While accepting that there is a problem because of the shortage of places, it is important that the matter be seen in the context of the entire Bill and what it purports to do. I referred to the extra 30 places which will be provided by the Department of Education and Science. We are well on the way towards providing the extra 110 places for which the health boards have provided. This will substantially free up places in education centres. It is to be hoped also that the community sanctions will be used as alternatives to detention. The whole purpose of the Bill is that detention will only be used as a last resort. The National Children's Office is working to identify ways of implementing the Bill at local level.
In most cases there is no forward planning.
The point I am making is that there is forward planning. The National Children's Office is working with each centre, nationally and locally, to ensure the provisions will be in place.
Where are the staff?
Finance has been provided in the budget for this year for each health board to ensure it can recruit staff and provide various facilities.
I am talking about the Justice area. That is what we are talking about in children detention schools. It will not be possible to implement the alternative sanctions if there are no probation and welfare staff available.
I referred to that matter at the select committee recently.
There are vacancies which cannot be filled. The additional posts proposed under the Bill will not be filled either in the foreseeable future.
I move amendment No. 116:
In page 110, line 8, after "Minister" to insert "following appropriate consultation".
I propose in regard to the treatment of children that rather than the Minister, on his or her own, deciding which special courses in children detention schools should be provided, there should be consultation because the Minister of the day is not necessarily best placed to decide such issues. There should be wide consultation with those with expertise.
It is not clear from the wording of the amendment with whom the Minister should consult before making a decision on treatment facilities. It is also unclear on what they should be consulted. It is not the purpose of the section to decide what types of specialised treatments should be provided in children detention schools. This will be decided by the Minister for Education and Science based on experience of the types of problems generally exhibited by young offenders and consultations with medical, psychological and other experts.
The decisions having been made, the section obliges the Minister to decide which schools will provide particular treatment. The types of treatment envisaged will be so specialised and required by relatively few young offenders that they will not necessarily be available in all the schools. Different treatments will be available in different schools. The decisions will be based, therefore, on such matters as the space available in the schools and the number of children who might require a certain course of treatment. I cannot accept the amendment because it is not clear enough.
I move amendment No. 117:
In page 112, between lines 23 and 24, to insert the following subsection:
"(2) Each Director shall place before the Board of Management of each school, for adoption, the regulations to be followed in the operation of 'mobility trips', and these regulations shall be appropriate to the age and maturity of the children concerned.".
This section relates to mobility trips for children in children detention schools. The approach adopted in the schools has been informal and dependent on the staff working there at any given time. There is a high turnover of staff. Views on the most appropriate management of young offenders vary with fashions and in different training colleges and so on. There is no doubt that mistakes have been made and risks taken where children have been brought on various trips that were not appropriate. There have been resulting problems with children absconding and so on. There is, therefore, a need to regularise these trips. Children detention schools should have a policy in this regard which would be laid before the board of management in order that everybody would be clear on the approach to be adopted and that there would be guidelines in place.
I support the amendment.
I am unable to accept the amendment for technical and policy reasons, but propose two amendments which will be discussed next and meet some of the concerns raised by Deputy Shortall. Sections 202 to 210, inclusive, replace mobility trips or, in the case of "other permitted absences", mobility trips are additional to analogous provisions in the 1996 Bill. It has been represented to me that the 1996 Bill provisions were overly prescriptive and left little flexibility in the hands of directors. The criticism is partly justified. Accordingly, I have asked that the provisions concerning leave and absences be made less restrictive, but that they should conform to the general policy on the issues laid down by boards of management. Directors will have almost total flexibility when planning the leave and other absence arrangements for individual children and providing for this was greatly facilitated by the decision to abandon the notion of a single board of management for the schools in the light of the provision of the Special Residential Services Board.
Deputy Shortall's amendment would require the director to place before the board of management for adoption the regulations to be followed in the operation of mobility trips, which should be appropriate to the age and maturity of the child concerned. There is no power for the director or the boards to make regulations, which is a function of the Minister. The boards will, however, have power to make rules.
Under section 179 each board can set out the procedures and conditions applicable to the grant of mobility trips in its school. The director will have to act within these general guidelines, with which there is nothing wrong. Most work within certain specified parameters. The director will have to keep the board informed about how its rules are being implemented. This allows for consistency and flexibility and allows the director to go about his or her day-to-day work without interference. It will also avoid inappropriate decisions of the type that some years ago necessitated a previous Minister with responsibility for children temporarily banning all mobility trips. I regret, therefore, that I cannot accept the amendment.
The Minister of State is splitting hairs. I am trying to achieve the establishment of policy on mobility trips in all children detention schools for which the Minister of State's amendments do not provide. This is an important issue because there is such variation in opinion and approach to children. The current approach is too ad hoc and it would be good for all concerned, boards of management and staff, to give thought to the conditions surrounding mobility trips and their aims. The school should devise a policy on such trips. This would be in everybody’s interest.
I refer the Deputy to section 179(1)(b) which states: “The Board of Management shall set out the procedure and conditions application to the grant of mobility trips”. This covers her concerns.
More than the conditions are applicable. There is a terrible dearth of policy in this area.
The section covers the procedures and conditions applicable.
Amendment No. 119 is related to amendment No. 118 and both may be discussed together.
I move amendment No. 118:
In page 112, lines 29 to 31, to delete subsection (4).
Section 204(4) proposes to delete "states of mobility trips cannot be authorised until a child has completed four weeks in detention". With regard to mobility trips which are supervised and of short duration the need for those four weeks to elapse is not essential. This could result in a child not being able to take advantage of treatment or counselling. I propose to remove the four week requirement.
I move amendment No. 119:
In page 113, lines 4 and 5, to delete subsection (11).
Amendment No. 121 is an alternative to amendment No. 120 and amendmentNo. 122 is consequential on amendment No. 121. All three may be discussed together.
I move amendment No. 120:
In page 113, lines 11 and 12, to delete subsection (2).
The Bill is much too prescriptive in this subsection. This is about temporary leave. The Bill, as it stands, states that no temporary leave programme shall provide for temporary leave in the first two months of any child's period of detention. There are umpteen circumstances which could arise where it would be very much in the child's interests to be granted temporary leave to return home within the first two months, for example, where a parent is seriously ill or has died, where the home situation has changed dramatically, such as an abusive parent leaving, Christmas or the child's birthday. It cannot be set down in statute that under no circumstances can a child be granted temporary leave in the first two months. Discretion must be given depending on the individual circumstances of the child and his or her home situation. I propose that the subsection be deleted.
I strongly support Deputy Shortall's amendment and hope the Minister of State will have the generosity to accept it because, clearly, she regards the section as too restrictive but, for some reason, feels the need to maintain a restriction. The section provides in subsection (2) that no temporary leave programme shall provide for temporary leave in the first two months of any child's period of detention. The Minister of State proposes to substitute one month for two months. Deputy Shortall correctly tries to delete the subsection.
Those who work with children made submissions to the select committee that section 205(2) should be deleted because it is too restrictive and gave specific examples of situations which could arise. For example, if there is a family bereavement a few weeks after a child has been placed in a children detention school - for example, the child's mother, father, sister, brother, uncle or aunt dies - under the Minister of State's amendment, the child cannot be granted temporary leave. Deputy Shortall mentioned Christmas as a possibility. In the context of working with a child who has difficulties and is in a children detention school, it may well be adjudged that, if it is Christmas day at the end of the third week after the child has entered the school, it would be in the interests of the child's welfare and do no damage to the programme with which the child is to be provided that the child spend Christmas day with his or her family.
I do not see any need for either the two month or the one month prohibition the Minister of State proposes. There should be flexibility. The professional child care workers who work with children in these schools hold this view which was represented very persuasively to us. I hope the Minister of State will accept Deputy Shortall's amendment because it is very reasonable.
The examples given by Deputies Shortall and Shatter would be covered under permitted absences in section 202 where the director may, by order, permit a child to be absent for the purposes of attending the funeral of a relative or visiting a relative who is seriously ill, and other exceptional purposes which would cover almost all the circumstances mentioned. The child would be permitted to be absent, but would not be given temporary leave. This covers circumstances where a director would formulate an individual temporary leave programme for each child following a detailed assessment of his or her suitability.
Obviously, it would not be too much to expect that, where a court refers a child offender to a school, a short time, at least, would have had to have passed before temporary leave could be given. It would be demoralising for the community in which a young offender had caused trouble to see him back the following weekend. The legitimate examples raised by the two Deputies are covered under permitted absences.
I accept that two months may be too long and more flexibility is warranted. For this reason, amendments Nos. 121 and 122 provide for the halving of the two months to one month. It is not a question of splitting the difference. The principle of allowing time for assessment and allowing, at least, a minimum period to elapse before a child becomes eligible for temporary leave is being retained. Few of the longer stay detainees would qualify for temporary leave very early in their detention. For those referred for a shorter period closer to the proposed minimum of three months, however, early temporary leave as part of a reintegration process may be justified. The amendments provide the flexibility to allow for this situation. The examples raised are covered under section 202.
Will the Minister of State clarify what is meant by "permitted absence" and the distinction between it and temporary leave in terms of time?
Permitted absence is allowed for in the circumstances specified in the Bill.
In terms of time, does it entail being released for two hours to attend a funeral?
It is not prescriptive. The director of the school would decide having regard to the circumstances of the individual child. Temporary leave is planned as part of a programme.
I move amendment No. 121:
In page 113, subsection (2), line 12, to delete "2 months" and substitute "one month".
I move amendment No. 122:
In page 113, subsection (5), line 21, to delete "2-month" and substitute "one-month".
I move amendment No. 123:
In page 116, subsection (4), lines 13 and 14, to delete "the period of supervision shall be deemed to have ended" and substitute "the continuance of the supervision shall be reviewed by the principal probation and welfare officer".
This is a technical amendment which provides for voluntary aftercare when a child is released from a children detention school on completion of his or her period of detention. Under the text, as it stands, where such a child is subsequently found guilty, supervision will automatically cease. This might be too rigid. It should apply no matter what the offence or penalty. A better approach, provided for in the amendment, would be to allow the supervising probation and welfare officer to decide whether the supervision should continue. There is no legal problem with this approach as supervision is voluntary, not having been imposed by a court. I commend the amendment to the select committee.
I move amendment No. 124:
In page 117, lines 18 to 23, to delete subsections (2) and (3) and substitute the following:
"(2) Subject to section 215, a child who is transferred under section 155 to a children detention centre shall be deemed to be in the lawful custody of the person for the time being in charge of the centre from the time the child is transferred to it.”.
I move amendment No. 125:
In page 117, subsection (3), line 42, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 126:
In page 120, subsection (1), line 34, after "as" to insert "Bord Seirbhísí Cónaithe Speisialta or in the English language".
Have we not discussed this amendment already?
I thought we had discussed all the Irish language amendments together. This amendment seeks to include the Irish version of the name.
Reluctant as I am to return to my teaching days with the red biro, is cosúil go bhfuil gá le h-athrú beag a dhéanamh ar an nGaeilge. Tiocfaimid ar ais on Report Stage.
I move amendment No. 127:
In page 121, subsection (1), between lines 12 and 13, to insert the following:
"(d) in particular, assist the courts, on request, in identifying suitable places in children detention schools for children found guilty of offences and for that purpose liaise with the directors of those schools,
(e) give its views on any proposal of a health board, pursuant to section 23A(2)(b) (inserted by section 16) of the Act of 1991, to apply for a special care order under Part IVA of that Act,”.
I move amendment No. 128:
In page 121, subsection (1)(g)(i), line 26, after “educational” to insert “cultural and linguistic”.
I oppose this section and do not know the reason it is included in the Bill. Political points could be made about the need for a full Cabinet post of Minister for children and the difficulties which arise in the absence of such a Minister. However, the power to delegate is already provided for in the Ministers and Secretaries Acts and it seems confusing to include it in the Bill. The section is superfluous.
I thought the Deputy was going to suggest that the power to delegate should not be provided for. She is suggesting, however, that the section is superfluous. The power to delegate is necessary for this section. The Deputy is not questioning that powers would be delegated.
No, as the power is already provided for under the Ministers and Secretaries Acts.
This is a general power of delegation, but it is necessary to be specific in this case.
I move amendment No. 129:
In page 126, subsection (1), line 31, to delete "and 1993" and substitute "to 2000".
This is a technical amendment which proposes to update the Bill in line with the Medical Practitioners Act.
In a spirit of co-operation, I thank the Deputy for drawing this matter to our attention.
I thank the Minister of State.
Section 248(1) provides that, "A person is guilty of an offence if, having the custody, charge or care of a child over the age of 4 years, he or she allows the child to reside in or to frequent a brothel". Why does the section refer to a child over the age of four years? I do not know whether it is procedurally correct at this stage, but I propose that we delete the words "over the age of 4 years". I see no reason it should be acceptable that a three year old or a two year old child be allowed to reside in or frequent a brothel.
The original reason for this provision was to allow prostitutes to have their babies with them. Four years of age was the age at which it was regarded that children might be corrupted or influenced by where they live.
Prostitution is unlawful and someone who seeks to secure the services of a prostitute can be prosecuted. I do not see the reason we should make it acceptable in legislation that three year old children can be looked after in brothels. I propose that we delete the words "over the age of 4 years".
I accept that argument as such situations would be inappropriate. I outlined the original reason for the inclusion of this provision, but accept the principle outlined by the Deputy.
If my oral amendment was accepted, the section would read: "A person is guilty of an offence if, having the custody, charge or care of a child, he or she allows the child to reside in or to frequent a brothel".
I accept that informal amendment.
Oral Amendment agreed to.
I move amendment No. 130:
In page 132 paragraph (b), line 4, after “committed” to insert “or the giving by that child of evidence by way of television link”.
Depositions are generally unsatisfactory, the worst way in which to give oral evidence and should only be used as a last resort. Is it not sufficient to simply provide that the child should not be able to attend. He or she should also have to be unable to use a video link.
There are two sets of offences involved in this regard and I will consult the parliamentary counsel before coming back to the issue on Report Stage.
I move amendment No. 131:
In page 134, to delete lines 40 to 50.
I do not understand the reason the Minister should have the power to water down the section which deals with the non-disclosure of convictions. My amendment proposes the deletion of this provision.
Section 259 is a long and complex section which provides for a limited wiping of the slate in respect of most offences committed by persons when under the age of 18 years. There are conditions in this regard which have to be met, namely, the individual was a child when the offence was committed, the offence is not one of the more serious offences, such as murder or rape, that a period of three years has elapsed since the finding of guilt and the person had not been dealt with for another offence during those three years.
About 13,000 children are apprehended each year on suspicion of committing offences, less than 3,000 of whom are prosecuted. Of that 3,000, only those convicted of an offence end up with a criminal record. It is only right that once-off or petty offenders are allowed to put their youthful indiscretions behind them in so far as the law allows and that is the purpose of the section.
The section cannot suggest that an offence was never committed. The only way in which this can be done is through a successful appeal or pardon and, even then, the effects or consequences could be qualified. The section stipulates that, once the conditions have been met, the effects of the finding of guilt or conviction, rather than the finding or conviction, will be wiped out. Much of the section concerns the details of the consequences of convictions becoming expent.
The Deputy's amendment seeks to delete sections 259(4)(d) and 259(5). Section 259(4)(d) gives the Minister power to, by order, make exclusions or modifications regarding proceedings other than those before a judicial authority as specified in section 259(4)(b), and to exclude certain cases and findings from any agreement to disclose matters regarding an expent conviction, as outlined in section 259(4)(c).
Section 259(4)(d) is similar to an analogous provision in the Northern Ireland rehabilitation of offenders order and, on balance, I consider it prudent to include such a provision in section 259. For example, the question of past sexual offending might arise. Accordingly, I cannot accept the amendment.
I move amendment No. 132:
In page 136, subsection (1)(a), to delete lines 37 and 38 and substitute “remand centre, children detention school or children detention centre designated under section 150(1),”.
I move amendment No. 133:
In page 136, subsection (1)(c) line 41, to delete "institution" and substitute "centre".
I move amendment No. 134:
In page 136. subsection (1)(c), line 42, to delete “place of detention” and substitute “children detention centre”.
I move amendment No. 135:
In page 137, between lines 20 and 21, to insert the following subsection:
"(2) References in Part V (Jurisdiction and Procedure) of the Act of 1991 to Part IV of that Act shall be construed as including references to Parts IVA and IVB (inserted by section 16) thereof.".
We discussed this section earlier. My concern is that it provides for the continuation of child soldiers, which we should seek to end. However, that is an argument for another day.
I thank the Chairman, the secretariat of the select committee and the main spokespersons for a very thorough and useful Committee Stage debate. We look forward to Report Stage.
Is the Minister of State yet in a position to tell us when we can anticipate Report Stage? We are all of the view that it is urgent that we complete the Bill and that the Seanad completes its consideration of it before the summer recess.
My intention is to have it passed by the Seanad before the summer recess. We have committed ourselves to a number of amendments on Report Stage, which will be taken in a couple of weeks, and I will ask the Chief Whip to give it priority.
I have been under great pressure from the Chief Whip to complete Committee Stage on the basis, I presume, that Report Stage will be taken as soon as possible.