SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Wednesday, 7 Jun 2006

Criminal Justice Bill 2004: Committee Stage (Resumed).

Chairman

I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, and his officials to the meeting, the purpose of which is to resume consideration of Committee Stage of the Criminal Justice Bill 2004. Is it agreed that we will adjourn at 2 p.m.? Agreed. At the previous meeting the committee concluded its consideration of amendment No. 210. As we hope to finish Parts 12 and 13 of the Bill today, we will deal with amendments Nos. 210a to 239, inclusive.

NEW SECTIONS.

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

I move amendment No. 210a:

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

"133A.—Section 96 of the Act of 2001 is amended by the substitution of the following subsection for subsection 5:

"(5) When dealing with a child charged with an offence, a court shall have due regard to the child's best interests, the interests of the victim of the offence and the protection of society.".".

I am proposing this amendment to section 96 of the Children Act 2001 to meet arguments raised in the debate about putting forward the best interests of children in criminal proceedings. The starting point for the amendment is section 96 of the Children Act which describes the powers of the courts in respect of child offenders and sets out general principles relating to the exercise of criminal jurisdiction over children. Subsection (5) states any measures for dealing with offending children shall have due regard to the interests of any victims of the offending.

When I dealt with earlier amendments, I spoke about the reasons the best interests of the child could not be paramount in youth justice proceedings, in contrast to care or protection proceedings. I was impressed by the amendments tabled on this issue and the views of the Human Rights Commission and the Ombudsman for Children, both of whom invited me to review the 2001 Act to see if the interests of the child could be better expressed in this legislation. I have reached the conclusion that the most appropriate way to meet the valid points made would be to delete section 96(5) and replace it with a more balanced provision which will oblige the court, when dealing with a child, to have due regard to his or her best interests, the victim and society. In this way the rights of the victim will not be overlooked and the need to protect society will also be considered. I am satisfied that the amendment will ensure the best interests of the child will be a primary consideration in youth justice proceedings and recommend its acceptance by the committee.

Ms Lynch

I understand there are competing rights and accept the Minister of State's argument in that regard. The difficulty is, however, that children will be dealt with in the criminal justice system in respect of offences committed under this legislation. Like the Ombudsman for Children, I am concerned that the Minister is not looking at the full picture. It is often said that the question that should be asked when one encounters two 11 year old children, one of whom is behaving badly and the other is not, is: what happened to the child who is behaving badly? At what point will the State intervene to prevent children entering the criminal justice system? Is the only solution we are offering, compassionate though it is, being offered through the criminal justice system, even taking account of the fact that there are competing rights? What else are we doing to assist and address factors such as the environmental impact which has brought the child to a particular point? As many girls as boys enter the criminal justice system at a young age. What is being done by way of rehabilitation and so on, or is the State simply not interested?

Deputy F. McGrath

I welcome the amendment which strikes a balance between the rights of the child and those of the victim. It is important when drafting legislation dealing with children's rights to ensure we use language appropriate to their age and so on. We must get this right if we are to protect the rights of children who may have an intellectual disability.

Mr. B. Lenihan

I thank Deputy McGrath for supporting the amendment which seeks to strike a balance in a section which deals with situations where the criminal route has been followed. A balance must be struck between the rights of the victim, society and the child or young person before the courts.

On Deputy Lynch's point regarding the youth justice system, we are, in a sense, discussing the entire philosophy of the Act. It is an issue worth discussing. The first port of call in the youth justice system must be the diversion scheme, the purpose of which is to divert young people away from the courts. Unfortunately, as members are aware, persistent offenders will eventually end up before the courts. We have provided that the age of responsibility is 12 years, subject to limited exceptions, as discussed on the last occasion. We have also provided — I was glad to receive the support of members — that the Director of Public Prosecutions will have total control over all prosecutions of persons under 14 years of age and addressed issues relating to youths brought before the Children Court which under the legislation has its own distinctive procedures and jurisdiction. When a youth is brought before the District Court, it is obvious matters have reached a serious pass that intervention is required. We have provided that where this happens the court can require a representative of the Health Service Executive to attend. We are thus ensuring care options are included in the Bill, something I was anxious to provide for, as I stated on the last occasion.

Deputy Lynch raised important questions which give me the opportunity to explain a section which has not been commented upon much in public but which has already been commenced. Section 78 provides, where a charge is made and the child accepts responsibility for his or her behaviour, that the court can request the probation and welfare service to convene a family welfare conference for the purpose of formulating an action plan for him or her. This is an important section which provides the offender with a final opportunity to meet the probation and welfare service through a family conference. The proceedings are then adjourned until after the conference has been held. This option is available in the District Court and to facilitate it additional probation and welfare staff have been recruited. When all of these stages have been exhausted and the court believes it must make a finding, the range of sanctions envisaged in the 2001 Act comes into play.

Many have commented on the importance of community sanctions. Arising from our deliberations, I will be a position to commence the bulk of the sanction provisions in the 2001 Act which provide the courts with flexibility in determining what sanctions will best assist in the rehabilitation of an offender. It is important that we invest in the development of community sanctions. The experience of the probation and welfare service, through conferencing, is of assistance to us in sifting through the appropriate sanctions, in which we must invest if we are to ensure a tailored response to an offender's needs.

I must take issue on one point with Deputy Lynch who is a little hard on her own gender. I regret to say that the experience is that the vast majority of offenders who eventually end up before the courts on criminal charges are males, although I agree many young females do get into difficulty. The HSE has made a substantial investment in special care and high support facilities. While some permanent residential centres contain females, they are not criminal or youth justice facilities. The bulk of youths against whom findings are made are males.

Ms Lynch

I have one further question. Am I correct in saying section 78 takes effect after the Probation Act has been applied by the courts?

Mr. B. Lenihan

No, it is a pre-conviction option.

The Deputy was concerned that we were fast-tracking children through the criminal courts system. Where a child is charged with an offence and accepts responsibility for his or her behaviour, the court may charge that an action plan be formulated at a family conference. Where a child, his or her parents or guardian, members of his or her family or a relative can make a positive contribution, the court may direct the probation and welfare service to convene a family conference and adjourn the proceedings.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 211:

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

"134.—The Act of 2001 is amended by the substitution of "Director of the Probation and Welfare Service" for "principal probation and welfare officer" in sections 79, 87, 106(5), 118(3), 118(4), 124(4), 125(4), 126(4), 126(5), 141(2)(b), 207(1), 207(7), 208(1), 208(4), 209, 230(3)(e), 262(1), 262(2) and 262(3).".

This is a technical amendment which reflects the change in title of the head of the probation and welfare service from principal probation and welfare officer to director of the probation and welfare service.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 212:

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

"135.—Section 91 of the Act of 2001 is amended—

(a) in subsection (1)—

(i) by the deletion of "or" in paragraph (b),

(ii) by the substitution of "subject, or" for "subject." in paragraph (c), and

(iii) by the insertion of the following paragraph after paragraph (c):

"(d) under section 257D.”,

and

(b) in subsection (4), by the insertion of “or under section 257D” after “charged”.”.

This amendment makes changes to section 91 of the 2001 Act which provides for the attendance of parents or guardians in court. The changes proposed seek to extend the attendance requirement to court proceedings relating to anti-social behaviour which arise under the proposed new part of the Children Act dealing with anti-social behaviour orders.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 213:

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

"136.—The following section is substituted for section 93 of the Act of 2001:

"93.—(1) In relation to proceedings before any court concerning a child—

(a) no report which reveals the name, address or school of any child concerned in the proceedings or includes any particulars likely to lead to the identification of any such child shall be published or included in a broadcast or any other form of communication, and

(b) no still or moving picture of or including any such child or which is likely to lead to his or her identification shall be so published or included.

(2) A court may dispense, in whole or in part, with the requirements of this section in relation to a child if satisfied that to do so is necessary—

(a) to avoid injustice to the child,

(b) where the child is unlawfully at large, for the purpose of apprehending the child,

(c) in the public interest, or

(d) where the child is the subject of an order under section 257D, to ensure that the order is complied with.

(3) Where a court dispenses with any requirements of this section, it shall explain in open court the reasons for its decision.

(4) Subsections (3) to (6) of section 51 of this Act shall apply, with the necessary modifications, to matters published or included in a broadcast or other form of communication in contravention of subsection (1).

(5) This section shall apply in relation to proceedings on appeal from a court, including proceedings by way of case stated.

(6) This section shall not affect the provisions of any enactment concerning the anonymity of an accused or the law relating to contempt of court.".".

This is an issue of some interest and at which we looked with special care. It relates to publicity and restrictions on the reporting of court proceedings involving children. As Deputies are well aware, the general constitutional presumption is that justice should be administered in public in open court. Great care is, therefore, required in evaluating any restriction on the public aspect of certain proceedings such as those set out in the 2001 Act. Currently, no report may be published or included in a broadcast which reveals the name, address or school of a child against whom court proceedings obtain or includes particulars likely to lead to the identification of a child concerned in the proceedings. No picture may be published or included in a broadcast which is likely to lead to the identification of a child concerned in the proceedings. However, the court has discretion to dispense with the requirements of the section, where necessary, to avoid an injustice to a child or for the purpose of apprehending a child.

The 2001 Act placed a significant restriction on the reporting of proceedings in the Children Court but the failure to extend it to proceedings in the higher courts has caused confusion. Where a young offender of 16 or 17 years is brought before the Circuit Court in respect of a more serious offence, for example, the restriction does not apply to proceedings. It is important, therefore, to clarify the rules governing the reporting of proceedings and align them in all courts. The position must also be dealt with as it relates to behaviour orders for children. Concerns have been expressed on foot of experience in England where orders have been applied for in every court, including magistrates courts, where full publicity attaches to court proceedings. Pictures of young persons subject to orders have been published in the mass media. I raised these concerns with the Minister, Deputy McDowell, when he mooted the idea of anti-social behaviour orders as it would not be desirable for that state of affairs to obtain here.

When the 2001 Act was being discussed, the extent to which reporting of proceedings concerning children should be allowed demanded that a fine balance be struck. It was finally decided to legislate for restrictive rules on the reporting of proceedings in the Children Court and to remain silent on the higher courts. I have decided to allow reporting where the courts conclude that it is required in the public interest and to apply the new provision and existing provisions to all courts, thereby extending the current dispensation. While I do not want to enter a debate on what constitutes the "public interest" as that will be a matter for the courts to decide, decisions must be made in the context of the definition of children as persons under 18 years of age and the seriousness of the crimes and anti-social behaviour in which they may have become involved. While we must extend the protections offered by the Children Act to apply the restrictions to court proceedings involving criminal charges generally against young persons under the age of 18 years, there are public interest grounds on which the court will be able to waive the restriction written into the legislation. Therefore, I do not propose an absolute ban. It is a finely balanced provision, on which members may have views. If they do, I look forward to hearing them.

It is necessary to allow for limited disclosure of the identity of a young person against whom a behaviour order will be imposed. This level of disclosure is restricted to such reporting as is necessary to ensure compliance with an order. If a behaviour order is imposed on a young person who has been intimidating a neighbour or whose activities have caused fear or distress among a number of persons, little will be achieved unless those persons are aware of the granting of the order. Unless they know, they will not know whether it is being observed. To ensure compliance by young persons with behaviour orders, it is necessary for the court to have the option of lifting reporting restrictions in whole or in part.

Deputy Ó Snodaigh seeks in his amendments to provide that no court, whether the Children Court or a higher court, may dispense with the restriction on reporting requirements except where it is permissible to do so under the 2001 Act. In certain circumstances it may be in everyone's interest for the court to dispense with anonymity provisions where a young person has been convicted of a serious offence or to ensure compliance with a behaviour order. As in other areas, it is crucial to strike the correct balance which I do not accept the 2001 legislation achieved. My proposal adopts a more balanced approach, although I look forward to hearing the views of Deputies on it.

Aengus Ó Snodaigh

I move amendment No. 1 to amendment No. 213:

In the inserted section 93, subsection (2), to delete paragraphs (c) and (d).

The Minister of State has captured the intention of my amendments, which is to maintain the provisions set out in the Children Act 2001 which prohibits the reporting of personal information which might lead to the identification of a child facing criminal proceedings. However, he proposes to eliminate those protections to allow the courts to make a decision as to when the identification of a child may be allowed in the media. His proposal is contrary to Article 40 of the Convention on the Rights of the Child which recognises the absolute right of a child to have his or her privacy protected at all stages in court proceedings. It also contravenes section 8 of the Beijing rules which stresses the need to protect the privacy of young offenders and prohibits the publication of information which might lead to the identification a child.

The Minister of State's proposal gives rise to a variety of child protection concerns, which is one of the reasons I have tabled my amendment which would allow the identification of a child unlawfully at large to facilitate his or her apprehension and to avoid an injustice against a child. In this context, at pages 13 and 14, the submission of the Irish Youth Justice Alliance raised a number of points. The alliance referred to Article 40 of the Convention on the Rights of the Child and stated in respect of the Beijing rules that the attached commentary explained the importance of protecting juveniles from stigmatisation and the detrimental effects of permanent identification as criminals. It states Article 6 of the European Convention on Human Rights provides that the press and public may be excluded from all or part of a trial where required in the interests of juveniles. Its submission represents a clear recognition of the negative impact publicity may have on the rights of juveniles. In this regard, it referred to the case of those convicted of the murder of Jamie Bulger in England and the lifelong injunction to protect their privacy on foot of a recognition in Britain of the damage which had been caused by the furore and publicity surrounding the case. It was recognised that, having served the sentence handed down by the court, they had paid their debt to society. The release of information to the public revealing the identity of a young person convicted of a crime runs counter to Ireland's international obligations. I have indicated some of the international standards it breaches.

I am particularly concerned that the identities of children against whom an ASBO will be made should not be revealed because in such cases the behaviour in question is not criminal, although breaching the order will be. Care needs to be taken because naming and shaming children against whom an ASBO will be made could place them at risk. There is a slight logic to the Minister's statement that not identifying a child against whom an ASBO will be made would make it impracticable if the Garda or the neighbour who made the initial complaint did not know about it. There is logic to informing them to ensure there will be no further breaches. However, the neighbour could be requested to report to the Garda if he or she sees any further activity of the sort that gave rise to the complaint, without specifically informing him or her about the ASBO. I accept that the superintendent and gardaí within a station will be aware of it because they will have to give evidence but to specifically set out to identify children in the first instance would be dangerous because it could lead to bullying and other punishment by the community. We need to be careful not to set up young children for such sanctions, even though they have broken the law or will have breached an initial order. The Children Act provides that the child's interests are paramount. We are talking about his or her future. We do not want to stigmatise children of 13 or 14 years who have committed an offence. We want to ensure that when they want to find work locally or access services, their past will not be revisited time and again. In dealing with children, in particular, we should ensure their future is paramount. In this instance, rehabilitation, rather than punitive sanctions, should be the priority.

Mr. G. Murphy

I welcome the new section which establishes a reasonable balance between the constitutional obligation to see justice done in public and the rights of children. However, I have reservations regarding the publication of the identity of a person against whom an ASBO will be made. We have discussed the problem of creating a record where a criminal offence has not been committed. Under this section, while no criminal offence will be committed, there will be a general public accusation and the person concerned will be seen to be criminalised, at least by a certain section of the public. In that context, I would like the section to be re-examined.

Mr. F. McGrath

I share Deputy Ó Snodaigh's concern. When the United Nations and many children's groups raise issues regarding the rights of the child, we have an obligation to listen. Paragraphs (a) and (b) of the amendment are reasonable and balanced and I would go along with them. However, I am concerned about paragraphs (c) and (d) and support the proposal that they be deleted.

There is a broader issue in the amendment which relates to how the media report crime and cases involving children. Their record in the past ten or 15 years has been appalling. I am very concerned that certain sections have behaved in a negative and disgraceful manner. That is why I support paragraphs (a) and (b) which will place restrictions on reports on proceedings where children are concerned. It is very important that we focus on the issue of children.

It is important to draw a distinction between young children and older teenagers. I am aware there is a grey area on the issue of age. We need to recognise that children between the ages of five and 12 years do things that they will never do in their lives again. It is important, therefore, not to label or stigmatise them, as people change very rapidly. In the end, 90% of children will move in the right direction, even when it appears they have gone off the rails. We all did things as children. Nobody is squeaky clean. As somebody who worked with children for 20 years——

Chairman

The Deputy should use the singular. He should speak for himself on these matters.

Mr. F. McGrath

It is very important that we are not dragged into stigmatising children. I support paragraphs (a) and (b). However, I also sympathise with Deputy Ó Snodaigh in his amendments.

Ms Lynch

I agree with Deputy McGrath on his last point that most children who are troublesome when they are young become fully functioning adults. It can be difficult to provide for it in law but we need to exercise common sense. We also need to realise that society does not hold a grudge against errant children. We all know the young lad who broke our hearts when he was growing up but when we meet him in the street, we stop and have a conversation with him. People recognise that children move on.

I am probably more protective of children than most. However, having debated how to divert them away from behaving badly, it must be recognised that we are talking about young people who in most instances have terrorised neighbourhoods. All public representatives have received telephone calls from elderly persons living on their own who are afraid to come outside their door at night. We are not talking about the threat of bodily endangerment but about young lads hanging around, kicking a ball against people's windows or against their front door, scooting past them on their bicycles when they should be on the road, making noise, staying out until all hours of the night with no parental control. It is those in communities who are different — by way of colour, ability, gender and being quiet — and who do not fit the norm who are picked on and their lives can be made miserable. However, there is no point in bringing young lads to court, having a sanction imposed and not telling the people concerned about it. Surely, they should be able to say the law works for them also. When a child reaches the age of 17 or 18 years, will the relevant file be shredded? Unless it is a serious case, by which I mean one similar to the Jamie Bulger case, the file should be shredded. It should not be held against the person concerned in the future. However, it is bizarre that the law should work for one section of the community and not for another; that persons, some of whom I know well, who have been terrorised by young people are not told that the authorities have acted on their behalf and that if they see the person concerned carrying on the same way again, he or she will be in breach of the conditions attached to the sanction imposed and that further action will be taken.

I agree there should be no publication of photographs, unless they are of persons convicted of child sexual abuse. I do not understand the need for voyeurism in this regard. While photographs and information should not be for general distribution, those most directly affected in a community should be told. People despair at the notion that gardaí could say that if they happen to see Jimmy hanging around the corner again, they should give them a shout.

Chairman

Does the Deputy know whether there are errant families of brothers and sisters in Cork? They could be the Jones's or the Smiths?

Ms Lynch

We do.

Chairman

I do not know how one can get at them.

Ms Lynch

One needs to use common sense. It is about allowing others in the community know that the law works for them also and that there are measures which can be taken.

Mr. B. Lenihan

I agree with Deputy McGrath that the reporting of cases should be done with great sensitivity. The same applies to media comment.

On a general illustrative point, apart from the section we are discussing, yesterday I met the mother and uncle of the victim of Mr. A. They were shocked at the publicity in the Sunday World last Sunday given to the circumstances surrounding an offence to which Mr. A had pleaded guilty. The information had never previously been published in the public domain and had to be extracted from a book of evidence or witness statements compiled at the time of the original prosecution. This relates to information on the victim and the offence generally but it serves to illustrate the importance of this discussion.

Members may be surprised to hear that this Minister is aware of a pending complaint against Ireland in the European Court of Human Rights relating to our arrangements for the disclosure of information in such cases. The case being made which has some merit or at least is arguable is that the current distinction between an absolute ban on publicity in the Children Court and no ban in the higher courts is difficult to sustain in reason and logic. It is for that reason we have brought forward amendments to the section to recalibrate the balance for all courts. The concept of the public interest must be retained.

I want to meet the points raised by Deputies Ó Snodaigh and McGrath about ASBOs. I am prepared to revisit the section along these lines, that the qualifications included in subsection (2)(a), (b) and (c) will apply to criminal charges but not to ASBOs. I will draft a separate subsection to deal with the disclosure of information relating to ASBOs. Deputy Murphy also raised this point. The only qualification permitted in the case of ASBOs will be included in paragraph (d), “where the child is the subject of an order under section 257D, to ensure that the order is complied with”. The court must be able to express itself and must be a judge of this. Subject to this limitation, there will be no other publicity attaching to an anti-social behaviour order in the case of a person under 18 years.

I would prefer to recast the subsection. I undertake to bring forward an amendment on Report Stage to recast it in that form. As a result, there will be one subsection dealing with an offence, in respect of which there will be three qualifications. I think everyone accepts the first two, "to avoid an injustice to the child" and "where the child is unlawfully at large". The third, "in the public interest", must be retained because, in the context of criminal offences, some of the matters involved are so serious in character that one cannot provide for a blanket ban. I will recast paragraph (d) as a separate subsection applying to ASBOs, making it clear that is the only circumstance in which there can be publicity. That will give the courts ample power to see to it that what happened in England will not happen here, that newspapers will not publicise the existence of ASBOs, that it is proportionate to the need for the court to ensure the order is complied with.

Ms Lynch

Will the courts also inform the Garda that it may inform the people involved? Will it leave a little freedom?

Mr. B. Lenihan

Exactly. It is a formal order that is made, not a picture of a child published in a newspaper or a local community newsletter.

Ms Lynch

That is what I meant. I meant wider distribution, free sheets and such like.

Mr. B. Lenihan

It will have to involve a court order issued to the Garda. That is what the court will do. It has to be proportionate to the need, namely, that people are aware of the order, not a picture or a local residents association asking whether one knows a person has had an order made against him or her.

Ms Lynch

What about the notion of shredding the file?

Mr. B. Lenihan

I had hoped Deputy Lynch would not revisit that issue. It raises a much wider issue. This jurisdiction does not have legislation dealing with criminal records. Matters have proceeded by way of practice since 1922. Under common law, the Garda is entitled to record and keep this information and release it on a certain basis. It is accepted by the Minister, Deputy McDowell, that this is a practice which should be placed on a legislative basis. There also are anomalies for adult offenders because in Ireland one's record is never expunged. There is the practice of the transmission of United Kingdom records to this jurisdiction. It is technically possible, therefore, to have a record in this jurisdiction for an offence committed in England, in respect of which one no longer has a record there.

In the context of section 258 of the Children Act, where a person commits an offence under the age of 18 years and a period of not less than three years has elapsed since the finding of guilt, there are provisions under which he or she can be deemed to have been rehabilitated and have no record. Although I was aware there was a provision in the Children Act, the point Deputy Lynch raises is still valid in the case of all offenders. We need to place this practice on a statutory basis. The Minister accepts that it is one of the main priorities within the Department.

Amendment to amendment, by leave, withdrawn.

Amendment No. 2 to amendment No. 213 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 214:

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

"137.—Section 136 of the Act of 2001 is amended—

(a) by the substitution of the following subsections for subsection (1):

"(1) A member of the Garda Síochána who finds a child in breach of an order under section 133 or of any condition to which it is subject may arrest the child without warrant.

(1A) Where it appears to a court that a child has failed, without reasonable cause, to comply with such an order or any condition to which it is subject, it may—

(a) if the order was made by a court in the district of residence—

(i) direct the child to comply with the order or any such condition in so far as it has not been complied with,

(ii) revoke the order and substitute another order under section 133 or another community sanction, or

(iii) revoke the order and deal with the case in any other way in which it could have been dealt with before the order was made,

or

(b) if the order was made by another court, remand the child on bail to a sitting of that court to be dealt with, and for that purpose paragraph (a) shall apply in relation to that court, with the necessary modifications.”, and

(b) by the deletion of subsection (3).”.

Mr. G. Murphy

I move amendment No. 1 to amendment No. 214:

In the inserted subsection (1), to delete "the Garda Síochána" and substitute "an Garda Síochána".

Mr. B. Lenihan

Long before the debate on anti-social behaviour orders commenced, we enacted a provision in section 133 of the Children Act introducing a restriction of movement order which the court could impose on a young person found guilty of an offence. The order can oblige a young offender to remain in a specified residence at specified times between 7 p.m. and 6 a.m., or to stay away from a specified premises, place or locality. The section came into operation on 1 May 2002. One of the options available to the District Court under it is to impose an order along these lines.

Section 136 of the Act which also came into operation on 1 May 2002 deals with non-compliance with a restriction of movement order. Such an order can only be imposed in cases where there has been a conviction. The section does not provide for a power of arrest where an order or a condition applying to it is breached. This makes enforcement of an order unnecessarily difficult. Although the Children Court can impose a restriction of movement order, if a person breaches that order and a garda approaches him or her and points out that he or she is in breach of the order, the person can then tell the garda that he or she must serve a summons on him or her for him or her to appear in the District Court. I am proposing that gardaí have powers of arrest in circumstances where they find a young person in breach of an order or any condition to which he or she is subject.

Unlike the anti-social behaviour order, this order relates to a situation where a person has already been convicted of an offence and this is his or her sanction. The restriction of movement order, which restricts the person to remaining within a specified residence during night hours, is not a suitable order to impose in many cases but where it is imposed, it is important to ensure it can be enforced and this is the basis of this amendment. We will accept amendment No. 1 to amendment No. 214, which is a technical amendment, but will do so at a different place and time.

Mr. G. Murphy

It is all over the Bill.

Chairman

Has the Deputy decided to withdraw the amendment?

Mr. G. Murphy

Yes, if this is the procedural way to do it.

Chairman

The amendment will be put back.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Chairman

Amendment No. 215 and amendments Nos. 1 and 2 to amendment No. 215 may be discussed together.

Mr. B. Lenihan

I move amendment No. 215:

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

"138.—The following section is substituted for section 149 of the Act of 2001:

"149.—(1) Where a child is found guilty of an offence in the Children Court, any term of detention in a children detention school imposed for the offence shall not be for a period longer than the term of detention or imprisonment which the court could impose on an adult who commits such an offence.

(2) When considering the appropriate period for which a child found guilty of an offence should be detained, a court shall have regard to the child's educational needs.".".

Section 149 of the Children Act 2001 dealt with sentencing powers and re-enacted the old Children Act 1908 provisions under which children could be detained in industrial schools and reformatory schools for longer than the maximum sentences that could be imposed by the District Court. Under the Children Act 2001, periods of detention of up to three years could be imposed, although the jurisdiction of the District Court is much more limited in respect of adults.

This policy went back to the days when courts could impose long periods of detention in these schools for young people who would not otherwise obtain proper care and education. Constitutionally, these periods were justified on the basis that referrals to these schools were primarily to obtain care and education for the young people in question and were not punitive. We all know the history of these institutions but this was the argument used at the time.

The 1908 Act provided for a maximum period of five years detention in reformatories. No maximum period was specified for industrial schools. A child up to 16 years of age could be detained in such a school for any length of time. This is the legal background to this debate. The 2001 Act was enacted at a period of transition when we were moving from the industrial school and reformatory model to the children detention school model. Times have changed and I propose to bring the maximum period of detention in children detention schools into line with the maximum sentence that can be imposed in the District Court. Such a sentence is normally 12 months.

When the Children Court is dealing with an offence by a child, the maximum sentence it can impose is 12 months. This represents a very significant change of policy and has major implications for the operation of child detention schools. It means, for example, that programmes devised for children or young people committed to these schools must be intensive one-year programmes and tailored as such. I have considered the issue very carefully and believe this is the proper route to take. We should bear in mind that for more serious offenders, the option of disposal by the Circuit Court is available. In the case of an offender whose case is heard in the Children Court, this is the appropriate maximum period of detention.

There are two reasons we should take this route. First, child detention schools will take in young offenders between the ages of 12 and 18 years and will be unable to admit non-offending children. Young people aged 16 and 17 years are above the school leaving age. It is difficult to argue that schools in which such children can be detained are purely educational in nature and would, therefore, comply with the Constitution. They will obviously provide sophisticated educational, training and other programmes but this will be in the context of the young people having received custodial sentences for offences they committed and not as something secondary to receiving an education.

Second, the nature of detention of young people is changing. In the past, many young people who were detained for long periods were detained for the wrong reasons. They entered the criminal justice system primarily to receive a standard of care and education they might not have received otherwise. With the implementation of the Children Act, this type of child will no longer show up in the criminal justice system. Of the children who do show up in the criminal justice system, most will be diverted away from detention through the operation of the restorative justice provisions and community sanctions. Only serious or persistent offenders or those whose detention is necessary for the protection of society, will be detained.

Detaining such children for periods longer than those for which adults can be detained for being found guilty of the same offence is constitutionally suspect and very difficult to justify. This is the basis of the official amendment. By deleting subsection (2), it no longer exists. If my amendment is published, subsection (2) will be deleted.

It was intended to allow the court to take into account a child's particular circumstances with regard to his or her education in considering the appropriate sentence to impose. I believed this could allow the court to postpone a sentence while a young person was engaged in examinations but it is capable of being, and has been, misinterpreted. As the court has the power to postpone a sentence, I will not proceed with this aspect of it. The Ombudsman for Children and Human Rights Commission were both concerned that this provision might result in educationally disadvantaged children receiving longer sentences. I assure the committee that this was no longer the intention but I am satisfied the matter can be dealt with as a matter of general law.

I am not sure where amendment No. 1 to amendment No. 214, which was tabled by Deputy Ó Snodaigh, leaves the amendments to the deleted subsection.

Chairman

The amendments are no longer relevant because the subsection has been deleted.

Mr. B. Lenihan

It is, therefore, clear.

Ms Lynch

Therefore, subsection (2) has been deleted.

Chairman

Yes.

Ms Lynch

Is subsection (1) remaining?

Mr. B. Lenihan

Subsection (1), which is the major change, is remaining. Subsection (2) only tried to guard against a particular possibility but I am satisfied that there is no need to do it in express terms.

Amendments Nos. 1 and 2 to amendment No. 215 not moved.

Amendment agreed to.

Chairman

Amendment No. 216 and amendment No. 1 to amendment No. 216 may be discussed together.

Mr. B. Lenihan

I move amendment No. 216:

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

"139.—Section 155 of the Act of 2001 is amended—

(a) by the substitution of the following subsections for subsections (1) to (3):

"(1) Where—

(a) a child is convicted on indictment of an offence and sentenced to detention in a children detention school,

(b) the period of detention is served initially in such a school,

(c) the child has attained the age of 18 years before the period of detention has expired,

the person shall be transferred to a place of detention provided under section 2 of the Act of 1970 or a prison to serve the remainder of the period of detention.

(2) If, on attaining the age of 18 years, the person—

(a) is engaged in a particular course of education or in training which is not available in such a place of detention or in a prison, or

(b) is nearing the end of his or her period of detention in the school,

the person may continue to be detained in the school beyond that age for a period not exceeding 6 months.

(3) Notwithstanding any provision in any enactment, no child shall be transferred from a children detention school to a place of detention provided under section 2 of the Act of 1970 or a prison.",

(b) by the deletion of subsections (4) and (5), and

(c) in subsection (6), by the deletion of “in a children detention centre,”.”

This amendment deals with section 155 of the Children Act 2001. Section 155 deals with the detention of children on foot of a conviction on indictment. Clearly, the normal detention provisions cannot apply where a young person receives a relatively long sentence for a serious offence such as rape. The 2001 Act established a procedure under which young people aged under 16 years on whom such a long period of detention had been imposed would continue their detention in child detention centres.

Depending on circumstances, the young person in question would transfer to a child detention centre when he or she was aged between 16 and 18 and a half years. However, the child detention centre as a concept is now being abolished. Therefore section 155 is being amended to reflect the abolition of this concept. It is possible to see one of the advantages of getting rid of this distinction in legal terms between offenders under and over 16. That said, I would not like Deputies to get the impression that we plan to habitually mix young men aged between 12 and 18 years, irrespective of age. However, in legal terms, it is much easier to plan for the detention of these offenders without this distinction. Under the new subsection (1), a child on reaching the age of 18 who is detained in a children detention school without having finished his or her sentence will be transferred to a place of detention or prison.

The new subsection (2) spells out in more detail, than the provision in the 2001 Act, the circumstances in which the child can be detained in a school for an additional six months before transfer to a place of detention or prison. These are that the child is participating in a course of education which would not be available elsewhere or is coming to the end of the period of detention. Despite the clear age structure for admission to the schools and the circumstances I have just outlined, it would be preferable to allow for a short period where persons aged up to six months over the maximum age for detention in the schools can continue to be detained there.

Deputy O'Keeffe's amendment proposes to extend the period in which a child may remain in a children detention school past his or her 18th birthday from six to 12 months. The purpose of the amendment in my name is to allow a child who has been sentenced to a period of detention that extends past his or her 18th birthday to finish out the sentence in the children detention school rather than a prison where there is only a short period of detention remaining or where he or she is undertaking a particular course of education or training. This period has to be kept reasonably short. After the age of 18 the person is legally an adult.

Under the 2001 Act, and in accordance with our obligations under the international instruments, we are obliged to detain children separately from adults. An extension of six months is reasonable having regard to the overriding need to rehabilitate offenders or to facilitate their orderly release. I do not believe we can go beyond the period of six months. Six months is the appropriate balance to strike in respect of enabling an offender to complete a short period remaining of a sentence or to complete a training programme. That is my judgment on it. An extension of a full year would be creeping back towards the position that obtained in St. Patrick's Institution where it was 16 to 21 years. Six months is a reasonable period to permit and we are speaking about offenders aged from 13 to 18 years. The wider the band the greater the accommodation difficulty presenting to the authority.

Mr. G. Murphy

The intention was that if a specific programme was set out to try to advance a person's rehabilitation or if there was an educational programme, they may need to go over the time to complete the particular course.

Ms Lynch

A person due to sit the leaving certificate——

Mr. G. Murphy

Correct.

Ms Lynch

——if he or she reached the age of 18 in October.

Mr. G. Murphy

That is the only reason.

Ms Lynch

That would be very rare because things do not happen that way. That is accepting that the person is not about to be released. I assume that if the person was about to be released he or she would sit the State examination in the same way as everybody else.

Mr. B. Lenihan

The Minister would look at that issue in that context as well. There are only three months. There is a problem of degree here. Once the period is extended to a year, one is beginning to infringe international instruments. The separate detention of children is a fundamental requirement. We are tweaking it for six months but how far can it be tweaked?

Mr. G. Murphy

If courses are in one-year cycles and a course is continuing until June and the person trying to make that deadline is released three months prior to it——

Ms Lynch

Released is a different matter.

Mr. G. Murphy

——or rather transferred——

Aengus Ó Snodaigh

I presume that for a person who has reached the age of 18, in a case where he or she is being transferred, the idea is that the prison to which he or she is being transferred has the facilities to do the leaving certificate. There are many adults who have studied for the leaving certificate and other courses within jails. I am wary of extending the period of detention beyond three months. Three months would be acceptable. Any person who gets a sentence knows the approximate date of release and would understand that his or her chances of completing the leaving certificate or a similar course in the children's institution would be slim. I do not think it should be extended beyond three months.

Mr. B. Lenihan

Deputy Murphy has suggested a year and Deputy Ó Snodaigh said three months. I think six months is the best I can offer.

Chairman

I think it should be left to the compassion of the Minister.

Ms Lynch

I would not be that harsh.

Mr. B. Lenihan

There is another point here. The bulk of these offenders have been convicted not in the Children Court but in the higher courts. I envisage that the bulk of these offenders would be aged 17 at the time of the imposition of their sentence. There may be a handful of 16 year olds but the bulk of them would be aged 17, and there would be a need in serious cases for a transition to the adult system in that circumstance.

Ms Lynch

What most of us are saying is that we are reluctant to take away the opportunity if there is a possibility that a person, through education, will gain a skill that could turn his or her life around. It is no more than that. We accept the need for separate detention——

Mr. G. Murphy

Perhaps the Minister of State would look at that aspect.

Amendment No. 1 to amendment No. 216 not moved.

Amendment agreed to.

Chairman

Amendments Nos. 217 and 218 are related and may be discussed together.

Mr. B. Lenihan

I move amendment No. 217:

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

"140.—The following section is inserted in the Act of 2001 after section 156, but in Part 9:

"156A.—(1) Notwithstanding anything in Part 9, males aged 16 and 17 years sentenced to detention may be detained in Saint Patrick's Institution or a place of detention until—

(a) places suitable for the admission of children of those ages become available for designation as children detention schools under section 160, or

(b) they have completed their period of detention.

(2) Subject to subsection (3), on or after the making of any such designation, any child serving a period of detention in Saint Patrick's Institution or a place of detention may be transferred to such a designated children detention school.

(3) A male aged 16 or 17 years may be transferred from Saint Patrick's Institution or a place of detention to a children detention school before such a designation is made and may later be transferred back to the Institution or place.

(4) A child who is serving a period of detention in St. Patrick's Institution or place of detention shall not have his or her period of detention varied by reason only of a transfer under subsection (2) or (3).

(5) In this section, "place of detention" means a place of detention provided under section 2 of the Act of 1970.".".

I discussed the substance of these amendments the last day when we discussed the general intention behind the legislation. The purpose of these amendments is to permit the detention of males aged 16 and 17 years in St. Patrick's Institution for a period after the detention provisions of the Children Act are commenced and until new children detention school facilities have been built to accommodate them. The reason for the amendments was to facilitate the early commencement of the detention provisions of the Act. Reading the submissions made by the various interested parties on the amendments I detected a note of suspicion that the purpose of this amendment was to prolong the existence of St. Patrick's Institution as a place of detention for 16 and 17 year olds beyond its allotted and appropriate span. That is far from the case.

This amendment will facilitate the commencement of the vast bulk of Part 9 of the Children Act which deals with the community sanctions and the new detention we agreed a few moments ago, the maximum of the District Court jurisdiction for the children detention schools when it is a Children Court sentence. The purpose of the amendment is transitional in character. That part also provides that children must be detained separately from adult offenders and that no court can pass a sentence of imprisonment on a child or commit a child to prison. We need that clear-cut rule throughout the courts system. The detention of children in St. Patrick's Institution will not be permitted after the commencement of these provisions. Commencement has not been possible as new facilities, separate from adult facilities, are not yet available to deal with boys detained in St. Patrick's Institution.

The amendments will make it possible to commence the detention facilities in their entirety at an early date, bringing into force all the other detention measures and protections. They will permit the detention of 16 and 17 year old boys in St. Patrick's Institution as a transitional measure until new facilities are available for them. The required new facilities will be provided as soon as possible but it takes time to plan, design and build detention facilities.

The amendments provide that 16 and 17 year old boys can be detained in St. Patrick's Institution or another place of detention until an appropriate designated children detention school place becomes available. Once suitable places become available, 16 and 17 year old boys can be transferred to the children detention school or complete their sentence in St. Patrick's Institution. This provision has been included to ensure that a large group of children are not transferred at the same time from St. Patrick's Institution into a children detention school and to prevent importing a prison culture into the schools.

Once the new facility is in place, all 16 and 17 year olds sentenced to detention will be placed in it. Essentially what is envisaged is a gradual transition from St. Patrick's Institution to the children detention school system. A provision has also been included to permit the return of a child who has been transferred from St. Patrick's Institution to a children detention school back into St. Patrick's Institution. This is to allow for the good management of the children detention schools during the transitional period.

These amendments are not intended to secure the medium or long-term future of St. Patrick's Institution, which is due to close at the same time as the Mountjoy Prison complex. The sole purpose of these amendments is to facilitate the early commencement of the detention provisions while ensuring 16 and 17 year olds can continue to be securely detained in St. Patrick's Institution until such time as sufficient child detention school places are available.

Aengus Ó Snodaigh

I have already raised issues in regard to St. Patrick's Institution. There is no indication, other than what the Minister of State just said, when the institution will be replaced. We do not have a commencement date or a building timeframe for a new facility. In the meantime, young people are housed in an institution which is unfit for the purpose. There is a lack of services and waiting lists exist for everything from GP to psychiatric services. There are few, if any, classes, workshops are closed, drug-taking occurs on a daily basis and there is cockroach infestation in the basement areas. Despite evidence for several years of bullying of children by staff and by other children, nothing has been done to address it.

Most people involved in the Prison Service have recommended the institution's closure but it may be five or ten years before there is a new facility to replace it. I hoped the Minister would impose a deadline to ensure its closure within, for example, three years. This would oblige the Government to get its act together before then. Another Deputy asked whether former prisons or other State institutions might be suitable for refurbishment and could be opened sooner. There does not seem to be the required urgency in regard to the closure of St. Patrick's Institution.

Mr. B. Lenihan

I do not know how Deputy Ó Snodaigh can suggest there is not major urgency attaching to the closure of St. Patrick's Institution. As his party's spokesperson on justice, equality and law reform, I am sure he has studied the Minister's decision to develop the Thornton site. It is clear from this that it is very much the Minister's intention to close the Mountjoy complex of which St. Patrick's Institution is a part.

Several years ago the Government invested in a new facility at St. Patrick's Institution which it was envisaged would hold 14 and 15 year olds. I persuaded the Government to decommission that facility for that particular purpose and it is now available for dedicated provision for 16 and 17 year olds.

Aengus Ó Snodaigh

It is currently used by administration staff in the probation and welfare service and by the prison governor.

Mr. B. Lenihan

No, 16 and 17 year olds have already moved in and the intention is to hold as many as possible in that wing of the St. Patrick's facility. Some of them will be housed in the drug-free wing because of its reputation. This is the position in regard to the use of St. Patrick's.

I agree with the Deputy that this is a practical rather than a legal solution and that the latter is required within a defined timeframe. That is why we have finalised discussions with the Department of Education and Science on the transfer of capital funding to the Department of Justice, Equality and Law Reform. That funding will be administered by the new youth justice service which will plan the appropriate facilities. A cross-departmental group has already been established to plan for those facilities, which will have a therapeutic and educational content as well as providing for the basic security of those who will be held there.

There is a strong commitment to action in this area. It was this Government that decided to establish a youth justice service and finally to tackle this problem. I agree with the Deputy that it is undesirable for offenders under the age of 18 to mix with persons up to the age of 21. The decision to use the child detention school concept as the model for the future is the correct one. It has not been done in all European jurisdictions but we have decided to take that approach. In regard to the transitional arrangements it is clear that our approach is backed up by Government decisions.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 218:

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

"141.—The following section is inserted in the Act of 2001 after section 156A:

"156B.—Pending the making of rules under section 179 for the management of children detention schools, the Prisons Acts 1826 to 1980 and any other enactments relating to or applying to St. Patrick's Institution or to persons serving sentences therein shall, except where they may be inconsistent with this Act, apply and have effect, with any necessary modifications, in relation to a children detention school and to persons detained therein as if the school were that Institution.".".

Amendment agreed to.

Chairman

Amendment No. 219 and amendments Nos. 224 to 226, inclusive, are related and may be discussed together. There are several amendments to amendments Nos. 225 and 226.

Mr. B. Lenihan

I move amendment No. 219:

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

"142.—Section 157 of the Act of 2001 is amended—

(a) by the insertion of the following definitions:

"‘authorised person' means a person authorised by the Minister under section 185;

‘staff' does not include teaching staff;",

and

(b) by the deletion of the definitions of “Inspector” and “Minister”.”.

These amendments have given rise to some concern and it is important to outline their purpose. They are concerned with the inspection of children detention schools. When the 2001 Act was being prepared, it was anticipated that the social services inspectorate would eventually be responsible for the inspection of the children detention schools. As the reality of such inspections was some way off at that time, however, it was necessary to provide for a separate interim inspection scheme.

Now that inspection by the social services inspectorate is a reality, it is necessary to make some amendments to the 2001 Act to reflect the scope and working methods of the social services inspectorate. As the latter is not yet established on a statutory basis, it is not possible to name it as the inspection body, but this does not prevent it from taking on the inspection of the schools if these amendments are approved. The Department of Health and Children is preparing legislation that will put the social services inspectorate on a statutory basis. Were that legislation sufficiently advanced in the Houses of the Oireachtas, I would be amenable to including an express reference to the social services inspectorate in this Bill.

Amendment No. 219 relates to section 157, which is the interpretation section for Part 10 of the 2001 Act. The definition of "Inspector" is replaced by "authorised person" and the expression "staff" in regard to the schools will not include the teaching staff. The Department of Education and Science will continue to be responsible for the education and training of the young persons detained in the schools and the employment of teachers.

Amendment No. 224 provides for the appointment of an authorised person to inspect children detention schools. It replaces section 185 of the 2001 Act and is designed to ensure the social services inspectorate will be so appointed. The latter has been established since the 2001 Act and has acquired a reputation and expertise in the inspection of health and care services in young persons' residential facilities. It is highly appropriate that it should also be the body inspecting the children detention schools. Thus, it is made clear that the inspector will have an expertise in regard to the inspection of children's residential accommodation. As I said, we cannot refer to the social services inspectorate by name as it is not yet a statutory body.

The third official amendment, amendment No. 225, replaces section 186 of the 2001 Act, which provides for the functions of the inspector. The original Act envisaged the appointment of a separate inspector for the children detention schools. Essentially, the policy covered in these amendments is that the social services inspectorate will replace the envisaged inspector under the 2001 Act. These amendments were introduced to harmonise the functions of the inspector with those exercised generally by the social services inspectorate.

The 2001 Act also gave the inspector power to carry out investigations. The social services inspectorate does not carry out investigations. By "investigations" I mean issues of concern that might be identified by the authorised person during an inspection but which are outside the authorised person's remit or may otherwise have been brought to the Minister's attention.

The new section 186A, which I propose to insert in the 2001 Act, allows the Minister to appoint an investigator where concern has been expressed about some aspect of the school. The powers and duties of the investigator are similar to those which the inspector had in that respect under the 2001 Act. These provisions allow for the deletion of sections 186 to 189, inclusive, of the 2001 Act.

Overall, these amendments are essential if children detention schools are to be inspected by a body with a proven expertise in inspecting children's residential accommodation. That body will be the social services inspectorate. In the context of it being in a position to assume responsibility for the inspection of the schools, there was no option but to introduce these amendments.

Turning to the amendments tabled by Deputies Jim O'Keeffe and Ó Snodaigh, Deputy Jim O'Keeffe's amendment No. 1 seeks to add the words "and experience" to subsection (3) of the substituted section 185. The social services inspectorate has at this stage gained experience in inspecting children's residential accommodation. Therefore, while the amendment is not essential, I can accept it on the basis that it reflects my intention that the inspectorate will be the inspectorate for the schools. I thank Deputy O'Keeffe for tabling the amendment. I assume that Deputy Gerard Murphy will move it.

Turning to the amendments tabled by Deputy Ó Snodaigh, nine of them are related and envisage a role for the Ombudsman for Children in appointing an investigator. Before dealing with those, I wish to respond, in sequence, to Deputy Ó Snodaigh other amendments, starting with amendment No. 225. The first of these amendments calls for inspection of the schools to be held at least every six months instead of every 12 months as proposed. It is true that the 2001 Act provided for inspections at least every six months but following discussions with the social services inspectorate inspections at least every 12 months was regarded as more appropriate considering the timescale involved in the process of inspection.

Since its establishment in 1999 on an administrative basis the social services inspectorate has developed an expertise in the inspection of HSE-run child care residential facilities. Unless an especially pressing issue requires to be addressed, the current position is that special care or secure units are inspected on an annual basis. Given the lengthy process involved in preparing, conducting, writing up and following up the inspection, including the response of the facility that is the subject of the inspection, the annual inspection has been found to have worked well. If the need for more frequent inspections arises, there is nothing in the legislation to prevent them. Visiting panels will be appointed to the schools. These panels will be entitled to make frequent visits — in other words, as often as they like — to the schools to hear complaints, if necessary in private, from detained young persons. They have totally free access to the schools. In the light of these arrangements I am satisfied the inspection and visiting arrangements for the schools are sufficient to ensure the young persons in the schools are well treated.

The second amendment to amendment No. 225 proposes to change the words "have particular regard" to "pay particular attention". I can accept that amendment.

Deputy Ó Snodaigh's third amendment to amendment No. 225 requires the authorised person to be independent of the detention school. I would like more time to consider this amendment which would have the effect of placing the inspectorate on a statutory basis, and to discuss it with the officials preparing the legislation at the Department of Health and Children and the Attorney General. I have no problem with that and I would expect the person to be independent in the performance of his or her functions, but I would like to know exactly how I can cast that into statutory form. I am prepared to return to this matter on Report Stage.

Deputy Ó Snodaigh tabled an amendment to section 226, which provides that matters of concern raised by a child in detention can be a reason for the Minister to order an investigation. This amendment is unnecessary. The Ombudsman for Children is appointed under the Ombudsman for Children Act 2002, which has been signed by the President following resolutions of the Houses. The office is independent and has various functions.

In the context of the children detention schools, the ombudsman will be able to examine and investigate the complaints of, or relating to, individual children. This will be one of the other advantages of moving to the child detention school model because at present the ombudsman has no jurisdiction in regard to persons detained in St. Patrick's Institution. That will change under this legislation. I have asked the Department of Justice, Equality and Law Reform, as an interim measure, to examine whether, as a matter of practice as distinct from law, the ombudsman can have some jurisdiction in regard all children in detention under the age of 18. The ombudsman will be able to provide independent advice for the Minister on any such complaint. The amendment is unnecessary as complaints by children are already dealt with under the ombudsman legislation.

Amendments Nos. 2, 3, and 6 to 12, inclusive, to amendment No. 226 would give the Ombudsman for Children power to order investigations of children detention schools. This should be a matter for the Minister who has overall responsibility for the schools. This is an added protection for children in that it involves a member of the Executive with ministerial responsibility in this area being afforded the power to order an investigation. Such an investigation would not be limited to the welfare of children but could be used where there may be other concerns such as financial irregularities or staff concerns that require to be addressed. That would not be within the ombudsman's powers. As I indicated, the power to set up an investigation is not really suitable to the function of the Ombudsman for Children. Accordingly, I cannot accept the nine amendments in that connection.

Deputy Ó Snodaigh's amendment No. 4 to amendment No. 226 relates to the independence of the inspector who will carry out the investigation. I referred to this issue already and indicated that I am prepared to examine it for Report Stage but it is a matter of casting it in the right form.

In Deputy Ó Snodaigh's amendment No. 5 to amendment No. 226, the same issue arises in regard to the investigator. This amendment seeks to give the investigator power to interview children detained in schools while carrying out an investigation. I agree that should be examined but I would like to consult the Parliamentary Counsel on this amendment as to whether it is essential and legally desirable. I am prepared to examine this issue and report to the Deputy on it on Report Stage.

Chairman

Amendment No. 1 to amendment No. 224 provides that the person appointed should have expertise and experience in regard to inspections. How can one have experience if one is not already an inspector? One can have expertise because one assists, but how can one have experience in regard to the inspectorate? Is it a chicken and egg scenario which could complicate matters?

Mr. B. Lenihan

One has expertise by virtue of one's qualifications whereas one has experience by virtue of inspecting institutions. We are happy to have a social services inspectorate which has substantial experience in this area. That is the body we intend to designate to carry out the inspections.

Chairman

One is supposed to have experience before one can become an inspector, therefore, how can one carry out inspections? If one is authorised to be an inspector, one is supposed to have such experience.

Mr. B. Lenihan

One would have experience in other children's residential accommodation.

Chairman

There may be a problem in this respect.

Mr. B. Lenihan

Let us consider the reality aside from the amendment. The Department of Education and Science was in charge of the inspection of these institutions for a number of decades——

Ms Lynch

They were and——

Mr. B. Lenihan

——as we all know only too well. We decided in 2001, in section 185, to provide for a dedicated stand-alone office for a process of inspection of these schools. In fairness to the Department of Health and Children, it made considerable progress in developing a proper system of inspection for the residential facilities under its charge, that is, the social service inspectorate which is about to be put on a statutory basis. What I am saying now is that the social service inspectorate is the correct body to inspect the children detention schools as well. It is difficult to argue with that. The quality of the social service inspectorate's reports on the residential centres already examined by them shows it has experience and expertise in the area. Certainly, I am prepared to revisit the issue again on Report Stage, but that is the intention.

Mr. G. Murphy

If there is genuine concern about it, we will defer it until Report Stage.

Chairman

We will return to it in a moment.

Aengus Ó Snodaigh

I am happy that the Minister of State stated that he will look at some of these amendments. I have no difficulty withdrawing those amendments he suggested on the basis that he has reassured us that he will look at them to ensure that there will not be conflicts of interest in the future.

On my amendment to provide for a six-monthly inspection, I want a little more information about the length of time involved. The Minister of State stated it was a lengthy process and I do not want to end up creating a bureaucracy of inspections, with the staff in such an institution being obliged to fill out forms continuously for the sake of an inspection. If the inspection lasts a day or two, considering the matter concerned, it would not be too onerous to provide for six-monthly inspections, but if it is overly onerous and bureaucratic, an annual inspection would probably suffice with the commitment, which the Minister gave, that it can be on a more regular basis if the circumstances so determine.

I would prefer to return to the Ombudsman for Children amendments on Report Stage. The Ombudsman for Children should have a greater role in such institutions in terms of children who are in detention in order that matters of concern can be raised directly with, and investigated by, him or her. I can come back to that.

When will the social services inspectorate be put on a statutory basis? Is that a number of months or a number of years down the road?

Ms Lynch

Given the way we are proceeding with the inspection process, there are probably enough checks and balances included to ensure that any glaring anomalies with the premises and the facilities available, and with how people are detained, will come quickly to the surface. My difficulty with all this is our record in this area. While I recognise that we are discussing shorter periods of time and obviously a changed attitude, nevertheless our history in this area is not great. I have read everything possible about our history of industrial schools. We had an inspectorate then as well. While I acknowledge those were different times, what was missing from that entire structure was someone who could advocate the child's position.

People misunderstand to a certain degree the ombudsman's position. The ombudsman, I understand, is someone who will investigate officialdom on behalf of the complainant, whether he or she is an adult or a child. There are times when the child cannot advocate well his or her position. Sometimes there are people, not just children, but mainly children, who find it difficult to articulate what they perceive as their position or the injustice that is being done to them within a particular institution. That is what was missing from the previous framework.

In the case of people with disabilities, I suppose we are dealing with this on a fairly limited scale, but, nevertheless, we are getting there. What we need here, we need in all areas. I have read the other sections on the chief superintendent calling in the parents, good behaviour contracts etc. and I do not see in any of this someone to advocate the child's position, which is what is needed.

There is the inspectorate, and the premises, food and delivery of service will be good, but awful incidents happen outside that. I do not believe anyone who tells me that the awful incidents that happened to children in the past cannot happen in the future. It is necessary that there is someone specified who can advocate solely for the child. That is my safeguard.

Mr. B. Lenihan

I am glad to reassure Deputy Lynch that the ombudsman already has power to investigate complaints from children in the schools. I raised with the ombudsman the issue of whether I should abolish the visitors panels under the legislation, because I am somewhat suspicious of visitors panels given the history of that matter, and putting her in the position of the visitor. The ombudsman did not want that role. She made the point Deputy Lynch made, that the ombudsman's role in child detention centres is a voice for the child. In her reports, the one legal issue about her powers which the ombudsman has constantly raised with me is that she does not have power to hear the complaints of children who are in St. Patrick's Institution or in places other than child detention schools. She sees her function as the voice of the child in detention schools, as a distinct function that should not be mixed up with any others. That is also a point I would make about the suggestion that the ombudsman is the one who should organise or direct the holding of an inquiry or investigation. She does not see that as her function in the school.

On the other hand, the process of inspection is important and I wish to say a few words about the social services inspectorate. It has been established on an administrative basis only since April 1999. Deputy Ó Snodaigh inquired about the current position. I understand the position is that heads of the Bill have been circulated for public consultation. To date, the inspectorate has concentrated on the inspection of HSE residential child care facilities. It completed a national round of inspections of HSE centres by the end of 2004 and that inspection process is ongoing. It plays a crucial role in ensuring a quality assured system of care for children and young persons who are in the care of the State. Specifically, it is required, in its terms of reference, to listen to the voice of children in drawing up its reports.

Deputy Ó Snodaigh asked how long the process of inspection takes. It takes from six to seven months, from the initial notification by the inspectorate that it intends to conduct an inspection to final publication of the report. Part of the process is the submission of a draft report to the centre for immediate action prior to final publication, and one must take account of that. I do not want Deputy Ó Snodaigh to think that the inspectorate spends several months pottering around the place.

I had the privilege of launching the inspectorate's annual reports on a few occasions. I am satisfied with its work, which is of a high quality. It is a service which was not in the system in the past. I agree with Deputy Lynch in that regard. That is why I am so anxious to move away from the idea of having a dedicated inspector for children detention schools. That, I suggest with respect, was part of the problem in the past because the inspector had an integral role in the Department. Even with the somewhat independent character which the Department was given in the 2001 Act, the inspector was appointed from within the Department and at the instigation of the Minister for Education and Science.

We have here a body that has established its credentials and is about to be established on a statutory basis. It is the right body to do the inspections for child detention schools because it has built up the expertise and experience. It has also published a large number of reports which Deputies can consult. Some of those reports have contained robust criticism of conditions in some of the residential centres and suggestions for improvement. The body has also examined standards for foster carers and I believe it is the right body to be involved and that this is the right course to take. In terms of the children in these institutions, this would put them on the same standard of care as children in residential care elsewhere and move them away from the penal context as far as possible. It is intended the inspectorate will commence inspections in 2007.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 220:

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

"143.—The following section is substituted for section 159 of the Act of 2001:

"159.—(1) Subject to subsection (2), a certified reformatory school or industrial school under Part IV of the Act of 1908 shall, with the agreement of the Minister and the Minister for Education and Science, become a children detention school on the commencement of this section in relation to it.

(2) A certified industrial school under that Part shall, with the agreement of the Minister for Education and Science and the Minister for Health and Children and on the commencement of this section in relation to it, become premises provided and maintained by the Health Service Executive under section 38(2) of the Act of 1991 for the provision of residential care for children in care.

(3) On the commencement of this section in relation to a certified reformatory school or industrial school the functions relating to which stood vested in the Minister for Education and Science (other than the function of providing education and training and related programmes for children detained in it) such schools immediately before the commencement shall—

(a) if the school becomes a children detention school, be vested in the Minister, or

(b) in the case referred to in subsection (2), be vested in the Health Service Executive.

(4) The lawfulness of the detention, and the period of detention, of a child who is detained in a certified reformatory or industrial school is not affected by the commencement of this section in relation to it.

(5) Any reference in any enactment to a reformatory school or an industrial school shall, on the commencement of this section in relation to it, be construed as a reference to a children detention school or, as the case may be, premises provided and maintained by the Health Service Executive under section 38(2) of the Act of 1991.".".

This amendment provides for the transfer of certain detention responsibilities to the Department of Justice, Equality and Law Reform from the Department of Education and Science. This relates to five different legal entities, but the relevant detention facilities are at Oberstown, Finglas and Clonmel. What is envisaged for Clonmel, which is unnamed in the amendment, is that it will be transferred to the Health Service Executive.

Deputy Ó Snodaigh's amendment seeks to transfer responsibility for child detention from the Minister for Education and Science to the Minister for Health and Children, and Deputy Jim O'Keeffe's amendment seeks to require the consent of the Minister for Health and Children to the transfer.

The purpose of the amendment in my name is twofold. It transforms the existing industrial reformatory schools into children detention schools and transfers responsibility for these schools to the Minister for Justice, Equality and Law Reform or, in a specific case, to the Health Service Executive. Following the review of the youth justice system carried out in the Department of Justice, Equality and Law Reform and based on its recommendations, the Government agreed last December to establish a new youth justice service within the Department. The new service is intended to bring together all services for offending children in one place so that the needs of these children can be addressed in a coherent and co-ordinated way.

Historically, the youth justice sector has been characterised by a fragmented, unco-ordinated structure. The youth justice service will not only bring all services for offending children together, but will operate within the strategic environment of my office, the Office of the Minister for Children, ensuring that services for offending children are developed and delivered within the wider context of services for children generally.

Accommodation of children sentenced to detention by the courts will come under the remit of the youth justice service. This amendment provides for the existing industrial and reformatory schools to become children detention schools, which as a result of other amendments proposed here will be my direct responsibility as the delegated Minister within the Department of Justice, Equality and Law Reform.

The transfer of responsibility for the detention of children up to the age of 16 from the Minister for Education and Science to the Minister for Justice, Equality and Law Reform will have a number of positive effects. First, it facilitates the extension of the children detention school model to all children up to the age of 18. Second, it locates children detention services in the same youth justice service that is responsible for all other aspects of youth offending responses. That is important. It is a mistake to leave one Department in charge of detaining children and another in charge of community-based responses. That makes no sense, but it is the system under which we have operated for decades. The Department of Education and Science paid the bill for detaining the children, but other than in a limited educational way had no overall responsibility for an alternative approach. The result of the change is that the children detention services will be in the strategic environment of my office.

With regard to the transfer of a certified industrial school from the Minister for Education and Science to the Health Service Executive, I have been advised, since preparing these provisions, given that it involves a transfer from a Minister to a statutory body, that this requires to be spelled out in more detail. The necessary amendments will be prepared and brought forward on Report Stage.

Amendment No. 1 to amendment No. 220, in the name of Deputy Jim O'Keeffe, seeks the consent of the Minister for Health and Children for an industrial or reformatory school to become a child detention school. Currently, all these schools are vested in the Minister for Education and Science. Under the proposed official amendments, the detention functions of the children detention schools will be vested in the Minister for Justice, Equality and Law Reform. The consent of these two Ministers is required for the change to occur. The Minister for Health and Children has no role in these schools, under the current or the new system, and therefore her consent is not required. I have not detected an appetite within the Department of Health and Children to assume responsibility for children detention schools.

St. Joseph's industrial school in Clonmel will be transferred to the Health Service Executive, but it will not become a children detention school and, therefore, it is not covered by this subsection. The reason for this is that the majority of the persons held in St. Joseph's industrial school are there on referral by the HSE. Very few are there on foot of court orders.

Amendments Nos. 2 and 3 to amendment No. 220, in the name of Deputy Jim O'Keeffe, seek to add two commas to the subsection and substitute the word "functions" for "schools". Whatever about the commas, the Deputy is correct in saying that what are being transferred are functions, not schools. I would like the views of the parliamentary counsel on the drafting of those amendments before accepting them. If the parliamentary draftsmen consider a different form of words to be more appropriate, I will bring forward a newly drafted amendment on Report Stage. I thank Deputy Jim O'Keeffe for bringing the issue to my attention.

Amendments Nos. 4 and 5 to amendment No. 220, in the name of Deputy Ó Snodaigh, raise an issue of principle because he proposes to transfer all existing industrial and reformatory schools to the Minister for Health and Children as opposed to the Minister for Justice, Equality and Law Reform. The report to the Government recommended the Department of Justice, Equality and Law Reform, and I have listed the benefits of that transfer.

The transfer brings together detention for all children up to the age of 18 and facilitates the management of detention in an integrated manner, with non-custodial sanctions and other strategies to address offending behaviour within a single service. The youth justice service will be co-located with the other children's services within my office to ensure the detention services are managed and developed in a co-ordinated manner with these other services. The Deputy's amendment would remove those benefits. His amendment raises the fundamental philosophical issue, touched upon by some of the amendments raised by interested parties, as to why we should have a youth justice system. If ultimate sanction is vested in the health service, the logical follow through is to bring the age of responsibility up to 18 and to have a complete therapeutic service for youth offenders under the age of 18. I do not believe in that. There must be some sense of personal responsibility epitomised in our youth justice system. We cannot simply say that every problem is a social problem and should be treated accordingly, which is implicit in the thinking behind the Deputy's amendment.

A youth justice system may be a regrettable necessity, but if we must have it, there should be coherent management of the system from the earliest stage of diversion to the ultimate sanction of detention. This is necessary to ensure detention is the last possible resort and that community-based alternatives are built into the system as far as possible. However, it is useful to look at these amendments because they help tease out the issues involved.

A case can be made for having a single agency managing all this. I have managed to reduce the agencies from three to two. In other words, we are left with the need for co-operation between the Departments of Justice, Equality and Law Reform and Health and Children. This will take place under the aegis of my office and is a real advance. In another decade we may well be asked whether we would be better off with one agency to deal with troubled children. Having surveyed the administrative scene, I cannot say there is an appetite for that now. My achievement will have to be to have reduced the number to two.

Mr. G. Murphy

I am a little confused by what the Minister has just said. One would imagine the Office of the Minister for Children would be the prime mover on all these issues. I think that was the intention of Deputy O'Keeffe's amendment. The Minister of State is trying to co-ordinate the activities of the Departments of Justice, Equality and Law Reform and Health and Children. Deputy O'Keeffe is trying to emphasise that the Office of the Minister for Children should have the primary role in this regard.

Aengus Ó Snodaigh

There is a principle involved. The Minister of State has rightly suggested that we have not fully teased out the implications of the amendment. People have been raising issues about the detention of children. There has been a major shift in our attitude, in fairness, but I do not think it has gone far enough. The Minister of State has correctly pointed out that two agencies, rather than three, will have a role in this regard. I understand from my reading of the report of the youth justice review that it suggested a single service should be put in place. I refer to the part of the report that argued that responsibility for children in detention would be best located in the care and social services sector, as is the practice in many other jurisdictions. The entire Bill is problematic in this respect because we are not dealing with issues in isolation. We have been jumping from one issue to another as we have dealt with this. The whole issue of youth justice should have been the subject of a stand-alone Bill, but we will have to suffer what we have in front of us at this stage.

My preference is that this whole area should be the responsibility of the Minister for Health and Children. The Minister of State has correctly stated that not all problems relating to children who are in the detention of the State can be addressed through the social services. However, the majority of such children are in detention as a result of problems which could have been addressed by the social services. Such difficulties could have been alleviated in earlier years if we had resourced the system properly. If all sections of the Children Act 2001 had been implemented, most of those who are now in detention would not have arrived at that stage. I have called on the Minister to implement the Act in its entirety as quickly as possible. It seems the impetus for the implementation of some of the Act is to ensure anti-social behaviour orders can be introduced in respect of children. It is a pity that is the motivation for the allocation of resources to the outstanding elements of the Act. I will not speak further about my amendment No. 4 to amendment No. 220 because we could debate the principles behind the detention of children, which is the issue addressed in the amendment, for a long time.

My amendment No. 5 to amendment No. 220 proposes to replace "Health Service Executive" with "Minister for Health and Children" in subsection 3(b) of the proposed new section 159 of the 2001 Act. I have tabled the amendment because I would like to provide for some ministerial responsibility in this regard, rather than handing responsibility to the HSE. Since the establishment of the HSE, the Minister for Health and Children has been continually deferring to the HSE on various matters. It is important to make it clear that the Minister will have responsibility in this instance so that she will be accountable to the Houses of the Oireachtas and to the public. The HSE does not have that direct responsibility at present.

Mr. G. Murphy

I will not move amendments Nos. 1 to 3, inclusive, to amendment No. 220. I have been assured that amendment No. 3 will be examined in advance of Report Stage.

Amendments Nos. 1 to 3, inclusive, to amendment No. 220 not moved.

Aengus Ó Snodaigh

I move amendment No. 4 to amendment No. 220:

In the inserted section 159, subsection (3)(a), after “Minister” to insert “for Health and Children”.

Amendment to amendment put and declared lost.

Aengus Ó Snodaigh

I move amendment No. 5 to amendment No. 220:

In the inserted section 159, subsection (3)(b), to delete “Health Service Executive” and substitute “Minister for Health and Children”.

Amendment to amendment put and declared lost

Amendment put and agreed to.

Mr. B. Lenihan

I move amendment No. 221:

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

"144.—The following section is inserted in the Act of 2001 after section 159:

"159A.—(1) In this section—

"Inspector" and "recognised school" have the meanings given to them in section 2 of the Education Act 1998;

"transferred premises" means a certified reformatory or an industrial school under Part IV of the Act of 1908 which, on the commencement of section 159 in relation to it, becomes a children detention school or premises provided and maintained by the Health Service Executive under section 38(2) of the Act of 1991;

"vocational education committee" means a committee established by section 7 of the Vocational Education Act 1930.

(2) Any recognised school forming part of transferred premises is dissolved.

(3) A vocational education committee in whose functional area transferred premises are situated shall provide for the education of children in those premises.

(4) Without prejudice to the generality of subsection (3), each vocational education committee shall, in respect of any such premises—

(a) plan, coordinate and review the provision of education and services ancillary thereto,

(b) ensure that the education provided therein meets the requirements of education policy as determined from time to time by the Minister for Education and Science,

(c) ensure that students have access to appropriate guidance to assist them in their educational and career choices,

(d) promote the moral, spiritual, social and personal development of the children concerned, and

(e) ensure that the needs of personnel involved in management functions and those in relation to staff development generally are identified and provided for.

(5) The functions of an Inspector within the meaning of the Education Act 1998 apply, with any necessary modifications, in relation to education facilities provided in respect of any transferred premises.

(6) A person who, immediately before the dissolution under this section of a recognised school, is a member of its teaching staff shall, on such commencement, become an employee of the vocational education committee in whose functional area the recognised school is situated; and the rights and entitlements enjoyed by the person as such employee in respect of tenure, remuneration, fees, allowances, expenses and superannuation shall not, by virtue of the operation of this Act, be any less beneficial than the rights and entitlements enjoyed by that person immediately before the dissolution.".".

This amendment is happily placed after our discussion. This is a good point at which to resume that discussion. I have resubmitted this amendment with two minor changes to correct drafting errors. The effect of the changes we have just discussed is to transfer responsibility for residential schools for young offenders from the Minister for Education and Science to the youth justice service. It is important, however, that responsibility for educational provision in those residential schools remains ultimately with the Department of Education and Science. The purpose of this amendment is to ensure that happens. Responsibility for the education of children in detention schools will be transferred to the vocational education committee in the area where the school is located. The VEC will plan, co-ordinate and review the provision of education and services ancillary thereto; ensure that the education provided therein meets the requirements of education policy as determined from time to time by the Minister for Education and Science; ensure that students have access to appropriate guidance to assist them in their educational and career choices; and promote the moral, spiritual, social and personal development of the children concerned.

The inspectorate of the Department of Education and Science will have an inspection function in respect of the provision of education in the children detention schools. As a result of these changes, it has been decided to dissolve any recognised schools forming part of children detention schools. This will afford greater flexibility in the manner in which education is provided in children detention schools. By facilitating the provision of a broader curriculum than that available in ordinary schools, we will ensure the education provided is appropriate to the small cohort of students in these schools. The proposed new section also provides for the transfer of teaching staff to the VECs and ensures their existing rights are protected. I thank the staff interests involved for the assistance they have given me in the drawing up of this section, which is in the best interests of children.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 222:

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

"145.—Section 161 of the Act of 2001 is amended—

(a) by the substitution of the following subsections for subsection (1):

"(1) The Minister may enter into arrangements with any person or body for the provision by that person or body on behalf of the Minister of a place where children found guilty of offences can be detained.

(1A) Before entering into any such arrangements, the Minister shall be satisfied that the place provides treatment or other facilities not available in children detention schools.

(1B) The Minister may enter into arrangements under subsection (1) with more than one such person or body.

(1C) A child detained in a children detention school may be transferred to a place provided under subsection (1) with the agreement of the Minister and the person or body providing the place and, with such agreement, may be transferred back to that school", and

(b) by the insertion of the following subsection:

"(7) In this section, "place" includes part of a building.".".

The purpose of amendment No. 222, which amends section 161 of the Children Act 2001, is to clarify who may provide places of detention as envisaged by the section. A small number of children who are referred to children detention schools may require treatment or therapeutic care that is not available in such schools. Alternatively, a court may be aware that a child before it on a criminal charge would not receive the type of treatment he or she requires in a given school. In such circumstances, the child may be transferred to a place that provides the necessary treatment. Similarly, the court may refer the child to such a place after finding him or her guilty. Regardless of the treatment facilities which are available in schools, there is always the possibility that a young offender may require a type of specialised treatment that is not practicable to provide in such schools. The proposed new section 161 allows the Minister to enter into arrangements with bodies which provide such treatment to accept such children. This provision is likely to be used sparingly, but when it is used it is likely to be of great benefit to any young offender concerned.

It was never intended that the places to which young people may be transferred under this section should be prisons. Deputy Ó Snodaigh's amendment No. 1 to amendment No. 222 gives greater effect to that intention. I cannot accept the Deputy's amendment, as it stands, for technical reasons. As the Prison Service is not yet on a statutory basis, it would be meaningless to refer to it in legislation. If amendment No. 1 to amendment No. 222 were to state "that the place is not a prison or part of a prison and", I could accept it. If the Deputy so wishes, I can ask the Office of the Chief Parliamentary Counsel to draft an appropriate amendment to be submitted on Report Stage.

Aengus Ó Snodaigh

I will not move my amendment to the Minister of State's amendment.

Mr. B. Lenihan

There is a very small cohort of child offenders in Ireland at any one time. One of the biggest problems I encountered in my review of the 2001 Act was that if there is a very rigid structure, it can militate against the proper treatment of child offenders.

Aengus Ó Snodaigh

To what type of psychiatric treatment does the Minister of State refer? Can he give any examples?

Mr. B. Lenihan

Psychiatric treatment or the treatment of sex offenders is a separate area. There are some limited provisions in respect of sex offending in Oberstown. Specialised forms of sex offending could require treatment elsewhere.

Amendment No. 1 to amendment No. 222 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 223:

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

146.—Section 165 of the Act of 2001 is amended—

(a) in subsection (1)(b), by the substitution of “risk, and” for “risk,”, and

(b) by the deletion of paragraph (c) of subsection (1).”.

This amendment to section 165 and similar amendments to sections 179, 203(3) and 204(9) provided for in amendments to Schedule 4 propose to limit slightly the powers of the boards of management of the children detention schools. In the set-up of the children detention schools envisaged in the 2001 Act, the schools are to be run by boards of management that will have the function of making rules. Under the proposed amendments, this position will remain unchanged. However, the amendment to section 165 removes from the board the power to formulate policy in regard to authorised absences of children from children detention schools.

In the proposed new system, children detention schools will accommodate children up to the age of 18 rather than 16. In the case of older children, often detained for more serious offences, it would not be appropriate for the board of management of a school to permit absences, which function will be reserved for the Minister. This is correct because incidents can happen where there is an absence and the Minister will ultimately be obliged to take responsibility for them. As we know, the office of the Minister for Justice, Equality and Law Reform is not an easy one and boards should not formulate policy on permitted absences.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 224:

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

"147.—The following section is substituted for section 185 of the Act of 2001:

"185.—(1) The Minister shall cause each children detention school to be inspected.

(2) An inspection shall be conducted by a person authorised in that behalf by the Minister.

(3) The person so authorised shall have expertise in relation to the inspection of children's residential accommodation.".".

Mr. G. Murphy

I move amendment No. 1 to amendment No. 224:

In the inserted section 185(3), after "expertise" to insert "and experience".

Amendment to amendment agreed to.

Amendment, as amended, agreed to.

Mr. B. Lenihan

I move amendment No. 225:

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

"148.—The following section is substituted for section 186 of the Act of 2001:

"186.—(1) A person authorised under section 185 shall carry out inspections at least once every 12 months of each children detention school.

(2) Without prejudice to the generality of subsection (1), an authorised person shall, in carrying out an inspection of any such school, have particular regard to—

(a) the conditions in which the children are detained and the facilities available to them,

(b) their health, safety and well-being,

(c) policies and practice concerning the preservation and development of relationships between them and their families,

(d) policies and practice concerning their discipline, care and protection, and

(e) policies and practice in relation to the normal routine of the school.

(3) In carrying out an inspection the authorised person may hear complaints by children and for that and any other purpose—

(a) may interview them and any member of the staff in the school concerned, and

(b) shall have access to records, whether in legible or non-legible form, relating to the administration of the school and the children detained therein.

(4) The authorised person shall submit a report to the Minister in relation to any inspection carried out under this section and publish the report at the same time as it is so submitted.".".

Amendment No. 1 to amendment No. 225 not moved.

Aengus Ó Snodaigh

I move amendment No. 2 to amendment No. 225:

In the inserted section 186(2), to delete "have particular regard" and substitute "pay particular attention".

Amendment to amendment agreed to.

Amendment No. 3 to amendment No. 225 not moved.

Amendment, as amended, agreed to.

Mr. B. Lenihan

I move amendment No. 226:

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

"149.—The following section is inserted in the Act of 2001 after section 186:

"186A.—(1) Where—

(a) matters of concern in relation to a children detention school or place provided under section 161 are raised in a report of a person authorised under section 186 or otherwise, and

(b) the Minister is satisfied that it would be desirable to investigate those matters, the Minister shall appoint a person (in this section referred to as an “Inspector”) to investigate and report to him or her thereon.

(2) The Inspector shall carry out an investigation into the matters referred to in subsection (1) and such other matters relevant to them as he or she considers necessary for the purposes of the investigation.

(3) For those purposes, the Inspector may—

(a) enter any children detention school or place provided under section 161,

(b) examine the records, whether in legible or non-legible form, of the school or place, and

(c) interview members of the staff of the school, including the Director, and members of its board of management or, as the case may be, members of the staff and managers of the place.

(4) The Inspector shall submit a report to the Minister in relation to the investigation.

(5) Each such report shall, where appropriate, contain recommendations which in the Inspector's opinion require to be implemented.

(6) A copy of each such report shall be laid by the Minister before each House of the Oireachtas.

(7) Before laying a report before each House of the Oireachtas pursuant to subsection (3), the Minister may omit material from it where the omission is necessary to avoid the identification of any person.

(8) An appointment of an Inspector shall be for a specified investigation, but the Minister may appoint the same person to carry out a further investigation or investigations as the Minister considers appropriate.

(9) The appointment of an Inspector shall be on such terms and conditions as may be determined by the Minister with, in the case of any terms and conditions relating to remuneration, the consent of the Minister for Finance.".".

Amendments Nos. 1 to 12, inclusive, to amendment No. 226 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 227:

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

"150.—The following section is substituted for section 198 of the Act of 2001:

"198.—(1) The Minister may direct the transfer of a child detained in a children detention school to another such school to serve the whole or any part of the remainder of the child's period of detention if—

(a) the school to which the child is transferred caters, in accordance with the provisions of this Part, for that class of child, or

(b) the Minister considers that the transfer is necessary in the interests of the good governance of children detention schools,

and, in either case, the school to which the child is transferred provides the conditions and facilities necessary for it to achieve its principal object in the case of the child.

(2) Before giving a direction under this section, the Minister shall consult the Directors of the children detention schools from and to which it is desired to transfer the child so as to ascertain whether the transfer would be in the child's interests or whether another course should be adopted in respect of the child.

(3) A direction under subsection (1) may be given at the request of the Director of a children detention school and, if so given, this section shall apply in relation to the direction with the necessary modifications.".".

This amendment substitutes a new section for the existing section 198 of the 2001 Act. It provides for the transfer of young persons between schools if the conditions described in the section are met. These conditions are: the school to which the child is transferred must provide the conditions and facilities necessary for it to achieve its principal object in the case of the transferred child; the school must cater for the class of child transferred, bearing in mind the child's age and sex; and the Minister must consider that the transfer is necessary in the interest of the good governance of the schools. The latter condition is new and recognises that when young offenders aged 16 and 17 are detained in children detention schools, there will be no alternative places for their detention. In those circumstances, it is important to provide some flexibility, however minor, to ensure that a young offender can be transferred from one school to another if it is necessary for the good governance of that school and if there is a suitable alternative.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 228:

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

"151.—Section 215 of the Act of 2001 is amended—

(a) by the substitution of the following subsection for subsection (2):

"(2) A child found guilty in the Children Court of an offence under subsection (1) may be sentenced to detention for a period not exceeding 3 months.",

and

(b) by the deletion of subsection (3).”.

This amendment amends section 215 of the 2001 Act to allow the Children Court to impose a sentence of up to three months in the case of a child who has committed the offence of escape from lawful custody in a children detention school. The Act of 2001 created the offence of escape from lawful custody and provided that an additional three-month period of detention could be added to the child's sentence as long as the total sentence does not exceed three years. Under current provisions and circumstances, where a child is serving a maximum period of detention of three years, there will be no deterrent to escaping if the child's sentence cannot be extended. The proposed amendment is, therefore, required for two reasons: first, because the maximum three-year sentence has been amended such that a child cannot be sentenced to a longer sentence than an adult would get for the same offence, which, in practical terms, normally means 12 months; and, second, to ensure that there is a deterrent to escaping even where the child is serving the maximum sentence permitted for the offence. The amendment provides for a child who is guilty of the offence of escape to be sentenced to detention for a period not exceeding three months.

The amendment also removes the section providing that a child aged between 16 and 18 years may serve this period of detention in a children detention centre. This is consequential on an amendment already discussed and voted on.

Amendment agreed to.

Chairman

Amendments Nos. 229 and 230 and the amendments to amendment No. 230 are related and may be discussed together.

Mr. B. Lenihan

I move amendment No. 229:

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

"152.—Section 227(1) of the Act of 2001 is amended—

(a) by the substitution of “and to” for “and ensure”,

(b) in paragraph (a), by the substitution of “advise on the coordination of” for “coordinate”,

(c) in paragraph (b), by the substitution of “advise on” for “ensure”,

(d) by the substitution of the following paragraph for paragraph (c):

"(c) in consultation with the Health Service Executive, prepare and publish criteria for the admission to and discharge from special care units of children subject to special care and interim special care orders,”,

and

(e) by the deletion of paragraph (d).”.

Amendments Nos. 229 and 230 relate to the Special Residential Services Board in respect of a part of the Children Act that I, as Minister of State, commenced. The board was established because we had left three Departments in charge of the issues surrounding the custody of children. The amendments provide for the amendment of sections 227 and 230 of the Act, which relate to the functions and membership of the board. They are being tabled on foot of the Government's proposal to establish the youth justice service. The functions of the board are being changed to make more explicit its advisory role in the context of youth justice reforms.

The composition of the board is also being changed to reflect the changes regarding youth justice and the establishment of the HSE under the 2004 Act. The amendments will mean that the membership of the board will consist of a chairman and 11 other members appointed by the Minister for Health and Children, including three persons nominated by the Minister for Justice, Equality and Law Reform, three experts in child care, three persons with relevant experience in educational disadvantage or exclusion, nominated by the Minister for Education and Science, and three other persons, two of whom shall be members of the HSE.

Amendments Nos. 1 and 2 to amendment No. 230, tabled by Deputy Jim O'Keeffe, are concerned with the Ombudsman for Children being appointed to the board. I outlined in a previous amendment the statutory functions of the ombudsman. In light of the role she provides as an important, independent advocate in the protection of the rights of children, I do not believe it would be appropriate to require her to sit on the board. I cannot accept these amendments to the amendment. However, since preparing my amendments concerning the board, I have been considering its functions and I may table further amendments on Report Stage relating to possible functions for the board in regard to the guardians ad litem.

Essentially, the Special Residential Services Board was set up as an interdepartmental compromise when, under the 2001 Act, it was not possible to reduce the number of Departments involved from three to two. The board has done very good work in a number of areas in setting standards in the centres and organising training courses. It has also provided a valuable advisory service in the courts.

One of the clear intentions behind my amendments is to ensure that the different bodies that are now taking responsibility for children's services actually do so in court. Hence, the youth justice service will liaise with the courts through the probation and welfare service, which now has a dedicated team responsible for children. The HSE will be required, under statute, to attend in court when necessary. That said, the views of the Special Residential Services Board officers who attend in the courts have acquired considerable weight within the court system. Their experience in these cases and role in advising judges have resulted in a valuable resource for the State. I am anxious to see how this can be developed in the context of the acknowledged requirement to provide guardian ad litem services in the court system.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 230:

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

"153.—Section 230 of the Act of 2001 is amended—

(a) in subsection (1), by the substitution of “11” for “12”, and

(b) by the substitution of the following subsection for subsection (3):

"(3) The members of the Board shall include—

(a) three persons nominated by the Minister for Justice, Equality and Law Reform,

(b) three persons, two of whom shall be representatives of the Health Service Executive,

(c) three experts in child care, and

(d) three persons with relevant experience in dealing with issues of educational disadvantage or exclusion, nominated by the Minister for Education and Science.”.”.

Mr. G. Murphy

In light of the ombudsman's opinion on this issue, I will not move my amendments to amendment No. 230.

Amendments Nos. 1 and 2 to amendment No. 230 not moved.

Amendment agreed to.

Chairman

Amendments Nos. 231 and 291 are related and will be discussed together.

Mr. B. Lenihan

I move amendment No. 231:

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

"154.—Each provision of the Act of 2001 specified in Schedule 4 to the Criminal Justice Act 2006 is amended in the manner specified in the third column opposite the mention of that provision in the second column of that Schedule.”.

As a result of the transfer of responsibility for children detention schools from one Department to another, the former no longer has substantial areas of responsibility under the Children Act 2001. It shall, therefore, not need power to make regulations. This amendment is simply to delete certain powers in Schedule 4. As regards paragraph 1 of Schedule 4, it will delete the reference to the Minister for Education and Science, which follows from the transfer of the children detention schools. In respect of paragraphs 2 to 4, inclusive, it will amend sections of Part IV of the 2001 Act for children to be admitted to Garda diversion programmes in respect of their anti-social behaviour.

Regarding paragraph 5 of Schedule 4, it will delete section 54 of the 2001 Act which created an offence of aiding a child below the age of criminal responsibility in committing what would be for a child's age an offence. This offence was necessary when the 2001 Act provided for an age of criminal responsibility below which a child is not of the capacity to commit an offence. The normal offence of aiding and abetting still applies because of the nature of the change in the age of responsibility provision.

In respect of paragraph 6, it is a technical amendment to define the "court" as the "Children Court" for the purposes of Part 12A of 2001. This is important because it shows the anti-social behaviour orders can only be made in the Children Court.

Regarding paragraphs 7, 8, 10, 11, 17, 20, 31 and 32, it will delete references to child detention centres and junior remand centres. The Children Act 2001 provides for two systems of detention of children below the ages of 18 years. These amendments are consequential on the decision arrived earlier on Committee State to dispense with that distinction.

For paragraph 9, it will delete section 103(1)(c) of the 2001 Act, which provides for probation and welfare reports to be made available to the Special Residential Services Board. Those services will be brought together in the youth justice service. The new service will be represented in court by the probation and welfare service and will no longer require separate court officer services.

With regard to paragraphs 12 and 13, it is consequential on the removal of the separation between children aged under 16 years and over 16 years. Paragraph 21 deals with the programmes and facilities which the consequential amendment on the new functions of the children detention schools. Paragraph 22 relates to the relevant ministerial responsibilities for the appointments of boards of management at the children detention schools. Paragraphs 24 to 26, inclusive, relate to the powers and obligations of an inspector. In respect of paragraph 30, it will delete the reference to the Minister for Education and Science from the interpretation section of Part 11 of the 2001 Act.

Amendment agreed to.

Chairman

Many of the matters relating to amendment No. 232 were discussed in the context of adult ASBOs. The Minister of State may find that the amendment will be dealt with quickly.

Mr. B. Lenihan

I move amendment No. 232:

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

"PART 13

ANTI-SOCIAL BEHAVIOUR BY CHILDREN

155.—The following title and section is inserted in the Act of 2001 after section 257:

"PART 12A

ANTI-SOCIAL BEHAVIOUR BY CHILDREN

257A.—(1) In this Part—

"behaviour order" means an order under section 257D;

"behaviour warning" shall be construed in accordance with section 257B;

"child" means a child who is at least 12 years of age and under the age of 18 years;

"good behaviour contract" has the meaning given to it in section 257C;

"Programme" means the diversion programme referred to in section 18.

(2) For the purposes of this Part, a child behaves in an antisocial manner if the child causes or, in the circumstances, is likely to cause, to one or more persons who are not of the same household as the child—

(a) harassment,

(b) significant or persistent alarm, distress, fear or intimidation, or

(c) significant or persistent impairment of their use or enjoyment of their property.

(3) This Part does not apply—

(a) to any behaviour of a child that takes place before this section comes into force, or

(b) to any act or omission of a child in respect of which criminal proceedings have been instituted against the child.”.”.

This amendment inserts a new Part 13 into the Criminal Justice Bill. It also inserts a new Part 12A into the Children Act 2001. The new Part addresses anti-social behaviour by young persons from 12 years to 18 years of age. As a result of an earlier amendment, this Part will not be commenced until there is consultation with the Garda Commissioner and when I am satisfied that the necessary structures and arrangements are in place. This will entail, if necessary, ensuring a level of training of Garda personnel in the operation of the new provisions.

The committee has dealt with the issue of anti-social behaviour in some detail. The proposal to insert a new Part 12A in the Children Act dealing with anti-social behaviour will ensure the Act provides a suitable intervention for young persons who are in difficulty or conflict with the law no matter what the young person has done. One of the main features of the Children Act is its array of interventions for non-offending difficult children and those children in conflict with the law. These interventions range from family welfare conferences convened by the HSE for children in difficulty, Garda diversion for less persistent and less serious young offenders — including restorative cautioning and family conferences — court directed restorative justice administer by the probation and welfare service, non-custodial sanctions and, as a final resort, detention.

These proposals aim to fill the gap between HSE intervention and diversions which only applies where an offence has been committed. Where a young person is involved in anti-social behaviour for which the immediate response proposed is a behaviour warning — possibly a meeting with the young person and his or her parents followed by a good behaviour contract — diversion and an application for a behaviour order will only follow where the young person does not comply with the warning, does not agree to a contract or does not comply with a contract. These proposals have been devised in such a way as to be consistent with what was envisaged by the Oireachtas in the Children Act and the proposals are framed in the context of the overall philosophy and policy that underpins the Children Act. They differ in approach and emphasis from the earlier amendments considered on anti-social behaviour by persons over the age of 18 years. Every effort has been made to provide an opportunity for the child and his or her parents or guardians to address the behavioural problems in a way that minimises contact with the criminal justice system. These proposals will ensure there will be full parental involvement at all relevant stages.

The amendment proposes to insert a new section in the Bill that will be the new section 257A in the Children Act. Section 256(1)(b) contains certain definitions. A child for the purposes of this Part is a person between 12 and 18 years. The procedures in this Part will not apply to persons under 12 years of age. This is in line with the proposal on the age of responsibility. Providing 12 years of age as the starting point for behaviour orders contrasts with the UK provision, which applies to persons from ten years of age upwards. It is important to note that in light of the earlier amendments on the age of responsibility, where a ten or 11 year old can be admitted to diversion programmes, it will only arise in the context of a concrete offence. As far as the anti-social provisions are concerned, the minimum age is 12 years of age. Behaviour orders, warnings and good behaviour contracts are defined by reference to the sections dealing with them. The programme refers to the child diversion programme. Section 2 provides for the definition of anti-social behaviour. It is identical to the definition used in the case of adults.

Subsection (3) clarifies these new arrangements do not apply in respect of behaviour that occurred before this Part comes into force. Where criminal proceedings are being brought, it will not be possible to proceed in addition by way of action under this Part in respect of the same actions that are giving rise to the criminal proceedings. That is a fundamental point regarding the philosophy of the Children Act. This is a distinct part of the Act designed to deal with anti-social behaviour which does not cut across criminal jurisdiction.

Chairman

It might come into operation in about 15 years' time.

Aengus Ó Snodaigh

Exactly. If the Children Act was fully implemented, we might be halfway down that road. As far as I know, it was endorsed by all parties. There was a long consultative process and it was welcomed by most operating in this field, including those who work directly with children at risk, in schools and most official bodies. The Act was a long time in gestation and gradually parts of it came into being. Since the Minister for Justice, Equality and Law Reform announced the introduction of ASBOs last year in one of his many off-the-cuff remarks, all of a sudden there seemed to be urgency about implementing the outstanding parts in order that the Minister, when he eventually introduced the wording placed before us today, would be able to say he had gone back on his initial position. The reason he did so was that the Minister of State was, thankfully, one of those who had raised concerns. I presumed from his comments at the time that he had managed to win part of the battle in that ASBOs are conditional on the Children Act being put in place and properly resourced. My amendment suggests they should be operational and that after a period of ten years we should see if we need to revisit the issue.

The Children Act was a long time in gestation — before I was elected — and should have been implemented in full from day one in 2002 and fully resourced. We would not now need to include the provisions before us providing for behaviour wardens, good behaviour contracts and all that entailed by the remainder of the amendments before us. We might also be further down the road in ensuring the system diverts young people away not only from a life of crime but also from being detained and the effects of detention in the institutions which merely encourages them to reoffend. This happens because they are not properly rehabilitated and do not receive an education. As a society, we should ensure this happens in order that they do not end up back on the streets and being encouraged to reoffend by their peers. The Children Act was welcome because it promoted alternatives to detention rather than detention on a first offence, as some urged.

I am adamant that this amendment should be accepted. Perhaps a period of ten years would be too long, but even a period of five would allow us to receive some indication that the Children Act was working properly or that it needed to be tweaked or that we need to go down the road suggested.

Mr. F. McGrath

I support Deputy Ó Snodaigh's amendment, in particular, the important points made about the Children Act and its implementation. However, a period of ten years might be a little long. A period of five years might be better. If we were to deal with the sensible policies and proposals made in the Children Act, we might resolve many of the issues raised regarding ASBOs.

On amendment No. 232, I have major concerns about ASBOs and would expect the Minister of State with responsibility for children to adopt a different and more enlightened approach than, perhaps, the Minister for Justice, Equality and Law Reform. Part of the Minister of State's brief is to deal with complex issues such as educational disadvantage or exclusion. It is important that we focus on these issues because if one talks about anti-social behaviour and excludes educational disadvantage or children living in communities where there is social and political exclusion, one will not solve any issue.

Educational disadvantage is a major issue. While I accept we have started to put funding and resources into disadvantaged areas, especially in pre-school and child care facilities, major development is needed. It is not acceptable to see children living on certain streets in Dublin, Cork and Limerick where 29% of them are not even ready for primary school at the age of three or four years because of language and literacy problems. Some of them are living in chaotic conditions. People talk of anti-social behaviour orders but we must seriously tackle educational disadvantage and deal with child poverty and the problems they create. I am not saying all children who live in poverty become involved in anti-social behaviour. There are great examples of very poor and disadvantaged children living in blocks of flats in Dublin city who are very well behaved and get on with their lives against the odds. That does not mean, however, one should not support them politically, economically and socially.

I am also talking about the serious issue of dysfunctional and violent families. If a child lives in a family ridden by cocaine or alcohol abuse — we have all seen such families regularly in our clinics — the Minister of State should not expect him or her to be normal and balanced. Such children, between the ages of seven and 13 years, need to receive more support from the State, education services and especially the Minister of State with responsibility for children. We must face reality. Such children need help if one is to deal with anti-social behaviour.

I have serious concerns about ASBOs and how they are being approached. The way forward is the Children Act and after a couple of years, if all else has failed, ASBOs. Judging from the reaction of people I know who work with children, particularly those from disadvantaged and dysfunctional families, as legislators we need to ensure services are provided early. The earlier they are provided, the quicker one will prevent anti-social behaviour and young people from going down the road to prison. I speak as someone who worked in a school in a disadvantaged area for more than 20 years. Many of my past pupils ended up in prison because in the 1980s we had a dreadful heroin problem, particularly in the north inner city, where communities had to take a stand. Cocaine use and other issues are now on the agenda but linked to the abuse of cocaine and alcohol, as has been seen in recent cases, is the high level of violence. We all hear of the sad and tragic cases such as that of Donna Cleary from Coolock, a constituent of mine, who was shot at a party, but one does not hear of the cases which occur nightly involving four and five year old children who witness horrific violence. It is up to us and the Minister of State who has responsibility for children to ensure the focus is placed on helping such families and children rather than following the law and order brigade and the right-wing political agenda. It is popular to rant and rave about crime but we will get nowhere unless we do something about the causes of crime.

It is up to the Minister of State to consider the many creative and sensible examples of good practice. I have seen excellent examples in schools where, for example, art therapy is used to treat children displaying violent and dysfunctional behaviour. Such an approach may save them from neglect and the prospect of entering Mountjoy Prison at 17 or 18 years of age. It is necessary to be creative in funding such projects. We must target resources, particularly in services such as child care, at the most disadvantaged communities. We must tackle these problems in a strong way.

Ms Lynch

It is difficult to disagree with anything Deputy McGrath said. We are all aware of the existence of disruptive and dysfunctional families. There is undoubtedly a major impact on children who grow up in an environment where alcohol, drug abuse and violence are prevalent and where there is non-engagement with wider society on the part of their parents. Such children are at a great disadvantage compared with their peers born into a neutral environment.

It is unfortunate that the term "ASBO" has been applied to this section of the Bill. My gut reaction in regard to ASBOs, as we understand them from the British context, is that they involve a knee-jerk reaction which simply involves moving a problem from one section of society to another. This section does not correspond in any way to our general perception of ASBOs.

Mr. B. Lenihan

The Deputy will note that I have generally excised the prefix "anti" from this section and that references are to a "behaviour order".

Ms Lynch

That is my point. It is unfortunate that the prevalent perception of ASBOs has become attached to this section — that is not what I see when I read it. I watched with horror as implementation of anti-social behaviour orders in Britain seemed to consist mainly of the transfer of problems from one community to another with no intervention other than the exiling of violent young men. By contrast, this section aims for an interventionist approach. I would prefer, however, if the intervention in children's lives was not the responsibility of the Department of Justice, Equality and Law Reform in the first instance.

I agree with Deputy McGrath that there are children who stand little chance of developing into fully functioning human beings without major intervention and without many having to go through the interregnum of prison and various dealings with the criminal justice system. I have made the point several times that intervention should take place at a much earlier stage and on a more holistic basis. What is encouraging about this section is the demand that the family be involved. However, we are all aware of parents who will not co-operate, no matter how often they are brought before the superintendent or how many times a case conference is convened. This lack of interest in their children's welfare may be a result of their own upbringing.

Nobody can deny that the Children Act is imaginative and forward-looking and we all regret it has taken so long for its provisions to be implemented. I still do not know when it is envisaged that it will be fully functioning. I have asked about this twice but still do not know the answer. Assuming it is properly resourced, its full implementation will ensure there will be increasingly less need to refer to this particular section of the Criminal Justice Bill.

The Minister has won many battles on this legislation. I do not often give praise to Fianna Fáil but it is clear he has won some battles because this section bears no relation to most people's perception of ASBOs. It provides for an intervention mechanism that is designed in the main to protect children, with the added benefit of protecting communities.

Chairman

Amendment No. 232 is being discussed alone because it encompasses the principle and generality of the current discussion of anti-social behaviour orders. I hope to discuss amendments Nos. 233 to 239, inclusive, comprising the component elements of this provision, together.

Mr. B. Lenihan

This has been a useful discussion. I was interested to hear Deputy Ó Snodaigh say the Children Act should have been implemented in 2001. On my appointment as Minister of State in June 2002, I discovered this Act on my desk. I have examined the Official Report and appreciate that neither Deputy Ó Snodaigh nor Deputy McGrath had the opportunity because they were not Members of the last Dáil to question the then Minister for Justice, Equality and Law Reform when he indicated that there would be a long timescale for implementation of the Act — six or seven years was mentioned as a possible figure. When the Bill was introduced in the House, it received support from all sides and was accepted as a genuine attempt to hammer out an effective approach. It was never envisaged that it would be implemented in 2002 or 2003. However, I set myself the objective of trying to implement it within my term of office and I am pleased to inform Deputy Lynch that I believe it will be implemented, apart from two issues, within the lifetime of the Government.

We have touched on the two outstanding issues, the first of which is the question of putting family welfare conferences on a statutory basis. Doing this will require an extension of resources. Given the range of personnel involved, it would not be possible, even if the resources were available, to deploy them in the space of one year. The second issue is the question of the eventual closure of St. Patrick's Institution. I am satisfied in both instances that I have received sufficient assurances from the relevant Departments that these outstanding issues will be addressed.

Setting aside these two issues, the effect of the various sections the committee approved earlier is to accelerate implementation of the Act. Going through its sections, I discovered we had managed to implement approximately half its provisions. It was then I began to see mountains ahead of me that could not be crossed unless we looked at legal change in such cases, for example, as detention centres and schools. In 2004, therefore, I brought various matters to the attention of the Government and suggested it should establish a youth justice review group. This group produced a good report which resulted in the Department of Justice, Equality and Law Reform taking responsibility for its duties.

The question of behaviour orders arose because the Minister, Deputy McDowell, expressed concern about the entire issue of anti-social behaviour and how it could be addressed, particularly in the context of the British model. I admit I shared the reservations expressed by Deputies about the British approach in terms of age and otherwise. I agree with Deputy McGrath that the earlier we become involved in trying to improve the outcome for a child the better, in terms of educational or other interventions. We are talking about provisions that will affect children of 12 years and older, not those of four years and less. All members agree with what the Deputy said in this regard.

Unfortunately, even countries which have engaged in more extensive investment than Ireland in this regard have found that some teenagers will offend and that one must have a response for this. In these provisions, I have tried to tailor our responses to anti-social behaviour to the actual philosophy of the Children Act, which is that detention should be a last resort. We should construct as many alternatives short of it as possible, which address the needs of such children and which encourage such children or young people to desist from offending, or in this case, from anti-social behaviour.

I welcome the fact that the Minister has also tightened up the definition of anti-social behaviour. Moreover, I am glad this Part dealing with anti-social behaviour will operate altogether separately from the criminal context.

Aengus Ó Snodaigh

I move amendment No. 1 to amendment No. 232:

In the inserted section 257A, after "child.", to insert the following subsection:

"(4) This Part shall not commence without the approval of both Houses of the Oireachtas, Oireachtas approval shall be requested only after a review of the implementation of the Children Act 2001 has been completed and laid before both Houses 10 years after all sections of the 2001 Act become fully operational.".

Amendment to amendment put and declared lost.

Aengus Ó Snodaigh

As for amendment No. 233, I want to address some general issues regarding its details. The proposed section is similar to the anti-social behaviour section dealing with adults and I raised similar concerns in that regard.

Chairman

Is the Deputy referring to amendment No. 232, which pertains to the new section to be inserted after section 257 of the 2001 Act?

Aengus Ó Snodaigh

I refer to amendment No. 233.

Chairman

We should finish dealing with amendment No. 232 first.

Amendment agreed to.

Chairman

The committee will discuss amendments Nos. 233 to 239, inclusive, together.

Mr. B. Lenihan

I move amendment No. 233:

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

"156.—The following section is inserted in the Act of 2001 after section 257A:

"257B.—(1) Subject to subsection (5), a member of the Garda Síochána may issue a behaviour warning to a child who has behaved in an anti-social manner.

(2) The behaviour warning may be issued orally or in writing and, if it is issued orally, shall be recorded in writing as soon as reasonably practicable and a written record of the behaviour warning shall be served on the child and his or her parents or guardian personally or by post.

(3) The behaviour warning or, if it is given orally, the written record of it shall—

(a) include a statement that the child has behaved in an antisocial manner,

(b) demand that the child cease the behaviour or otherwise address the behaviour in the manner specified in the warning, and

(c) include notice that

(i) failure to comply with a demand under paragraph (b), or

(ii) issuance of a subsequent behaviour warning, may result in an application being made for a behaviour order.

(4) The member of the Garda Síochána referred to in subsection (1) may require the child to give his or her name and address to the member for the purposes of the behaviour warning or the written record of it.

(5) A behaviour warning may not be issued more than one month after the time that—

(a) the behaviour took place, or

(b) in the case of persistent behaviour, the most recent known instance of that behaviour took place.

(6) The child to whom a behaviour warning is issued shall comply with the demands of the warning.

(7) Subject to subsection (8), a behaviour warning remains in force against the child to whom it is issued for 3 months from the date that it is issued.

(8) If an application is made under section 257D in respect of the child, the behaviour warning remains in force against the child until the application is determined by the Children Court.".".

Aengus Ó Snodaigh

Amendment No. 233 should be tightened if the Minister of State chooses to introduce behaviour warnings. I made this point on Committee Stage with reference to adult ASBOs. The proposed section states that a member of the Garda Síochána may issue a behaviour warning to a child. If there is no witness to the issuing of such a warning, it shall be recorded in writing as soon as is reasonably practicable. Given the nature and importance of this issue, I suggest that the garda should be obliged to commit to paper a record of the warning within a week, which would be served on the child and his or her parents personally, or by post. It should be sent by recorded post to ensure delivery and receipt by the parents and the child. Moreover, two separate documents should be sent.

The warnings should be delivered personally because of the significant number of people who are functionally illiterate. Many of the individuals under discussion fall into that category, as would many of their parents. Hence, one must ensure that, when a behaviour warning is issued, it is received and its implications understood. As for the warning itself, the proposed section states that the written record shall include a statement that the child has behaved in an anti-social manner. I suggest that such a record must be detailed and must include the time and place at which the warning occurred, as well as what exactly was meant.

The proposed section 257B(5) states that a behaviour warning may not be issued more than one month after the time the incident happened. That gap is too great. If the behaviour is so serious as to warrant a warning, it should be issued within a fortnight.

Another concern, which I also raised regarding the adult ASBOs, is that there is no process of appeal against the behaviour warning. This has implications for the child in this instance, because apart from seeking an injunction, where does one make an appeal to dispute the facts? At the immediate stage, one should be able to appeal to a superintendent or someone else to ensure that victimisation of a child does not occur. Such victimisation has taken place in a number of cases with which I am familiar. A garda can pick on an individual child for some reason, often due to misidentification. Children can often be cheeky towards authority, which would confirm the garda's impression that he or she had the correct person, and matters escalate thereafter. Hence, there must be a way in which a behaviour order may be challenged, to ensure such consequences do not occur. The consequences are listed in terms of a number of behaviour warnings being in place.

These are practical issues, apart from my general opposition to ASBOs. If they are to be implemented, they should be as secure as possible and should have the interests of all at heart. Moreover, there should be no opportunity to use such orders or warnings to victimise a child who is dysfunctional, or who comes from a dysfunctional family and who consequently has been sidelined.

Chairman

These are important points. Before others members make their contributions, I ask the Minister of State to go through them in order that members become better informed.

Mr. B. Lenihan

I assume Deputy Ó Snodaigh was discussing the section generally, as I am unsure whether he has tabled amendments in this respect.

Aengus Ó Snodaigh

I have no specific amendments.

Mr. B. Lenihan

He spoke generally. He dealt with the specific issue of behaviour warnings. In that context, one must consider what is practicable for a garda who has many duties to perform with regard to a warning which has no criminal purpose or sanction attached to it. A balance must be drawn between the warning and the number of requirements which may be imposed on the garda in that regard.

I will repeat the Minister's remarks in respect of the issue of the warning's contents. He intends to table a Report Stage amendment to specify more precisely what must be contained in the warning. Similarly, I will table a matching amendment. I do not have further assurances for the Deputy in this respect. For example, the Deputy has argued that the warning cannot be issued after two weeks, whereas I have proposed one month. In reality however, there must be some regard for the practicabilities of members of the Garda Síochána performing such tasks.

As for appeals, as no criminal sanction is imposed by a behaviour warning, the reason such a warning, which is not a finding, should generate an appeal eludes me. In the course of their work, gardaí warn people about different matters. Such warnings do not generate a right of appeal to the courts. If one is stopped at a checkpoint and a garda states one should drive more carefully, one does not have a right to appeal the warning to a higher court. This legislation will put the idea of a Garda warning on a statutory basis as a preliminary measure. If anything, that tends towards constituting a protection for a young person, because it means a warning must be issued before matters are taken further.

Another point is that if the superintendent ultimately opts to go to court, it will constitute a fresh hearing on all the issues involved and is in no way connected with what went before.

Chairman

Will the Minister of State also go through the proposed new sections 257C and 257D?

Mr. B. Lenihan

The committee has dealt with the issue of behaviour warnings, as Deputy Ó Snodaigh raised his reservations in this respect. As stated, there is an amendment in this regard that will be considered on Report Stage.

Amendment No. 234 proposes the new section 157, which inserts the new section 257C into the Children Act 2001 and which deals with the question of a meeting and provides the machinery whereby a superintendent who has received a report from a garda about someone who has behaved in an anti-social way must convene a meeting. The report will be issued by the garda following the issuing of a behaviour warning. The report shall contain details of the behaviour warning and the persons who have been asked to attend the meeting with the child, such as parents, guardians and the juvenile liaison officer, if appropriate. The superintendent may ask others to attend the meeting.

The purpose of the meeting is to discuss the child's behaviour. Subsection (5) allows the superintendent to ask others to attend, including people likely to assist the child or family and may include members of the local policing forum, to be established under the Garda Síochána Act. Subsection (6) provides that the purpose of the meeting is to discuss the child's behaviour, while subsection (7) deals with the business of the meeting. The superintendent will explain the problem, which is important because it will include the victim's perspective at an early stage, and will ask the child and parents to acknowledge the problem. If undertakings are forthcoming, the good behaviour contract can be entered, which under subsection (8), can last for up to six months and may be extended by a further three months.

There are time limits to ensure that new arrangements are well focused but proportionate. The superintendent can review the behaviour from time to time under subsection (9) and the meeting can be reconvened if the child continues in an anti-social way or the parents or superintendent believe the child is likely to behave in a way that would breach the good behaviour contract. This reconvened meeting may consider a renewal of the contract. It is useful to allow parents to reconvene the meeting because it will encourage them to maintain an interest in ensuring the child does not breach the undertaking.

Subsection (11) provides for a maximum period for a renewed good behaviour contract of up to six months, with a maximum period of nine months from the original contract. Short, focused measures are more likely to produce beneficial results.

Subsection (12) provides that the arrangements for the renewal of the contract do not rule out the possibility of a separate good behaviour contract being established at some other time.

Subsections (13) and (14) deal with circumstances where the superintendent may consider options other than a meeting or a good behaviour contract. For example, the superintendent may believe that a meeting would serve no useful purpose or that the child or parents did not give the undertaking needed before the contract could be established or to address the breach.

Subsection (14) sets out the options available to the superintendent where these circumstances apply. The first option is to admit the child to the diversion programme. If the superintendent believes that participation in the programme is not appropriate, he or she may apply to the District Court for a behaviour order. This is what is envisaged by section 24 in respect of the role of the Garda superintendent. Does the committee wish to proceed to the next stage?

Chairman

Yes.

Mr. B. Lenihan

Amendment No. 235 proposes the new section 158, which inserts section 257D into the Children Act and which deals with the application to the Children Court for an order known as the behaviour order. The court deals with these applications and may grant a behaviour order on the application of a Garda superintendent. It can prohibit a child from doing anything specified in the order but the court must first be satisfied that the child, notwithstanding participation in the procedures we have already discussed, has or is likely to continue to behave in an anti-social way and that an order is necessary to prevent the child from doing so.

The court must be satisfied, having regard to the effects of the behaviour on other persons, that the granting of an order is a reasonable and proportionate response. The granting of the order cannot be an automatic response to an application. The court must give the application full consideration. The issue of behaviour warnings and good behaviour contracts arises under subsection (2). These must be set out in the application.

Subsection (3) permits discretion on the conditions and terms of the order, while subsection (4) sets out the issues which can be addressed in the order. The order may prohibit a child from behaving in a specific manner and, if necessary, in a specific place and may require him or her to comply with certain requirements relating to school attendance or reporting to a person in authority, such as a garda or teacher. In addition, the order may provide for the supervision of the child by a parent or other person with authority.

Subsection (5) ensures that where a child's behaviour results in an application for a behaviour order, he or she may not be subject to criminal proceedings in respect of this same behaviour. The superintendent must choose whether to proceed by way of this procedure or by criminal proceedings and cannot choose both procedures.

Subsection (6) deals with the duration of behaviour orders. These orders can last for a maximum of two years but a shorter period may also apply. Orders issued in the UK last for a minimum of two years but the latter is the maximum period in this country. In matters pertaining to juvenile justice, the short, focused approach is always the better approach. My scepticism about the efficacy of long, drawn out approaches can be seen in amendments I tabled earlier.

Subsection (7) provides for the variation of an order on application by a child, his or her parents or guardians, or the Garda superintendent. This can happen because of the child's change of schools, address or place of employment.

Subsection (8) provides that the party seeking the variation in the order must notify the other parties. A civil standard of proof applies in the proceedings, which is a lower standard of proof than applies in criminal cases. However, this is not the entire picture. A civil order does not entail a criminal record, a provision that is critically important. The fact that the jurisdiction here is in a unified criminal court makes a difference. Obviously, the judge must apply the civil, rather than the criminal, standard of proof but, in practice, it is a judge who exercises jurisdiction in both criminal and civil matters and is in a good position to make a realistic assessment of the kind of behaviour with which the court is presented.

In my discussions with the Minister, the point I have stressed the most is that whatever happens must come within the jurisdiction of the Children Court because it contains judges who deal continually with these cases and do not see the boundaries as clearly as an isolated court with no experience of dealing with younger offenders would when hearing an isolated application, as happens in the UK. Subsection (10) confirms the jurisdiction of the District Court.

Amendment No. 236 proposes the new section 159, which inserts section 257E into the Children Act and which deals with appeals against behaviour orders. These requirements are procedural in character and contain nothing of original interest because they deal with the regulation of an appeal.

Amendment No. 237 proposes the new section 160, which inserts section 257F into the Children Act and which deals with the question of an offence. There are two offences in this section. The first is where a child fails to give his or her name and address to the Garda under the behaviour warnings. The second is where a child, without reasonable excuse, fails to comply with a behaviour order. Although the section creates the offence of failure on a child's part to give his or her name and address to a garda, I have managed to decriminalise the stealing of apples from orchards under the age of 12.

Subsection (2) provides that a garda may arrest without warrant a child who has committed the second offence. The gardaí will have a power of arrest where there is a failure to comply with the behaviour order. The penalty for the first offence is a maximum fine of €200, while the penalty for the second offence is a fine of up to €800, a period of detention of up to three months or both. Members are familiar with the penalties for adults. Section 98 of the Children Act 2001, which sets out the range of penalties that a court may apply in the case of a child who has committed any offence, applies to these offences. This is an overarching requirement which would allow us to impose compensation orders or supervision orders for parents, rather than fines or periods of detention.

Amendment No. 238 proposes the new section 161, which inserts section 257G into the Children Act and which deals with legal aid. The intention is that legal aid be made available under these provisions.

Amendment No. 239 proposes the new section 162, which inserts section 257H into the Children Act and which provides for the making of the regulations relating to the provision of legal aid. These are standard and consequential provisions to the core provisions which have already been discussed.

Aengus Ó Snodaigh

What happens if a child and his or her family do not comply with section 257C, that is, if a superintendent sets up a meeting but the child, family or guardian do not appear? The Minister was concerned about giving additional duties to and imposing extra bureaucracy on the Garda. Superintendents will be tied down with quite a number of these meetings in some areas of Dublin city. It is difficult to have a superintendent present in some areas. Are we creating a significant additional workload for superintendents? In my area of Ballyfermot, there is no superintendent. Instead, there is a superintendent in Clondalkin because the Ballyfermot station was downgraded. Does this amendment mean that all of the relevant families in Chapelizod, Ballyfermot and Bluebell must travel to Clondalkin for such meetings?

Chairman

A superintendent does not need to be at the meeting.

Aengus Ó Snodaigh

Amendment No. 234 states that at the meeting, "the superintendent shall explain in simple language to the child and the parents or guardian what the offending behaviour is and the effect it is having".

Chairman

Yes.

Aengus Ó Snodaigh

I am not trying to pick or downgrade the person. It is an important issue, but there are some areas of this city where the behaviour covered by this amendment happens on a greater scale than elsewhere. However, those areas do not have significant levels of Garda resources. This matter ties into what the Commissioner should do.

If the superintendent will not have the time to meet the people, will the Minister of State remove the reference to the effect? It is a practical aspect that ties into how the full impact of these provisions has not been properly considered, which is one of the reasons I referred to. Perhaps the Minister of State is right and these provisions will not be used as often as presumed, but they are being sold as a panacea to many problems in our society. The provisions will not have the effect people presume. Instead, they could have a detrimental effect on the work the Garda Síochána is meant to carry out.

Mr. F. McGrath

On amendment No. 233, I accept that behaviour warnings must be issued in writing, but we should not underestimate the value of a personal visit or oral warning to the majority of children involved in these activities. They could have a significant impact on many children, not just those who are dysfunctional. It is important to make personal visits.

Community gardaí should be directly involved in these situations because they know the particular children at risk in their communities. In my area, I have seen examples of good practice where a good community garda with the right attitude, training and personal presence in the community can prevent much anti-social behaviour. I emphasise the importance of the community garda in dealing with these issues. We are not discussing anti-social behaviour or Operation Anvil.

The Minister of State referred to practical elements. It is important to face the reality that we do not have enough community gardaí. Some northside stations are doing well if they have two or three community gardaí. This urgent issue must be addressed. With the Committee on Justice, Equality, Defence and Women's Rights, I visited a police station in London's inner city that had 400 or 500 police officers, 150 of whom were designated as community police. They dealt with anti-social behaviour problems, patrolled estates, went into flats and met local residents at every street corner. Everyone in the blocks of flats and on the streets knew the officers, which is a sensible measure. Each officer spends six hours of his or her eight hour shift in the community.

We should examine this model, as we have not done enough in this regard to date. Often, it is looked down upon by the Minister for Justice, Equality and Law Reform. Compared with drug barons and crime, it is not a sexy operation, but community gardaí have a valuable role to play in society. Despite this, they are often undermined. They should be directly involved in these issues. I emphasise the personal visit by the community garda to the individual involved. Such an eye-to-eye contact and warning could have a major impact.

Section 157 in amendment No. 234 addresses the important issue of the amount of work done by juvenile liaison officers in trying to keep young people out of prison. This is referred to in section 257C(4)(d), which states that “if the child is already participating in the Programme, a juvenile liaison officer” will be asked to attend the meeting. We should closely examine this matter.

Is there a way around the issue of superintendents attending meetings? A quality community garda should suffice because the superintendent would need to deal with more serious crimes, such as violent crime or drug crime. There is an urgent need to take the community garda service seriously.

Ms Lynch

I support the idea of sending a copy of the record of an oral warning to the offender. I am receiving the distinct impression that people are speaking to the effect that only poor and dysfunctional families have children that make their neighbours' lives a nightmare. If I am getting this impression, it is clearly being said.

Approximately six years ago four teenagers from homes with professional parents were involved in the worst case of this type of behaviour I have ever encountered. They made the community a living hell. I would hate it if we gave the impression that we are discussing poor people only, as we are not. Middle class people with time on their hands are as capable of this behaviour as anyone else.

Chairman

There are two Fine Gael amendments to amendment No. 236 on appeals against the behaviour order that are not strictly technical or do not address how the amendment is phrased.

Mr. G. Murphy

On what page is the Chairman?

Chairman

The top of page 179. The Deputy is saying that a child may appeal within 28 days rather than 21 days.

Mr. G. Murphy

The normal time to make an appeal is 28 days. Why is the time allowed in the case of a child only 21 days?

Chairman

The second amendment to the amendment is to delete subsection (2) about giving notice of the appeal to the superintendent of the Garda Síochána district.

Mr. G. Murphy

The superintendent should be the notifying body.

Mr. B. Lenihan

The 21-day appeal period is normal in a civil proceeding.

Ms Lynch

When the Department of Social and Family Affairs is defending a case, the appeals period is 28 days.

Mr. B. Lenihan

A figure of 28 days applies to a summons but 21 days would be the norm.

Mr. G. Murphy

The other amendment relates to the onus placed on the child to notify the Garda Síochána when the force should be notified in any case.

Mr. B. Lenihan

This section requires the appellant to give notice of an appeal to the Garda Síochána. As I indicated in my reply to an identical amendment, this is essential if the Garda Síochána is to respond effectively.

I agree with Deputy Lynch that the problem of anti-social behaviour is not restricted to areas of relative affluence. This is an important matter in respect of the Children Act. The focus tends to be on areas of disadvantage where there tends to be a higher incidence of crime. The disposition of juvenile liaison officers, interventions and responses has reflected this. However, the problem is growing in affluent areas and the graduated responses provided for in the Children Act would be appropriate to it.

Deputy McGrath referred to juvenile liaison officers. Given the increase in the size of the force, I have made a strong case to the Commissioner and the Minister for an increase in the number of juvenile liaison officers. When the force was founded, all gardaí were community gardaí. As it has become more specialised, there is a need for more gardaí whose role is performed exclusively in the community.

Deputy Ó Snodaigh queried whether superintendents would be overworked as a result of these measures. Superintendents have distinct functions under the legislation and must exercise them. If the requirement is not included, any member of the force could apply them. Limiting those who can apply for orders to the rank of superintendent is a recognition of the gravity of the offender's position.

Amendments Nos. 1 and 2 to amendment No. 233 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 234:

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

"157.—The following section is inserted in the Act of 2001 after section 257B:

"257C.—(1) The superintendent in charge of a district, on receipt of a report from a member of the Garda Síochána in that district concerning the behaviour of a child, shall convene a meeting to discuss the child's behaviour if satisfied that—

(a) the child has behaved in an anti-social manner and is likely to continue doing so, and

(b) the child has previously behaved in an anti-social manner, but—

(i) has not received a warning in respect of previous anti-social behaviour, or

(ii) holding such a meeting would help to prevent further such behaviour by the child.

(2) A report under subsection (1) shall be prepared only after a behaviour warning has been given to the child by a member of the Garda Síochána in relation to the child's anti-social behaviour.

(3) The report shall include details of the behaviour warning.

(4) The following persons shall be asked to attend a meeting convened under subsection (1):

(a) the child;

(b) his or her parents or guardian;

(c) the member of the Garda Síochána who warned the child in relation to his or her anti-social behaviour;

(d) if the child is already participating in the Programme, a juvenile liaison officer.

(5) The superintendent may request the attendance at the meeting of such other person or persons as he or she considers would be of assistance to the child or the parents or guardian, including a member of the local policing forum (within the meaning of the Garda Síochána Act 2005).

(6) The meeting shall discuss the child's behaviour.

(7) At the meeting—

(a) the superintendent shall explain in simple language to the child and the parents or guardian what the offending behaviour is and the effect it is having on any other person or persons,

(b) the child shall be asked to acknowledge that the behaviour has occurred and to undertake to stop it,

(c) the parents or guardian shall be asked to acknowledge the child’s behaviour and to undertake to take steps to prevent a recurrence,

(d) if the child and the parents or guardian agree to give those undertakings, a document (in this section referred to as a “good behaviour contract”) incorporating the undertakings shall be prepared and, where practicable, be signed by the child and the parents or guardian.

(8) A good behaviour contract shall expire at the end of a period not exceeding 6 months from the date of the meeting but may be renewed by the child and the parents or guardian for a further period of not more than 3 months.

(9) The superintendent may from time to time review the child's behaviour in the light of the undertaking given by him or her in the good behaviour contract.

(10) If the child—

(a) has behaved, or continues to behave, in breach of the undertaking, or

(b) in the opinion of the superintendent or the parent or guardian, is likely to so behave, the superintendent may reconvene the meeting referred to in subsection (1) and renew the contract if the child and the parents so agree.

(11) A renewal of the contract under subsection (10) shall be for a period not exceeding—

(a) 6 months from the date of the original contract, or

(b) 9 months from the date of the original contract, whichever is the shorter.

(12) Nothing in this section prevents a child being the subject of a further good behaviour contract if the child and the parents or guardian so agree.

(13) This subsection applies—

(a) where a superintendent, having considered a report referred to at subsection (1), does not consider that convening a meeting under this section would help to prevent anti-social behaviour by the child concerned, or

(b) where such a meeting has been convened and—

(i) a good behaviour contract was not prepared because the child or the parents or guardian refused to give the necessary undertaking, or

(ii) the child is in breach of an undertaking given by him or her in such a contract.

(14) Where subsection (13) applies, either—

(a) the child shall be admitted to the Programme, in which case Part 4 shall apply accordingly, with any necessary modifications, in relation to him or her, or

(b) the superintendent, if satisfied that the child’s participation in the Programme would not be appropriate in the circumstances, shall apply to the Children Court for a behaviour order in respect of the child.”.”.

Amendments Nos. 1 to 3, inclusive, to amendment No. 234 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 235:

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

"158.—The following section is inserted in the Act of 2001 after section 257C:

"257D.—(1) The Children Court may, on the application of a member of the Garda Síochána not below the rank of superintendent, make an order (in this Part referred to as a "behaviour order") prohibiting a child of or above the age of 12 years from doing anything specified in the order if the court is satisfied that—

(a) the child, notwithstanding his or her participation in the procedures provided for in section 257C, has continued and is likely to continue to behave in an anti-social manner,

(b) the order is necessary to prevent the child from continuing to behave in that manner,

(c) having regard to the effect or likely effect of that behaviour on other persons, the order is reasonable and proportionate in the circumstances.

(2) The application shall indicate the extent of the child's participation in the procedures under section 257C.

(3) The Court may impose terms or conditions in the behaviour order that it considers appropriate.

(4) An order under this section may, for the purpose of protecting a person or persons from further anti-social behaviour by a child—

(a) prohibit a child from behaving in a specified manner, and, where appropriate, from so behaving at or in the vicinity of a specified place,

(b) require the child to comply with specified requirements, including requirements relating to—

(i) school attendance, and

(ii) reporting to a member of the Garda Síochána, a teacher or other person in authority in a school,

and

(c) provide for the supervision of the child by a parent or guardian or any other specified person or authority with an interest in the child’s welfare.

(5) The respondent child in an application under this section may not at any time be charged with, prosecuted or punished for an offence if the act or omission that constitutes the offence is the same behaviour that is the subject of the application and is to be determined by the court under subsection (1).

(6) Unless discharged under subsection (7), a behaviour order remains in force for no more than the lesser of the following:

(a) 2 years from the date of the order;

(b) the period specified in the order.

(7) The Court may vary or discharge a behaviour order on the application of the child concerned or his or her parents or guardian or of a member of the Garda Síochána not below the rank of superintendent.

(8) An applicant under subsection (1) or (7) shall give notice of the application—

(a) where the applicant under either subsection is a member of the Garda Síochána, to the child and his or her parents or guardian, or

(b) where the applicant under subsection (7) is the child, to the applicant under subsection (1) and the child’s parents or guardian, and

(c) where the applicant under subsection (7) is the child’s parent or guardian, to the child and the applicant under subsection (1).

(9) The standard of proof in proceedings under this section is that applicable to civil proceedings.

(10) The jurisdiction conferred on the Court by this section may be exercised as follows:

(a) in respect of subsections (1), (3) and (4), by a judge of the District Court for the time being assigned to the district court district in which the child resides at the time the application is made;

(b) in respect of subsection (7), by a judge of the District Court for the time being assigned to the district court district in which the child subject to the behaviour order resides at the time the application is made.”.”.

Mr. G. Murphy

Have amendments Nos. 1 to 4, inclusive, to the amendment been dealt with?

Chairman

They propose a change from "the Garda Síochána" to "an Garda Síochána". The Minister of State has suggested that the Parliamentary Counsel should examine this matter.

Amendments Nos. 1 to 4, inclusive, to amendment No. 235 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 236:

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

"159.—The following section is inserted in the Act of 2001 after section 257D:

"257E.—(1) A child against whom a behaviour order has been made may, within 21 days from the date that the order is made, appeal the making of the order to the Circuit Court.

(2) An appellant under subsection (1) shall give notice of the appeal to the superintendent in charge of the Garda Síochána district in which the appellant resides.

(3) Notwithstanding the appeal, the behaviour order shall remain in force unless the court that made the order or the appeal court places a stay on it.

(4) An appeal under this section shall be in the nature of a rehearing of the application under section 257D and, for this purpose, subsections (1), (3) and (4) of that section apply in respect of the matter.

(5) If on appeal under this section, the appeal court makes a behaviour order, the provisions of section 257D(6) to (8) apply in respect of the matter.

(6) Notwithstanding the appeal period described in subsection (1), the Circuit Court may, on application by the child subject to the behaviour order or the child's parent or guardian, extend the appeal period if satisfied that exceptional circumstances exist which warrant the extension.

(7) The standard of proof in proceedings by this section is that applicable to civil proceedings.

(8) The jurisdiction conferred on the Circuit Court under this section may be exercised as follows:

(a) in respect of section 257D(1), (3) and (4) as those provisions apply to the Circuit Court under subsection (4) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the appellant under this section resides at the time the appeal is commenced;

(b) in respect of section 257D(7) as it applies to the Circuit Court under subsection (5) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the child subject to the behaviour order resides at the time the application is made;

(c) in respect of subsection (6) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the child subject to the behaviour order resides at the time the application is made.”.”.

Amendments Nos. 1 and 2 to amendment No. 236 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 237:

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

"160.—The following section is inserted in the Act of 2001 after section 257E:

"257F.—(1) A child commits an offence who—

(a) fails to give a name and address when required to do so under section 257B(4) or gives a name or address that is false or misleading in response to that requirement, or

(b) without reasonable excuse, does not comply with a behaviour order to which the child is subject.

(2) A member of the Garda Síochána may arrest a child without warrant if the member has reasonable grounds to believe that the child has committed an offence under subsection (1)(b).

(3) A child who is guilty of an offence under this section is liable on summary conviction—

(a) in the case of an offence under subsection (1)(a), to a fine not exceeding €200, and

(b) in the case of an offence under subsection (1)(b), to a fine not exceeding €800 or detention in a children detention school for a period not exceeding 3 months or both.

(4) If a child is ordered to pay a fine and costs on conviction of an offence under subsection (1)(b), the aggregate of the fine and costs shall not exceed €1,500.”.”.

Amendment No. 1 to amendment No. 237 not moved.

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 238:

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

"161.—The following section is inserted in the Act of 2001 after section 257F:

"257G.—(1) Subject to subsection (2), a child who is the subject of an application for a behaviour order may be granted a certificate for free legal aid (in this Part referred to as a "legal aid (behaviour order) certificate") in preparation for and representation at the hearing of—

(a) the application,

(b) any application by the child or his or her parents or guardian to vary or discharge a behaviour order,

(c) any appeal by the child against the making of the behaviour order, or

(d) any proceedings in the High Court or Supreme Court arising out of the making of the application, the appeal or any subsequent proceedings.

(2) A legal aid (behaviour order) certificate may not be granted under subsection (1) unless it appears to the court hearing the application for the certificate—

(a) that the means of the child concerned or of his or her parents or guardian are insufficient to enable him or her to obtain legal aid, and

(b) that, by reason of the gravity of the alleged anti-social behaviour or of exceptional circumstances, it is essential in the interests of justice that the child should have legal aid in preparation for and representation at the hearing concerned.

(3) A child who is granted a legal aid (behaviour order) certificate is entitled—

(a) to free legal aid in preparation for and representation at the hearing of the application for a behaviour order and any proceedings referred to in subsection (1)(b), (c) and (d), and

(b) to have, in such manner as may be prescribed—

(i) a solicitor assigned to the child in relation to the application for the behaviour order or any application to vary or discharge it,

(ii) a solicitor assigned to the child in relation to any other such proceedings, and

(iii) if the court granting the certificate considers it appropriate, a counsel assigned to the child in relation to any other proceedings referred to in subparagraph (ii).

(4) Where a legal aid (behaviour order) certificate is granted, any fees, costs or other expenses properly incurred in preparation for and representation at the proceedings concerned shall, subject to regulations under section 257H, be paid out of moneys provided by the Oireachtas.

(5) A child applying for a legal aid (behaviour order) certificate may be required by the court granting the certificate to furnish a written statement of his or her means and the means of his or her parents or guardian.

(6) A person who, for the purpose of obtaining free legal aid under this section, whether for himself or herself or for some other person, knowingly makes a false or misleading statement or representation either orally or in writing, or knowingly conceals any material fact, is guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

(7) On conviction of a person for an offence under this section, the court by which the person is convicted may, if in the circumstances of the case it thinks fit, order the person to pay to the Minister the whole or part of any sum paid under subsection (4) in respect of the free legal aid in relation to which the offence was committed, and any sum so paid to the Minister shall be paid into and disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.".".

Amendment agreed to.

Mr. B. Lenihan

I move amendment No. 239:

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

"162.—The following section is inserted in the Act of 2001 after section 257G:

"257H.—(1) The Minister may make regulations for carrying section 257G into effect.

(2) The regulations may, in particular, prescribe—

(a) the form of certificates granted under that section,

(b) the rates or scales of payment of any fees, costs or other expenses payable out of moneys provided by the Oireachtas pursuant to those certificates, and

(c) the manner in which solicitors and counsel are to be assigned pursuant to those certificates.

(3) Regulations in subsection (2)(b) shall not be made without the consent of the Minister for Finance.

(4) Pending the making of regulations under this section, the regulations under section 10 of the Criminal Justice (Legal Aid) Act 1962 shall apply and have effect, with the necessary modifications, in relation to certificates for free legal aid granted under section 257F of this Act as if they were certificates for free legal aid granted under the Criminal Justice (Legal Aid) Act 1962.".".

Amendment agreed to.

Chairman

As we have finished Parts 12 and 13, we will adjourn. I thank the Minister of State and his officials for attending.

Progress reported; Committee to sit again.

The select committee adjourned at 1.45 p.m. until 9.30 a.m. on Wednesday, 14 June 2006.