SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Thursday, 1 Jun 2006

Criminal Justice Bill 2004: Committee Stage (Resumed).

Chairman

I welcome the Minister of State, Deputy Brian Lenihan, and his officials to the meeting, the purpose of which is to resume Committee Stage of the Criminal Justice Bill 2004. Is it agreed that the committee adjourn at 11.30 a.m.? Agreed.

The previous meeting of the committee dealt with amendments Nos. 189 to 195, inclusive, which concern adult civil orders. We now move on to amendments Nos. 196 to 231, inclusive, which would insert a new section — Part 12 — into the Bill in respect of the changes to the Children Act. I call on the Minister of State to give a short presentation about what he intends to do within those amendments and the Opposition spokespersons to then make a general statement about them because we have not gone through Second Stage.

NEW SECTIONS.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

I move amendment No. 196:

In page 25, before section 24, but in Part 4, to insert the following new section:

"PART 12

AMENDMENT OF CHILDREN ACT 2001

119.—In this Part—

"Act of 1908" means the Children Act 1908;

"Act of 1970" means the Prisons Act 1970;

"Act of 1991" means the Child Care Act 1991;

"Act of 2001" means the Children Act 2001;".".

I am prepared for that and will be guided by the Chair. I welcome the opportunity to highlight the importance of the key changes being proposed before discussing them in more detail.

The amendments arise from a review of the youth justice system initiated by the Minister for Justice, Equality and Law Reform and I. The review examined the system, made a comparison with international best practice and carried out an extensive consultation exercise. The findings show that the Children Act 2001 is a sound legislative basis for a progressive and modern youth justice system that compares favourably with international experience. However, the review highlighted some changes in the legislation and the system as a whole that would enhance its effectiveness. Following an examination of the report, the Cabinet committee decided that the necessary legislative changes should be prepared.

The effect of these amendments will be to accelerate the implementation of the Children Act in its entirety. At the time of its enactment in 2001, it was envisaged that implementation would take quite a number of years. In the course of doing so in respect of substantial parts, there were certain legal obstacles which these amendments seek to remove.

Last December, the Government took a series of decisions to implement the proposals for youth justice reforms. These included a number of legislative changes, which are before the committee, and the establishment of one body to have responsibility for policy in the youth justice system, the Irish youth justice service. This is an executive office of the Department of Justice, Equality and Law Reform and is co-located within my office, the Office of the Minister for Children. In effect, the Department has a dedicated wing dealing with youth justice policy under the direction of a Minister of State who attends Government meetings. Ms Michelle Shannon has recently been appointed as national director to head up the new service.

The amendments being discussed today will enhance the provisions of the Children Act. Some of the minor amendments are to ensure consistency with other more significant amendments. Other amendments are being made to the provisions on areas such as sentencing, inspection and the Special Residential Services Board. Amendments will also enable the Children court to require the attendance of a representative of the Health Service Executive in certain circumstances. I propose to discuss these amendments as they arise. In general terms, the main issues addressed by these amendments relate to the consolidation of youth detention, the age of criminal responsibility, anti-social behaviour by young persons and the functions of the Special Residential Services Board.

Regarding the consolidation of youth detention, in addition to transferring responsibilities to one body, the amendments will extend the detention school model to all offenders under the age of 18 years. Under the original Children Act 2001, it was envisaged that the child detention schools would accommodate offenders up to the age of 16 years and the Department of Justice, Equality and Law Reform would build facilities for 16 and 17 year old offenders. On examination of the number of offenders involved, that was an impracticable scheme.

Under a single service, the different approaches for those under and over the age of 16 years provided in the 2001 Act are no longer necessary. Any child detained will benefit from a single cohesive detention system appropriate to the care and rehabilitation of young offenders. A new section of the Act will address the educational needs of young offenders. Education in detention schools will become the responsibility of the vocational education committees, which will be able to deliver the continuity of education and training that these children need. It is important to stress that detention is a last resort. Bringing all aspects of youth justice policy under the ambit of the Irish youth justice service will help the development and use of non-custodial remedies as well as detention and rehabilitation.

The age of criminal responsibility provision in the Children Act has not been commenced. If it were commenced, it would prevent the State from intervening in the case of a child under 12 years of age, irrespective of the seriousness of the behaviour. There is a balance required between holding a child accountable for serious criminal behaviour and the protection of the child. These amendments will ensure that no child under the age of 14 years can be charged with an offence without the approval of the Director of Public Prosecutions. Currently, the DPP has no legal control over charges against offenders under that age. It is proposed that no child under the age of 12 years can be charged with anything other than a most serious offence and the amendments will allow for the admission of ten and 11 year olds to the Garda diversion programme.

The issue of anti-social behaviour orders has been before the committee. When the Minister announced his intention to introduce anti-social behaviour orders, I raised with him the matter of the Children Act and its compatibility with such orders. A considerable amount of work has been done in the Department to ensure the anti-social behaviour orders applied to persons under the age of 18 years are tailored to be consistent with the spirit and philosophy of the Act. A separate provision is being made in respect of young persons and all of the protections of the Children Act 2001 will apply.

The model entails a series of incremental stages, with parental involvement preceding an application for a behaviour order. These stages include a warning, good behaviour contract and referral to the Garda diversion programme. Normally, it will only be after these stages have been taken that a behaviour order will be sought through the courts. The court with jurisdiction will be the Children Court and there is no question of whether young offenders will be brought into any other forum to deal with anti-social behaviour. These amendments also make provision to ensure the HSE can be called into the Children Court where a child is charged with an offence and the court is of the view that the child may be in need of welfare and protection. It is essential that the court has recourse to the HSE when it wishes and that the HSE attends when required.

The Special Residential Services Board was established under the 2001 Act. Final agreement had been arrived at between the Departments on where the appropriate places to detain children through the co-ordinating board were but I am glad to say we have arrived at a decision. The functions of the board must be revised accordingly. That is all I will say in general terms at this stage.

Mr. G. Murphy

On the age of criminal responsibility, the relevant section in the Children Act has not been implemented. Do these amendments mean the section in question will never be implemented and this Bill will supersede the Act in that regard?

Mr. B. Lenihan

No. It is expressly envisaged and is specifically provided for in the amendments that three months after the enactment of this Bill, the parts of the Children Act dealing with the age of responsibility will commence. The purpose of my amendments is to accelerate the commencement of the age of responsibility part, namely, section 52 in Part 5. As such, it will not be a matter of issuing a ministerial order.

Mr. G. Murphy

The general process in respect of ASBOs will involve three warnings being issued to the individual in question. If the person fails to heed the warnings, a civil action will be taken. Finally, if the person breaches the action, it becomes a criminal offence. Does this offence create a criminal record or is it just a breach of a court order issued under a civil jurisdiction? If someone were applying for a visa, would he or she need to list this matter as a criminal offence?

Mr. B. Lenihan

In the case of a person under the age of 18 years, the anti-social behaviour order will only arise as the Deputy has outlined, that is, warnings, parental involvement and a good behaviour contract signed at a Garda station, none of which incurs legal or criminal sanctions.

If a superintendent decides at the end of those measures that a person under 18 years of age should be the subject of a court application for an anti-social behaviour order, it can be done. The Children Court, which is the court that normally deals with all juvenile offending matters, will hear that application. If that court decides to make the order, the consequences of breaching it will be the commission of a criminal offence.

Ms Lynch

What are the penalties?

Chairman

The Minister of State can answer that question but we will deal with specific matters when we debate the relevant amendment.

Mr. B. Lenihan

The penalty is a maximum fine of €800 or three months' custody. These options are available to the sentencing judge if the offence is prosecuted. If a person subject to an anti-social behaviour order engages in behaviour in breach of the order, he or she may be prosecuted. On conviction the penalties are as set out above but all other sanctions, including community sanctions under the Children Act, would be available.

Chairman

Will it affect the application for release?

Mr. B. Lenihan

It would affect it in the same way as any criminal record affects such an application.

Mr. G. Murphy

Is one punished for a breach of the civil order or for a crime? A breach of a court order would not necessarily create a criminal record.

Mr. B. Lenihan

Breaching a court order is an offence that must be prosecuted like any other. One is not summoned before the court for breaching the court order. The details of the offence must be proven.

Ms Lynch

Much of what I wanted to ask has been covered. I am worried by the manner in which anti-social behaviour orders have been implemented in England.

Chairman

We are not having a question and answer system but the Deputy may make comments on how she believes it should operate.

Ms Lynch

The notion that we will simply move people from one area to another is ludicrous and I am glad to hear that we will not be doing so. We should examine in greater detail the issue of representation of those accused of anti-social behaviour. Will all provisions in the Children Act be implemented within 12 months? I cannot see this being implemented without the Children Act being in place. They could be implemented in tandem but the Children Act is the template for how we treat young people. This element of the Criminal Justice Bill is an adjunct.

Aengus Ó Snodaigh

I have major difficulties with this section and the other section dealing with anti-social behaviour orders. Other Deputies have alluded to the Children Act and the sections that were never implemented. If they had been implemented and were failing, we could consider some of the provisions in this section. When this was initially suggested, the Minister of State raised concerns. At the least we should put these sections on hold until after the Children Act has been fully implemented. At that point we could examine the need for these sections.

The Children Act was agreed by most parties and practitioners in the field of child protection who try to ensure children are not criminalised. Everyone agreed that the Children Act was a positive outcome. We should have made progress on providing resources to ensure it is operational. If that was the case, we would not need this Bill and I hope we do not have to resort to it. I am pleased the Minister rowed back from his initial position and that there are some provisions concerning the Children Act to ensure the latter is used in the first instance. My preference is not to continue along this road because the case for it has not been proven. Groups that work with children were not consulted to the same extent as when the Children Act was being prepared. This is a retrograde step.

Chairman

I do not know whether the Minister of State wishes to address the points raised by Deputies Lynch and Ó Snodaigh. I invite him to speak on amendment No. 196.

Mr. B. Lenihan

This amendment sets out the names of the legislation used in Part 12 and is purely a technical drafting exercise.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 197:

In page 25, before section 24, but in Part 4, to insert the following new section:

"120.—Section 2 of the Act of 2001 is amended in subsection (2)—

(a) by the insertion of the following paragraph after paragraph (a):

"(aa) Part 5 shall come into operation 3 months after the passing of the Criminal Justice Act 2006.”,

(b) by the deletion of paragraph (c),

(c) in paragraph (d), by the deletion of “for Education and Science”, and

(d) by the insertion of the following paragraph after paragraph (e):

"(f) The amendments made to Part 11 in sections 152 and 153 of, and paragraph 30 of Schedule 4 to, the Criminal Justice Act 2006 shall come into operation on such day or days as the Minister for Health and Children, with the agreement of the Minister for Justice, Equality and Law Reform, may by order or orders appoint.”.

Amendment No. 197 is an amendment to section 2 of the 2001 Act, inserting a new paragraph into section 2(2). This will ensure that the amended Part 5 of the 2001 Act, dealing with the age of criminal responsibility, will come into operation three months after the enactment of the Criminal Justice Bill 2004. This amendment seeks to ensure that the new provisions on the age of responsibility will commence, as I outlined to Deputy Gerard Murphy. That should happen in September if both Houses have passed the Bill by then.

Paragraph (c) of section 2(2) is being deleted because the Minister for Education and Science will no longer have a role in operating remand centres. The reference to the Minister for Education and Science is also being deleted from the commencement of Part 10 of the 2001 Act, which established the children’s detention schools. One of the recommendations of the youth justice review was that the current fragmentation of responsibility for the juvenile justice system between the Departments of Education and Science and Justice, Equality and Law Reform should end and that the latter should take responsibility. It has been co-located with the Office of the Minister for Children in the Department of Health and Children.

Some have expressed reservations that the Department of Education and Science is no longer in charge of the detention schools. It ill serves the State to have one Department detaining children and another Department providing probation and community sanctions for children. We all wish to see the minimum number of children in detention, in the spirit of the Children Act, but we will not arrive at that point with one Department managing detention and another Department providing probation and community sanctions for children. The youth justice review took the view that it was better to have responsibility for treatment of offending children, including diversion, probation, community-based sanctions and the ultimate sanction of detention, under one roof. For this reason the Minister for Education and Science will no longer be the manager of the detention schools. The provision of an education strategy will be essential for those detained. We are proposing an amendment to deal with this.

Ms Lynch

It is unfortunate that the Department of Justice, Equality and Law Reform has the first official contact with young people — in most cases those involved are not children. When the Office of the Minister for Children was created we expected that it would be an over-arching office. In other words, the Department of Education and Science would deal with the educational needs of the child and the Department of Health and Children would deal with the health aspects. However, a child is more than those component parts. Development of a child should result in a well-rounded functioning human adult. Apart from education, the State has virtually no contact with a child who does not get into serious difficulty. I am seriously concerned that the first contact the State has with any child in difficulty is through the Department of Justice, Equality and Law Reform, which has a particular ethos and rigid view of the world. I know of what I speak.

We handed over responsibility to look after our children to a certain extent in the 1930s, 1940s and 1950s to religious orders. The treatment has changed dramatically, but our attitudes——

Mr. B. Lenihan

The Department of Education and Science——

Ms Lynch

I am not stating that the Department of Education and Science should have responsibility for detention. A specific Department, the Minister of State's Department, should be responsible for the development of the entire person.

Mr. B. Lenihan

It is. Perhaps I did not express myself clearly enough on this point. I want to make clear the basis upon which the Department of Justice, Equality and Law Reform will take responsibility in this area and I must stress two important points.

For the first time, the Department has designated youth justice as an entirely separate area of the Department's work from adult justice. Until now, youth justice did not have a distinct focus on an administrative basis within the Department. That is a fundamental change in the Department's thinking. A Department had to come forward and take responsibility for implementing the youth justice aspects which make up the bulk of the Children Act. The Department of Justice, Equality and Law Reform has faced up to that responsibility and established the administrative structures separate from the current administrative structures which deal with adult offenders.

In a second administrative change, that structure will be located under one roof, namely the Minister and Director General with the child protection and child care aspects of the Department of Health and Children, entirely separate from the Department of Justice, Equality and Law Reform. It is not a case of transferring 100% of responsibility to the Department of Justice, Equality and Law Reform. Youth justice will be administered by a group of civil servants specially designated for that task who will work in close collaboration with a group of civil servants who deal with child care in the Department of Health and Children.

That is the type of joined-up thinking we need in this area. We cannot tell people that agencies must work together and co-operate if we do not do so in Government. That is why we came to the decision, the legal consequences of which are before committee members, that the Department of Education and Science cannot be involved in the running of detention and remand centres. It is, and must remain, involved in educational provision. As Deputy Lynch correctly stated, children cannot be split between Departments. Care must be provided by the Department of Health and Children and educational components must be provided by the Department of Education and Science. If we engage in the ultimate resort of sanctioning a person by detaining him or her, a Department must take responsibility for that detention system.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 198:

In page 25, before section 24, but in Part 4, to insert the following new section:

"121.—Section 3 of the Act of 2001 is amended—

(a) in subsection (1)—

(i) by the insertion of the following definition:

"anti-social behaviour" is to be construed in accordance with section 257A(1);",

(ii) in the definition of "children detention school", by the substitution of "Minister" for "Minister for Education and Science",

(iii) in the definition of "detention", by the deletion of "or a children detention centre designated as such by the Minister under section 150",

(iv) by the deletion of the definition of "junior remand centre",

(v) in the definition of Minister, by the substitution of "Parts 3 and 11" for "Parts 3, 10 and 11",

(vi) in the definition of "prescribed", by the deletion of ", the Minister for Education and Science",

(vii) in the definition of "victim' to insert, after "property", "and, in relation to anti-social behaviour by a child, means a person who suffers physical or emotional harm as a consequence of that behaviour".".

This amendment inserts a reference to the meaning of anti-social behaviour in section 3 of the 2001 Act and repeals it or amends some of the definitions provided for. The expression "anti-social behaviour" occurring throughout Part 4 of the 2001 Act, as amended, is to be interpreted as defined in the legislation.

This amendment inserts a definition, which is identical to the definition I assume the committee already discussed in the context of the adult orders. Again, the Minister for Justice, Equality and Law Reform is substituted for the Minister for Education and Science with regard to "children detention school". For the purposes of the 2001 Act, the definition of "detention" is amended to remove references to "children detention centres".

There will no longer be a distinction between the "children detention school" and the "children detention centre" in the Children Act. The "children detention school" will be the model for the detention of all children up to the age of 18. Specific provision is made — I am sure we will revisit it during our discussions — that St. Patrick's Institution will continue on a temporary basis until the necessary facilities are developed. This legislation intends to phase out St. Patrick's Institution altogether. St. Patrick's Institution accommodates offenders between the ages of 16 and 21. Under the 2001 Act, the plan was to develop dedicated centres on prison sites for 16 and 17 year olds. That plan will not be proceeded with. What is now proposed is that separate children detention schools, which will not be on prison sites, will deal with all offenders under the age of 18.

Parallel to the policy on detention is the proposal to remand all children under 18 years of age to remand centres which mirror detention centres. It is also proposed to amend the designation of the Minister to be the Minister for Justice, Equality and Law Reform rather than the Minister for Education and Science. Consequential amendments are also proposed regarding the correct Minister being the Minister for Justice, Equality and Law Reform in the context of making regulations. The definition of a "victim" is extended to include persons who have suffered physical or emotional harm as a result of anti-social behaviour.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 199:

In page 25, before section 24, but in Part 4, to insert the following new section:

"122.—The following section is substituted for section 18 of the Act of 2001:

"18.—Unless the interests of society otherwise require and subject to this Part, any child who—

(a) has committed an offence, or

(b) has behaved anti-socially,

and who accepts responsibility for his or her criminal or anti-social behaviour shall be considered for admission to a diversion programme (in this Part referred to as the Programme) having the objective set out in section 19.".".

This is a consequential amendment to Part 4 of the 2001 Act, the introduction of behaviour orders. The amendment substitutes section 18 of the 2001 Act for the purpose of allowing a child who accepts that he or she has behaved anti-socially to be admitted to the diversion programme.

As I outlined to Deputies in my presentation, I was concerned that the spirit of the Children Act would be followed in the formulation of anti-social behaviour orders. In other words, that we would start tackling anti-social behaviour with the option of diversion and not the option of bringing the offender to court. What is before us in amendment No. 199 is the introduction of anti-social behaviour into the diversion programme. The juvenile liaison officers who administer the programme would deal with anti-social behaviour in that programme as well as the commission of an offence.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 200:

In page 25, before section 24, but in Part 4, to insert the following new section:

"123.—Section 19 of the Act of 2001 is amended by the substitution of the following subsection for subsection (1):

"(1) The objective of the Programme is to divert any child who accepts responsibility for his or her criminal or anti-social behaviour from committing further offences or engaging in further anti-social behaviour.".".

This amends section 19 of the 2001 Act, which sets out the objectives of the diversion programme, in order to expand those objectives. As with the last amendment, it sets out the fact that the diversion programme will now deal with anti-social behaviour by children.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 201:

In page 25, before section 24, but in Part 4, to insert the following new section:

"124.—Section 23 of the Act of 2001 is amended—

(a) in subsection (1), by the substitution of “Subject to subsection (6), a child” for “A child”,

(b) in subsections (1)(a), (4) and (5), the insertion of or anti-social after “criminal”,

(c) in subsection (1)(c), by the substitution of “is 10 years of age or over that age” for “is of or over the age of criminal responsibility”, and

(d) by the addition of the following subsection:

"(6) Notwithstanding subsection (1), a child aged 10 or 11 years shall be admitted to the Programme if—

(a) he or she accepts responsibility for his or her criminal behaviour, having had a reasonable opportunity to consult with his or her parents or guardian and obtained any legal advice sought by or on behalf of him or her, and

(b) subsections (2) to (5) apply in relation to the child.”.”.

This amendment also relates to the diversion programme and the age of criminal responsibility. When we enacted the 2001 Act it was provided for that the age of responsibility should be 12. On my appointment as Minister for State, I discovered that plans had been immediately put in place to remove the option of admitting persons under the age 12 to the diversion programme. One can only be admitted to the diversion programme if one engages in conduct which is a criminal offence. Bringing the age of responsibility to 12 means those under the age of 12 cannot be admitted to the diversion programme. Candidly, I was not happy with that. I agree that it is undesirable to charge anyone under the age of 12. However, there may be value in admitting ten or 11 year olds to a diversion programme. That is one of the modifications I propose to the existing proposals on the age of responsibility. For that reason, the amendment proposes a modification to the existing age of responsibility whereby ten and 11 year olds may be admitted to the Garda diversion programme.

Ms Lynch

I will try to tease out further some of the details relating to my earlier question. The amendment refers to "any legal advice sought by or on behalf of him or her". We are sick of hearing stories about parents who do not appear in court. If a child has been troublesome for many years, the child's parents, as well as the community, can begin to despair. However, that should not mean that a child should appear in court without legal advice. What provisions are proposed to address that?

Mr. B. Lenihan

It is intended that legal aid, as it is in criminal cases, will be available in respect of anti-social behaviour applications. We are discussing the diversion programme, which attempts to divert young offenders away from the criminal justice system. This amendment provides that where ten or 11 year olds engage in acts that would amount to criminal offences, they can be admitted to the diversion programme. They will not have committed offences and there would be no question of criminalising them. Nevertheless, if their misconduct is sufficiently serious, it is desirable, in some cases, that gardaí should engage with them. Clearly, it would be more appropriate for some of these children to engage with social workers but this amendment leaves open the option of Garda involvement. Therefore, the sight of the uniform is still a possibility for a ten or 11 year old. Without that option, a signal will be sent out that no ten or 11 year old will ever see a garda. I do not want that to be the case, which is why I tabled the amendment.

Ms Lynch

I am concerned about the type of advice available to children. An advocacy service, such as that which exists in the disability sector, would be desirable. It would have children's best interests at heart and would not necessarily focus on matters such as releasing them back into the community. I am not sure solicitors are trained to present cases in that way. We welcome solicitors when we are in need of them because they perform a valuable service but they are otherwise often thought of as bogeymen. I know it is not the subject matter of the amendment, but it is a matter that we should consider in the future when the service is being put in place.

Mr. B. Lenihan

Deputy Lynch is correct that the adversarial nature of criminal proceedings is not always in the best interests of a child. That is why the Children Court tends to follow a more informal procedure whereby, for example, its proceedings are not reported. Far fewer cases are contested in the Children Court and persons charged tend to own up to their misdeeds. I pay tribute to the many solicitors who work in the Children Court and who seek to engage the HSE and the probation service in a genuine discussion on children's needs. That is why we are including a section, to which we will come later, that will allow judges to seek the assistance of the HSE. That is very important because there is confusion in many courts at present. All the information should be outlined to the judge in order that he or she knows what options are available for a particular offender, and the matter is not treated exclusively in a criminal justice context.

Chairman

I wish to ask a simple question. We often hear about people going to the family of a gurrier who has been causing trouble only to be rebuffed by the child's parents. In their eyes, the child cannot do any wrong. The amendment states that a child will be admitted to the programme if "he or she accepts responsibility for his or her criminal behaviour, having had a reasonable opportunity to consult with his or her parents or guardian". If one consulted with the parents or guardians of some of the children I know who cause criminal damage, the children would be less likely to accept responsibility. What happens if such parents give a complainant the two fingers and refuse to accept responsibility?

Mr. B. Lenihan

The diversion programme was established to help those who accept responsibility. Failure to do so tends to necessitate going to court.

Chairman

Does the Minister of State mean that ten or 11 year olds will go to court?

Mr. B. Lenihan

No, a ten or 11 year old will not be charged. Their only option is diversion. The age of responsibility will commence three months after the enactment of this legislation.

Chairman

If they do not accept responsibility and are not admitted to the programme but cannot be charged, what is the alternative?

Mr. B. Lenihan

We decided that 12 should be the age of responsibility and we will implement that — we can not revisit it. If we do not adopt this amendment, a child will not even get a visit from a garda. It is a good idea to keep that option open for children in that age group.

Ms Lynch

A ten or 11 year old in that situation will probably continue on his or her merry way until reaching 12 in any event.

Chairman

Unfortunately, that is the case.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 202:

In page 25, before section 24, but in Part 4, to insert the following new section:

"125.—The following section is substituted for section 48 of the Act of 2001:

"48.—(1) Subject to subsection (2), no evidence shall be admissible in any court in respect of—

(a) any acceptance by a child of responsibility for criminal or anti-social behaviour in respect of which the child has been admitted to the Programme,

(b) that behaviour, or

(c) the child’s involvement in the Programme.

(2) Where a court is considering the sentence (if any) to be imposed in respect of an offence committed by a child after the child's admission to the Programme, the prosecution may inform it of any of the matters referred to in subsection (1).

(3) Subsection (2) applies, with the necessary modifications, in relation to a child who has attained the age of 18 years.".".

This amendment has occasioned some criticism. It has been in the Criminal Justice Bill 2004 from the very start. It proposes a new section, in substitution for section 48 of the Children Act 2001, concerning the admissibility of certain evidence. Section 48 provides that "in subsequent civil or criminal proceedings a child's admission to the diversion programme is not admissible." The fact that a child was admitted to the diversion programme cannot subsequently be raised in any court proceedings.

Deputy Lynch put forward the example of an offender who is admitted to the diversion programme and who, later in life, commits far more serious criminal offences that lead to a conviction in the Circuit Court. Under existing law, the fact that the person was admitted to the diversion programme is inadmissible and cannot be led in evidence. The policy was to allow the diversion programme to have its own confidential character. Part of the inducement for bringing the offender into the programme was that the issue would never be raised again. I have considerable sympathy with that policy but the Director of Public Prosecutions is unhappy with it. He maintains that he is obliged to disclose all material facts to the courts through his counsel and should not be precluded from doing so. The DPP says that if a person commits a subsequent offence, he and his counsel are put in the position of withholding full information on a child's history from the court passing sentence. Out of respect for the views of the Director of Public Prosecutions, the Minister decided to table this amendment.

The amendment has been criticised and accused of undermining the diversion programme but we must put it into context. If a person commits a very serious offence, the fact that, at some stage, he or she was admitted to the diversion programme is not a very important factor in the sentence the court decides to impose.

Mr. G. Murphy

This is a fundamental issue and one of natural justice. No crime has been committed by or proven against a person admitted to the diversion programme but this proposal will create a record of some description for him or her. That has been an overriding problem for me with the proposals relating to ASBOs. In that context, I do not see why the DPP considers it necessary to request the provision for future trials. That is a serious precedent to set.

Ms Lynch

How long is it intended to retain a record of this? I have major problems with regard to people who may be 36 or 40 applying for a PSV licence, for example, and being refused because they were caught shoplifting when they were 14. These people may have had an exceptional record, or no record, in the interim. It would make no difference if a person was 26 when the criminal offence was committed, but a part of the record would still be there to be considered. Will the record be kept until the person is 18, as it is part of what he or she was as a child? Will records be retained indefinitely?

Mr. B. Lenihan

As Deputy Gerard Murphy stated, admission to the diversion programme is an ambiguous act. There is an admission of responsibility. Other than the fact that the person is admitted, I would wonder how far matters would be carried. The difficulty identified by the Director of Public Prosecutions is that if a child subsequently commits a further offence, he and his counsel will be put in a position where a court passing sentence cannot be given full information regarding the history of the child. He may feel that he is misleading the court. The existence of the section makes the DPP very reluctant to give a consent to the application of the diversion programme in serious cases. Those are the difficulties which the director has in this regard.

With regard to information, a database is kept by the relevant juvenile liaison officer. The fact that a person has been admitted to the diversion programme does not in any way create a criminal record.

Ms Lynch

It creates a record.

Mr. B. Lenihan

There is a record.

Ms Lynch

For how long is that record retained?

Mr. B. Lenihan

I must obtain further information on this for the Deputy. As I understand the position, there are no strict rules in respect of this matter. There is simply a record, which a particular officer may or may not keep. The diversion programme does not deal with the commission of an offence. It deals with the diversion away from the criminal justice system and records on it are purely informal. They do not have a formal character and they do not establish a criminal record in respect of anyone.

Ms Lynch

As Deputy Gerard Murphy pointed out and as the Minister of State and I are aware, if a judge is dealing with a 17 and a half year old who has committed a serious offence and this is laid before him or her before sentencing, he or she will state that the youth has been trouble all his or her life. There may be no criminal offence recorded against the youth, but a record will exist. The Minister of State is indicating that if the youth accepts responsibility, he or she will be put into a diversion programme — these are good programmes — and in this way will be out of the legal framework. This is not so.

Mr. B. Lenihan

With this amendment, the person could be brought back in.

Chairman

With regard to ten and 11 year olds, who would have no compulsion to go in, would it be possible in subsection (2) to include a provision excepting people going into the programme under the subsection (6) referred to in the previous amendment? Otherwise, a ten or 11 year old should be told of the consequences of accepting responsibility and that, in the future, the child would know that the matter would be raised if a sentence was imposed.

Mr. B. Lenihan

Deputies have raised a number of interesting points and I will have a fresh look at the matter before Report Stage. It requires careful examination.

Aengus Ó Snodaigh

On the same point, if one accepts the age of criminal responsibility as 12, the consequences cannot be explained to a ten or 11 year old. It is being accepted that these people do not have the maturity to be responsible for their actions. Their entry to the diversion programme would be at the behest of the parents. If the current diversion programme is tinkered with, with a diversionary programme record — as opposed to a criminal record — being created, it will become tied to the youths under this system for at least the rest of their days as youths.

I have major difficulties with any interference with the current diversion programme because it has been so successful. If we interfere, will the programme become a block for those taking part in it at present? They may wonder what the point is and take their chances in the court. They might win, and if they do not, they may think that they at least will not be stuck going around with gardaí for a while. That is the attitude which will be taken.

There is peer pressure on young people taking part in the diversion programme not to engage fully. Thankfully, most of the youths resist this and the success rate of the diversion programme proves that it is welcome. Rather than placing obstacles in the way, we should try to extend and resource the programme more in order that we should not be obliged to deal with children under ASBOs. I am concerned about that, particularly in respect of the diversion programme.

From the attitude of the Minister and the manner in which he presented it, neither he nor his Department is wedded to the idea. It is at the behest of the Director of Public Prosecutions, who is clearly not always correct, as we have seen in the past week or so. He cannot always foresee what is coming down the tracks. We should spend more time on this aspect.

Not enough work was done in respect of this section with relevant groups, although we did receive a submission from the Irish Youth Justice Alliance. It raised serious concerns relating to this aspect of the diversion programme. Many other groups would have raised similar concerns if they were aware of the changes. The intricacies of this Bill, mainly as a result of its size and the way amendments were introduced, have not gone beyond this committee. It would be a retrograde step.

I suggest that we delete, at the very least, all these sections pertaining to the diversion programme. We should, on the basis of Deputy Gerard Murphy's comments, leave the programme as it stands. Involvement in the diversion programme should not be used in any future criminal proceedings and we should not extend the scope of the programme or Garda powers with regard to becoming involved in children's lives at that age to which reference has been made.

Mr. B. Lenihan

In his letter, the Director of Public Prosecutions mentioned the dreaded Constitution. We are discussing the admissibility of evidence with regard to involvement in the programme. He stated that this must be admissible in evidence. The Deputy has outlined concerns which have been echoed in some of the submissions made by the various interested groups that this could undermine the basis of the diversion programme. I will give fresh consideration to the matter before Report Stage.

Aengus Ó Snodaigh

It is not evidence; nothing is proven.

Mr. B. Lenihan

It is an informal record.

Mr. G. Murphy

Constitutionally, it could be the other way around. If a judge is hearing a case for the first time, he or she could decide to give the defendant an opportunity to enter some type of programme in order that the latter might extricate himself or herself from the circumstances in which he or she finds himself or herself. If the judge hears that a defendant messed up while partaking in a previous programme, he or she might decide that the defendant is not entitled to enter the new programme. It would prejudice judges in situations where crimes had not been committed.

Chairman

The Minister of State at the Department of Justice, Equality and Law Reform has taken on board the comments of the members and has stated that he will revisit this issue before Report Stage to see what can be done to address concerns relating to it. Can we agree this amendment on that basis?

Mr. G. Murphy

On the basis that it will come back on Report Stage?

Chairman

On the basis that the Minister of State will re-examine it for Report Stage, with any amendments members may wish to add.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 203:

In page 25, before section 24, but in Part 4, to insert the following new section:

"126.—The following section is substituted for section 49 of the Act of 2001:

"49.—(1) A child shall not be prosecuted for the criminal behaviour, or any related behaviour, in respect of which he or she has been admitted to the Programme.

(2) A child who has been admitted to the Programme in respect of anti-social behaviour shall not be the subject of an application for an order under section 257D in relation to any such behaviour which occurred prior to such an admission.".".

This amendment inserts a new subsection (2) into Section 49 of the 2001 Act regarding a bar to proceedings. Subsection (2) provides that an application for a behaviour order may not be sought in relation to anti-social behaviour for which a child has been admitted to the diversion programme. Once admitted to the diversion programme there is no court application.

Ms Lynch

The Minister of State must look at this alongside what went before, or perhaps this will be a substitute for what went before.

Mr. B. Lenihan

Yes.

Amendment agreed to.

Chairman

: Amendments Nos. 204 to 206, inclusive, and the amendments to them will be discussed together.

Mr. B. Lenihan

I move amendment No. 204:

In page 25, before section 24, but in Part 4, to insert the following new section:

"127.—The title to Part 5 of the Act of 2001 is amended by the substitution of "RESTRICTION ON CRIMINAL PROCEEDINGS AGAINST CERTAINCHILDREN" for "CRIMINAL RESPONSIBILITY".".

This is the substance of the issues relating to the age of responsibility that we have been discussing. I will first explain my amendments and then consider the amendments proposed by Deputies Ó Snodaigh and O'Keeffe, which I presume Deputy Murphy has adopted.

My amendments propose to ensure that the age of responsibility is 12 years, which was already provided for in Section 52 of the 2001 Act. It is reasonable to ask why it is necessary to repeal Section 52 and replace it with these amendments. It is first necessary to understand exactly what is meant by the expression "the age of criminal responsibility" before considering the amendments. There is confusion over its meaning which often leads to questions on why other countries have a far higher age of criminal responsibility than Ireland. The answer lies in different legal systems, in particular the difference between common law jurisdictions, such as Ireland, and civil law jurisdictions found throughout much of mainland Europe.

In Ireland the age of criminal responsibility means the age which determines capacity to commit an offence, that is, children under the age are deemed by law incapable of committing the offence and the offence is not available as a ground for intervention in relation to the child. This means there can be no intervention by any agency where a child's actions, but for his or her age, would constitute an offence unless the child is also in need of care and protection, in which case HSE intervention is possible. It is quite possible that such a child would be in need of care and protection and this is particularly the case with older children.

Before examining the proposals I want to complete my point regarding the different meanings attached to the age of responsibility. In many civil law systems in Europe the expression denotes an age at which punishment can be applied in respect of the commission of an offence, that is, children under the age may commit offences but are not punished for them through the criminal justice system, though the offence may be used as a ground for applying compulsory measures. Such compulsory measures can, and usually do, include detention. Such a system is not possible in Ireland, even if it were sought, because, under our constitutional system in the common law tradition, justice must be administered in courts established by law.

In effect, in continental countries with high ages of responsibility on paper, children are still detained, but under an administrative rather than a penal procedure. This explains how some countries can have relatively high ages of criminal responsibility and in others, like our own, this age is relatively lower. In the United Kingdom and Northern Ireland the age of criminal responsibility is ten years. Therefore, on enactment of this legislation, we will have a higher age of criminal responsibility than our neighbouring jurisdiction. When the new proposals come into operation, three months after the enactment of this legislation, Ireland will have an age of criminal responsibility that is higher than most common law countries.

Amendment No. 204 is technical and changes the heading to part 5 of the Act to reflect the new focus. Amendment No. 205 provides for a new section 52. It abolishes the common law rule under which a child under 14 years of age is presumed to be incapable of committing an offence. Currently, where the child is under seven years of age the presumption cannot be rebutted and between seven and 12 the presumption can be rebutted by evidence. I propose to replace this common law rule with statutory provisions which ensure, for almost all practical purposes, the charging with offences of children under 12 years of age. In addition, this amendment provides that a child between 12 and 14 years of age can only be charged with an offence with the consent of the Director of Public Prosecutions.

I have two reasons for proceeding in this manner. By accepting that a child under the age of criminal responsibility is capable of committing an offence it will be possible for State agencies to intervene with the child and his or her family, in particular to admit the child to the diversion programme if appropriate. By acknowledging that children are capable of committing offences, something that is self-evident, it will be possible to exclude from the statutory age of criminal responsibility the most serious offences. It is very rare, but not unheard of, for ten and 11 year olds to commit very serious offences and when this occurs the likelihood of criminal charges occurring is low. Other agencies, such as the HSE, would intervene with the child and his or her family.

It is important, however, that the State does not appear to undermine public confidence in its ability to respond in any reasonable way to very serious offences, even when the perpetrator may be ten or 11 years of age. This morning, of all mornings, we should be very conscious of this. When ministerial responsibilities were assigned to me regarding the implementation of this legislation I was concerned that I would be taking responsibility for overseeing a measure that would see that an 11 year old who killed someone could no longer be brought before the courts. The same would apply in cases of serious sex crimes. I have checked the matter with the DPP and happily in this jurisdiction, in recent times, there has not been a case where a ten or 11 year old killed someone. This happened in the UK in recent years and it was possible to charge the person because the age of responsibility there is ten.

On sex crimes there have been occasional serious cases in this jurisdiction involving 11 year olds. I do not believe that the public would be satisfied in such cases if the response of the State was to merely refer the case to a social worker. Of course social workers should be involved in supporting the child and his or her family, but the public would expect, at least, the court to pass a verdict in such a case. This is why I have to decided to recommend to this committee and the house that we modify the age of responsibility in very serious cases where a ten or 11 year old is involved. Such circumstances would be highly unusual but can happen and should be provided for in legislation.

It is unacceptable that a child who killed another child, or older person, continue as if nothing happened. In recent years legislation has recognised the gravity of rape and aggravated sexual assault and it is important that, in relation to the age of responsibility, these issues be addressed also. This may not be necessary very often but, as legislators, we must have regard for it.

No child under 12 years of age can be charged with an offence except in the case of the most serious offences in the statute book, where the option of charging ten and 11 year-olds is left open. I will list the precise offences involved because there is no question of any but the most serious offences being included within that section. They are murder, manslaughter, rape, rape under Section 4 of the Criminal Law (Rape) (Amendment) Act 1990 or aggravated sexual assault. The amendments would not apply to sexual assault.

This is the outline of the basic proposal. Included is the provision that no child under 14 years of age can be proceeded against without the consent of the DPP. As I mentioned, a child aged ten or 11 years of age can be admitted to the diversion programme, and must when the conditions for entry are fulfilled. There are various consequential amendments relating to the Garda and their obligations which essentially restate the existing law and adapt it.

Deputy Ó Snodaigh has tabled an amendment and I want to deal with it. The Deputy wants to raise the age of criminal responsibility in an unqualified way. He also wants to oblige the DPP to uphold the best interests of children aged 12 or 13 years of age when considering whether to prosecute. He is also anxious to retain the rebuttable presumption in regard to children aged seven to 14. However, if I can correct the Deputy's drafting, it is no longer seven to 14 but ten to 14. It was seven under the old common law rule, but we are all agreed we should move away from that. These are drafting problems.

On the substance, I have already addressed the various issues Deputy Ó Snodaigh raised in his amendment. There is one issue he raised which I am prepared to examine. I do not want to rehearse again the arguments I made in regard to the age of responsibility. I have outlined the nature of my proposal which is that for the vast majority of offences the age at which a person can be charged will not be below 12. I have explained the very limited exception for very serious offences. I have also explained the basis of continuing to permit admission to the diversion programme, and the control on prosecution which I propose to bring in through the Director of Public Prosecutions.

Deputy Ó Snodaigh suggests the DPP should be obliged to act in the best interests of the child. I have no doubt the DPP will, but it has not been traditional in statutory provisions to prescribe how the DPP should exercise his discretion and it would be an undesirable departure to do that. The DPP has to have regard to the public good in deciding whether to prosecute. He cannot decide to act instead in the best interests of a particular class of offender.

There is one final matter on which Deputy Ó Snodaigh's amendment touches which has troubled me, that is, that at present in common law we have a rebuttable presumption that the child is incapable of committing an offence up to the age of 14. In other words, at present the prosecution must demonstrate by evidence that the child had a criminal intent, if the child is under the age of 14. I have abolished that presumption. I am examining this issue in the light of what Deputy Ó Snodaigh has proposed. Some provision will have to be inserted in regard to the age and maturity of the child. I accept that it has to be a factor the court can take into account. I intend to bring forward a proposal on that issue because, while the control the DPP will exercise is a valuable safeguard — in some ways it is a more valuable safeguard than the existing presumption of doli incapax — the legal authorities suggest that particularly in the case of a 12 or 13 year old the presumption is rather weak in its application and judges and prosecutors have little regard for it. The United Nations has been very critical in its reports on the rights of a child of the operation of the presumption of doli incapax in common law jurisdictions. It argues that the presumption is weak and uncertain in application and that there is a huge diversity of practice by judges and prosecutors in regard to it. However, I still think that we cannot whittle down the existing protection for a child. If, as is envisaged under this legislation, we have a case involving a ten or 11 year old it would be very important in that context that the age and maturity of the child would be taken into account in deciding whether the child had criminal intent. I intend to bring forward a proposal to address that issue. It is an issue that was raised by many interested groups in their submissions. I am prepared to examine that aspect of Deputy Ó Snodaigh’s amendment.

Deputy Murphy proposed an amendment to raise the age of responsibility. He also raised in his amendment the need to retain the rebuttable presumption up to the age of 14. In other words, there must be some threshold in regard to criminal intent. I am prepared to examine the issue. There is an amendment which places the best interests of the child in the context of the reality of criminal proceedings and the various legitimate interests involved. That will go some way towards addressing the concerns raised here. However, I am open to examining the issue of the age and maturity of the child.

Aengus Ó Snodaigh

What is proposed here is a slight rowing back on what was in the Children Act in terms of the age of responsibility. The Minister mentioned serious crimes. Five are listed, but I could add to them.

Mr. B. Lenihan

I do not want to add to them.

Aengus Ó Snodaigh

I will not add to them. However, listing five crimes while leaving out crimes that are just as serious defies logic. Such crimes are obviously related, in the main because they are crimes of the most serious nature. In the Children Act the age of criminal responsibility is set at 12. Given the amount of work that went into it, it is strange that we are starting to row back on it. Others are also concerned about this. The central principles underlying the Children Act were prevention, diversion and restorative justice. This Bill rows back a little on that. We should not go down that road. I take on board the Minister's point and hope he will return with an amendment.

Mr. B. Lenihan

I will come back with an amendment on this. It is an important issue which has been raised by the Commission on Human Rights. I accept there is an issue to be addressed.

Aengus Ó Snodaigh

The duty of the Director of Public Prosecutions is to prosecute. Up to now his duties have not involved taking into consideration the best interests of those who are charged. It is only in cases where the person charged is under the age of 14 that I ask that the DPP take that on board when coming to a decision. I hope there will not be many such cases. Perhaps the DPP does not want additional responsibility. However, in this instance I believe he should have that added duty which means he would have to consult the Children Act and consider whether it is in the best interests of the child to be criminalised and brought into a justice system that is not guaranteed to provide the required supports and rehabilitation which they might otherwise be able to access if a judge or somebody else so directed.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 205:

In page 25, before section 24, but in Part 4, to insert the following new section:

"128.—The following section is substituted for section 52 of the Act of 2001:

"52.—(1) Subject to subsection (2), a child under 12 years of age shall not be charged with an offence.

(2) Subsection (1) does not apply to a child aged 10 or 11 years who is charged with murder, manslaughter, rape, rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 or aggravated sexual assault.

(3) The rebuttable presumption under any rule of law, namely, that a child who is not less than 7 but under 14 years of age is incapable of committing an offence because the child did not have the capacity to know that the act or omission concerned was wrong, is abolished.

(4) Where a child under 14 years of age is charged with an offence, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.".".

Amendments Nos. 1 and 2 to amendment No. 205 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 206:

In page 25, before section 24, but in Part 4, to insert the following new section:

"129.—Section 53 of the Act of 2001 is amended by the substitution of the following subsection for subsection (1):

"(1) Subject to subsections (2) and (3), where a member of the Garda Síochána has reasonable grounds for believing that a child under 12 years of age has committed an offence (except murder, manslaughter, rape, rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 or aggravated sexual assault), the member shall endeavour to take the child to the child's parent or guardian or arrange for another such member to do so.".".

Amendment No. 1 to amendment No. 206 not moved.

Amendment agreed to.

Sitting suspended at 10.49 a.m. and resumed at 11.08 a.m.

Mr. B. Lenihan

I move amendment No. 207:

"In page 25, before section 24, but in Part 4, to insert the following new section:

"130.—Section 59 of the Act of 2001 is amended by the substitution of the following subsection for subsection (4):

"(4) The Minister, with the agreement of the Minister for Health and Children, may issue guidelines in relation to the practical operation of this section.".".

This amendment is tabled by the Minister for Health and Children and me. It allows the Minister for Justice, Equality and Law Reform, with the consent of the Minister for Health and Children, to issue guidelines on the operation of section 59 of the 2001 Act under which the Health Service Executive is obliged to send a representative to a Garda station where a child is being held in custody but the member in charge of the station has reasonable cause to believe the child may be in need of care or protection.

Section 59 of the 2001 Act applies where a child has been arrested and the garda in charge of a station has reasonable cause to believe the child in custody may be in need of care and protection. It also sets out the procedure for notifying, and the attendance, of the Health Service Executive at the station. This section has not yet been brought into force.

There has been considerable discussion about the way we should go about implementing the section and it appears guidelines are required which would have a statutory force regarding the practical operation of the section. These guidelines would ensure the section would be operated in a consistent and effective manner by the gardaí and the HSE. This amendment will facilitate the introduction of section 59 in a consistent and effective manner.

Aengus Ó Snodaigh

In terms of guidelines, I am of the opinion, as in the case of the other sections we discussed, that such guidelines or regulations should be brought back before us, whether before this committee or the Dáil.

The operation of this section should come into effect as quickly as possible because I am aware of incidents where children have been detained rather than arrested because the parent was not contactable, and the attitude of the garda in the station was that he or she did not have any social workers' numbers and there was not a social worker on stand-by. If we are to go down that road, and I commend such a provision, we should do it as quickly as possible to ensure that a doctor or social worker is on call and this is approved by the Garda in order that he or she can attend at a station in the rare incidents this will arise.

Mr. B. Lenihan

I am anxious to commence this section. I encountered difficulties similar to those to which the Deputy referred. The current fourth subsection simply states that the representative of the health board who attends the station should be entitled to be present at the questioning of a child when an interview is being conducted but that is only one of a myriad of issues that must be addressed in this context. That is the reason I am replacing that with a broader section stating that there are guidelines and that the Minister has power to issue them. Otherwise, the various professional interests involved will not come to an agreed protocol. The ultimate power must be given to the Minister to designate a protocol that will enable this section to commence.

Amendment agreed to.

Chairman

Amendments Nos. 208 and 209 are related and may be discussed together, as well as amendment No. 1 to amendment No. 208.

Mr. B. Lenihan

I move amendment No. 208:

In page 25, before section 24, but in Part 4, to insert the following new section:

"131.—The following section is inserted in the Act of 2001 after section 76, but in Part 8:

"76A.—(1) In any criminal proceedings against a child the Court may exercise any of the following powers conferred on it by this Part, namely, power—

(a) under section 76B, to request the attendance of a representative of the Health Service Executive,

(b) under section 77, to direct the Health Service Executive to convene a family welfare conference in respect of the child and, pending its outcome, to make an emergency care order or a supervision order under the Act of 1991 in respect of the child; or

(c) under section 78, to direct the probation and welfare service to arrange for the convening of a family conference in respect of the child.

(2) Subsection (1) is without prejudice to the power of the Court to deal with the case in any other way if it is satisfied that to do so would be in the interests of justice.".".

This amendment in my name introduces a new section into the 2001 Act, section 76A, bringing together the options open to the court when a child is brought before it charged with an offence. The court's options under sections 77 and 78 and its general options are part of the 2001 Act. This first amendment refers to one new option being given to the court, and that option is set out in the second amendment, a new section 76B.

This section introduces a procedure under which the Health Service Executive can be directed by the court to produce a representative before the court at resumed proceedings. The court can then hear the views of the HSE on the likely causes of the child offending and can come to a conclusion on how best to deal with the child before it. If the court decides not to proceed with the criminal charges, the HSE can, where appropriate, exercise its powers under the Child Care Act. This is a new power which is being given to the court and is in line with the policy of the Children Act 2001, to provide as wide a range of options as possible to the courts, both when a young person appears before it on a criminal charge and when a young person is found guilty of an offence. Accordingly, these amendments not only clarify in one provision the options open to the court when a young person appears before it on a criminal charge but also provide the court with a new option.

If Deputies examine the existing section 77 they may understand what I am proposing. The existing sections 77 and 78 enable a court, of its own motion, to adjourn proceedings and direct a health board, or the HSE as adapted, to convene a family welfare conference. Section 77 contains that option already. We have made substantial progress on conferencing and that process is beginning to take place in the case of particular offenders in particular contexts but it is the only option for engagement with the HSE in the current legislation. It is an option which would require a huge amount of planning and investment. The implementation of that section will be, in all probability, the last element of the Children Act to be implemented. It will happen. It is happening in practice but to implement it legally and to say that the court can direct a family welfare conference in every case would require a huge investment in resources and infrastructure. I discussed the matter with the New Zealand authorities which pioneered the idea of family welfare conferencing and they now conduct over 50,000 conferences a year in their legal system. I mention that to Deputies to ensure they understand the sheer scale of the full implementation of section 77.

We need the option of requiring the HSE to ensure that a representative appears in court and we need to ensure that happens now. Such a requirement cannot be deferred until 50,000 family welfare conferences are conducted here. That is the reason I have brought this additional option into the equation. I presume it will be implemented rapidly on the enactment of the legislation.

There is a degree of difficulty, particularly in the Children Court in the Dublin metropolitan area, about the attendance of Health Service Executive officers. It is important that the court has the option to secure their attendance in order that it can know what options there are for the child.

I did not deal with Deputy Ó Snodaigh's amendment. If he wishes to move it, I will respond to it. The Deputy's amendment would oblige the court to act in the child's best interests. This brings us back to the argument that under the juvenile justice system, the youth justice system, there are competing interests in terms of the victim and the child. A phrase such as the one proposed cannot be inserted in legislation. The DPP and courts have the child's best interests at heart but there is also the matter of the victim. If we legislate for the proposition that the child's best interests must be taken into account in a youth justice context, we open the possibility of a judicial review cancelling a prosecution or a judicial determination on the basis that it was not in the child's best interests. I would be wary of legislating along the lines Deputy Ó Snodaigh is advocating, although I understand the reason he tabled the amendment.

Aengus Ó Snodaigh

The reasoning behind this amendment is, as the Minister of State indicated, to ensure that the child's best interests are taken on board and to ensure we comply with Article 3 of the UN Convention on the Rights of the Child. I accept there are conflicting interests but, notwithstanding them, in the case of a judgment against a child, the judge would have to take the interests of the child into account in determining the sentence. The amendment is to ensure that is done and is not forgotten about.

Amendment No. 1 to amendment No. 208 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 209:

In page 25, before section 24, but in Part 4, to insert the following new section:

"132.—The following section is inserted in the Act of 2001 after section 76A:

"76B.—(1) Where—

(a) a child who is charged with an offence is remanded on bail, and

(b) it appears to the Court that the Health Service Executive may be of assistance to it in dealing with the case, the Court may request the Executive to be represented in the proceedings.

(2) The request shall be made at least one week before the date of the resumption of the proceedings concerned.

(3) If, having heard the Health Service Executive's representative, the Court dismisses the case against the child on its merits, the Health Service Executive shall, where appropriate, exercise its powers under the Act of 1991 in relation to the child.".".

I flag that I will table an amendment on Report Stage in regard to the HSE to make the option more flexible. In the proposed amendment, Deputies will notice that the requirement that the Heath Service Executive attends the court is limited to an offender who is remanded on bail. Clearly, it should also apply to an offender remanded in custody. On Report Stage an amendment will be required in that context.

Amendment agreed to.

Chairman

Amendment No. 210 and amendments Nos. 1 and 2 to amendment No. 210 will be discussed together.

Mr. B. Lenihan

I move amendment No. 210:

In page 25, before section 24, but in Part 4, to insert the following new section:

"133.—The following section is substituted for section 88 of the Act of 2001:

"88.—(1) Where the Court decides to remand in custody a child—

(a) who is charged with or found guilty of one or more offences,

(b) who is being sent forward for trial, or

(c) in respect of whom the court has postponed a decision,

the following provisions of this section shall apply in relation to the child.

(2) The child shall be remanded to a place designated under this section as a remand centre.

(3) The Court shall explain the reasons for its decision in open court in language that is appropriate to the child's age and level of understanding.

(4) The Minister may by order designate as a remand centre any place, including part of a children detention school, which in the Minister's opinion is suitable for the custody of children who are remanded in custody under this section.

(5) The designation shall specify the sex and age of children who may be remanded to the remand centre concerned at any time.

(6) The Minister shall cause a copy of any order under this section to be sent to the President of the High Court, the President of the Circuit Court and the President of the District Court.

(7) A place may be designated as a remand centre only with the consent of its owners or, as the case may be, its managers.

(8) Where a remand centre is part of a children detention school, children remanded in custody to the centre shall, as far as practicable and where it is in the interests of the child, be kept separate from and not be allowed to associate with children in respect of whom a period of detention has been imposed.

(9) Where a remand centre is not part of a children detention school, the Minister shall appoint a board of management appointed to a children detention school under section 164 to manage the remand centre also in accordance with criteria laid down from time to time by the Minister.

(10) The Court shall not remand a child in custody under this section if the only reason for doing so is that the child is in need of care or protection.

(11) Such matters as may be necessary or expedient for enabling remand centres to operate and be administered in accordance with this Act may be prescribed by the Minister.

(12) Notwithstanding the provisions of this section, males aged 16 or 17 years mentioned in subsection (1) may be remanded to Saint Patrick's Institution until places in a remand centre are available for males in that age group.

(13) A child remanded in custody to Saint Patrick's Institution may be transferred by the Minister to a remand centre.".".

The amendment substitutes a new section 88 for the existing section 88 of the 2001 Act. It sets out the conditions under which a child can be remanded in custody. This amendment is the amendment which removes the distinction between remand centres for 16 and 17 year olds and junior remand centres for under 16 year olds. It also provides a transitional provision under which 16 and 17 year old males can be remanded in St. Patrick's Institution until places in a remand centre are available.

Essentially, Deputy Ó Snodaigh's amendments seek to delete this transitional provision such that we would have nowhere to detain such persons and to amend subsection (8) to exclude the possibility of children on remand associating with detained children where such association would be in the best interests of the child.

This amendment is an inevitable consequence of the decision to repeal references to child detention centres and to have a unified detention policy for young offenders. As I outlined earlier, when the 2001 Act was being prepared, it was intended that children aged 16 and 17 years of age would be remanded in remand centres operated by the Department of Justice, Equality and Law Reform and children aged under 16 would be remanded in what were to be called junior remand centres operated by the Department of Education and Science. In parallel with the proposed unified responsibility for the detention of all children, I am proposing that all young persons under 18 years of age remanded in custody by the courts would be remanded to remand centres, the responsibility for which will be with the new Youth Justice Service.

The remand centre under section 88 that would have applied to 16 and 17 year olds could have been part of a detention centre and the detention centre, under another section of the Act, could have been part of a prison. In effect, it was envisaged in 2001 that we could develop separate facilities within a prison complex for 16 and 17 year olds. We have moved away from that and are providing in the amendments that the child detention school covers all. This provision is ancillary to that in the context of remand cases.

At present, 16 and 17 year old males remanded in custody are held mainly, but not exclusively, at St. Patrick's Institution. Females can be held in the Dóchas centre, which is undesirable in the case of a person under 18 years of age. Even though the number of 16 and 17 year old males held on remand in custody is relatively small, the existing remand facilities for under 16s could not cope with admitting the older youths. There must, therefore, be a transitional provision whereby 16 and 17 year olds will continue to be remanded in St. Patrick's Institution until places are available for them in proper remand centres.

It is not necessary to provide a similar transitional provision for females. Any 16 or 17 year old female on remand in custody can be held at Oberstown Girls Centre after the enactment of this legislation and its commencement.

Aengus Ó Snodaigh

I move amendment No. 1 to amendment No. 210:

In the inserted section 88, to delete subsection (12).

I tabled two amendments. One seeks to ensure that St. Patrick's Institution is removed. The Minister says there will be nowhere thereafter but St. Patrick's Institution is well past its sell-by date, if it ever had one. I recently talked to people who have worked there. They are concerned about its continued use as any type of detention centre but particularly for young people of 16 and 17 years old. It is contrary to universal human rights provisions and accepted child protection guidelines that anybody would be remanded in that institution. The Inspector of Prisons and Places of Detention and the Council of Europe committee on the prevention of torture have said it should not be used.

Ten years ago the Whitaker report on St. Patrick's Institution stated rehabilitation was not possible as the physical and environmental conditions were such as to nullify any personal development programmes and the facilities and services required could not be provided even in a renovated St. Patrick's. That was ten years ago but we do not have a new institution or the detention centre the Minister mentioned. We are providing in the legislation that children can be remanded to that building in the future, despite the flaws I have mentioned.

The other amendment seeks to ensure children on remand are detained separate from children with criminal records. That is something we should aspire to even within the general prison population. People who are on remand and are not convicted should have different detention arrangements, although not fewer restrictions. If somebody requires to be detained while on remand, the normal bail conditions are being complied with. However, the preference, obviously, is to grant bail if possible on the basis that the person is innocent until proven guilty.

Chairman

We must finish.

Aengus Ó Snodaigh

That is all I wish to say.

Ms Lynch

Some years ago the Law Reform Commission made recommendations regarding separate remand centres for all categories because there is a difficulty with accommodating people who are remanded in custody and people who have been convicted. What is the timescale for this? Where is the building programme? Will Shanganagh or Spike Island be used? Will we be back here in five years, with any luck, asking again when this will start?

Mr. B. Lenihan

I can respond to the points raised.

Chairman

Do you have time to do so? I am aware you have other engagements.

Mr. B. Lenihan

There is another engagement at 11.30 a.m. but I will deal with the points. I am anxious to keep the record unified. With regard to Deputy Ó Snodaigh's amendment which seeks to amend subsection (8) of the substituted section 88 relating to young persons on remand associating with detained young persons where it is in the interests of the young person concerned, this is not a new provision. It was in subsections (11) and (12) of section 88 of the 2001 Act. It was included in that Act and is now being re-enacted for a good reason.

There are circumstances where it would be in a young person's interest to be allowed to associate in a controlled and managed way with detained young persons or, at least, with selected detained young persons where that is practical and desirable. In this jurisdiction, for example, it is not unusual for just one young female to be detained at any one time. To dismiss the possibility of association would be to condemn that person to solitary confinement, an unwanted consequence of the Deputy's amendment. I am sure he did not intend that consequence. International rules, particularly those from the Council of Europe, are more relaxed on the question of association than previously. For those reasons, I will not accept Deputy Ó Snodaigh's proposed amendment.

The timescale for the building programme envisaged is 2010. Associated with the negotiations which led to the establishment of the Youth Justice Service, there was a detailed negotiation between the Department of Education and Science and the Department of Justice, Equality and Law Reform. The relevant capital funds have been committed for the building programme, which will ensure we have proper, modern, up-to-date detention facilities for those unfortunate cases when they are required. The relevant sites will be acquired by the Department of Justice, Equality and Law Reform. They are currently in the care of the Department of Education and Science at Finglas and Oberstown.

With regard to St. Patrick's Institution, the key to this legislation is Part 9 of the Bill which sets out the community sanctions and the new forms of detention that can be applied to an offender. Currently, we are still operating under the 1908 Act with regard to detentional court orders. If we do not have a transitional provision relating to St. Patrick's Institution, it will mean deferring the commencement of Part 9 of the Bill for a substantial period. I want section 9 to be commenced. I want an end to imprisonment of persons under 18 years of age and I want the community sanctions to be commenced. We are beginning to do that.

I am anxious the new detention provisions are implemented. Unless there is a transitional period provision for St. Patrick's Institution, none of that can happen. When dealing with detention and sanctioning provisions, one cannot operate partly under the 1908 Act and partly under the 2001 Act. We must commence this legislation and that is the reason the transitional provision is included.

The building programme's target date is 2010. As the necessary funds have been secured in negotiations between the Departments, that will go ahead. That is the reason for the transitional provision. Like it or not, there is nowhere else to detain a 16 or 17 year old male at present. The new wing that was constructed at St. Patrick's Institution, on foot of a Government decision arrived at in April 2002, which provided for 48 places separate from the rest of the facility, will be used for 16 and 17 year olds. That is how we will try to address the issue practically in the interim. At least, it is a modern block within that institution. We have started moving 16 and 17 year old people in there. Therefore, even in advance of the final implementation of the child detention school concept we have already moved as far as possible on having dedicated facilities for 16 and 17 year old people at St. Patrick's Institution. In general — as a matter of policy, not as a matter of law — they will not associate with persons over the age of 18.

Chairman

Is Deputy Ó Snodaigh pressing his amendment?

Aengus Ó Snodaigh

No. I will resubmit it.

Amendment to amendment, by leave, withdrawn.

Amendment No. 2 to amendment No. 210 not moved.

Amendment agreed to.

Chairman

Before we adjourn, I thank the Minister of State and his officials for attending. I also thank members of the committee for their attention. The select committee is due to resume its deliberations on the Bill on 6 and 7 June. Our next meeting will be on Tuesday, 6 June at 2 p.m. to continue our consideration of Parts 12 and 13 of the Bill and related amendments.

The select committee went into private session at 11.31 a.m. and adjourned at 11.33 a.m. until 2 p.m. on Tuesday, 6 June 2006.