I move amendment No. 49:
In page 54, lines 13 and 14, to delete "The Children Court when dealing with children charged with offences" and substitute "Any court when dealing with children".
I move amendment No. 49:
In page 54, lines 13 and 14, to delete "The Children Court when dealing with children charged with offences" and substitute "Any court when dealing with children".
This is a matter which was raised with members of the select committee by the social services inspectorate. The concern was that unless the Minister accepted this amendment children who came before the courts for criminal reasons would have greater rights regarding detention than non-offending children. The social services inspectorate made the point that the Bill provided for a stark contrast between rightly recognising the rights accorded to children before the courts charged with criminal offences and failing to acknowledge those of non-offending children at risk of losing their liberty. The inspectorate was strongly of the view that the principles set out in section 77(a) should apply equally to children the subject of an application for a special care order.
Section 77 establishes two principles to which the Children Court shall have regard when exercising criminal jurisdiction over children. The amendment seeks to extend these principles to any court, whether exercising criminal jurisdiction. Section 77 is the first section in Part 8 which deals with proceedings in the Children Court. The entire context is children charged with offences. It is an integral part of the main provisions of the Bill dealing with juvenile justice. It would be inappropriate, therefore, to exclude the words "charged with offences". In addition, the section proposed to be amended would not, if the amendment was accepted, be appropriate for inclusion in Part 8 which is solely concerned with proceedings in the Children Court. That being said, I can see no good reason any court, when dealing with children charged with offences, should not have regard to the principles set out in section 77. I will discuss the matter with the parliamentary counsel before Report Stage with a view to tabling a suitable amendment. Such an amendment would have to be inserted elsewhere in the Bill. The amended section 77 would have to be moved, possibly to Part 9.
I will withdraw the amendment on the basis that the Minister will look at the matter.
I move amendment No. 50:
In page 57, lines 25 and 26, to delete subsection (3) and substitute the following:
"(3) Where the child is of or over the age of 16 years, he or she shall be remanded to a place designated by order of the Minister under this section as a remand centre.".
I move amendment No. 51:
In page 57, lines 30 to 34, to delete subsection (5).
I move amendment No. 52:
In page 57, subsection (6), line 36, to delete "this section" and substitute "subsection (5)".
I move amendment No. 53:
In page 57, between lines 37 and 38, to insert the following subsections:
"(7) The Minister may by order designate as a remand centre any place (including part of a children detention centre) which in his or her opinion is suitable for the custody of children who are remanded in custody pursuant to subsection (3).
(8) The Minister may by order amend an order made under subsection (7), including an order under this subsection.".
I move amendment No. 54:
In page 57, subsection (7), lines 38 and 39, to delete "subsection (5) or (6)" and substitute "subsections (5) to (8)".
Amendments No. 55 and 56 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 55:
In page 58, subsection (9), line 1, after "practicable" to insert "and where it is in the interests of the child".
Section 89(9) requires remanded children under 16 years to be kept separate from detained children as far as practicable where a junior remand centre is part of a children detention school. The amendment will also have the effect of providing that the separation should only occur where it is in the child's interest. Modern thinking on segregation is that it may not always be in a child's interest to be separated from detainees of the same age group. There are circumstances where the interests of a child on remand might be better served if controlled association with detained children was allowed. For example, if there was only one child on remand in a centre, which can happen, particularly with females, he or she would have to be held in solitary confinement if there was segregation from children in detention. The amendment provides for association only where it is in the child's interest. This is in line with modern international thinking on segregation.
European prison rules are quite relaxed on the question. The commentary on rule 11 states:
The experience of recent years has tended to modify the views previously held about the need to segregate certain categories of prisoners. Thus, there may be some value to younger prisoners in certain circumstances in the stability that can result in participation under regime activities with older prisoners. Similarly, it may be helpful to untried prisoners for whom work or other regime experience may be unavailable or limited to have the opportunity to enjoy that which is available to sentenced categories of prisoners.
Amendment No. 56 proposes to extend the segregation provision to children aged 16 and 17 years held in remand centres. It is possible that parts of children detention centres may be remand centres as provided for in the amendment and in such circumstances segregation will be a real issue. I recommend these amendments to the select committee as being necessary in the interests of children held on remand in custody.
I move amendment No. 56:
In page 58, between lines 3 and 4, to insert the following subsection:
"(10) Where a remand centre is part of a children detention centre, a child remanded to the remand centre shall, as far as practicable and where it is in the interests of the child, be kept separate from and not be allowed to associate with children in respect of whom a period of detention has been imposed.".
In their submission the Irish Commission for Justice and Peace and the Council for Social Welfare raised the possibility of circumstances arising where a child, who needs to be on remand, but instead is in custody in an institutional setting, could be placed with remand foster carers under the section. Local authorities in England have recruited remand foster carers and there are circumstances where it may be in the interests of the child and may save the State money if such arrangements were made. I raise the issue in order that we can return to it on Report Stage and to give the Minister the opportunity to amend the legislation to reflect provisions in England that allow for the possibility of remand foster parents.
We are prepared to discuss the issue with the Deputy if he tables an amendment on Report Stage. We will, certainly, give it consideration in the interim.
I seek clarification on the section. There is no doubt that there has been a serious problem during the years in mixing remand and detention cases bearing in mind that remand cases, especially for first offences, very often relate to young children who have not been exposed to criminal activity to any great extent. Those working in children centres have expressed concern that young children in recent contact with the law are mixing with those who may be serving time for their second, third or fourth offence and about the impact this may have on their behaviour and in terms of learning about criminality while in the detention centre. The original intention was that children on remand would be kept separate from those in detention as far as practicable. Will the Minister outline what precisely what he regards as practicable in segregating the two categories of offenders? Will there be physical separation?
Yes, but this may not be physically possible for certain reasons. I stress that in all circumstances the interests of the child are paramount, including in regard to the question of segregation. The matter to which the Deputy refers is one where it would be physically impossible to do otherwise.
I move amendment No. 57:
In page 58, before section 90, to insert the following new section:
"90-Section 5 (Payment of moneys into court) of the Bail Act, 1997, is amended by the addition of the following subsection:
'(4) This section shall not apply in relation to a person under the age of 18 years.'.".
Section 5 of the Bail Act, 1997, provides that a person admitted to bail must pay into court at least one third of the recognisance entered into. Prior to the coming into effect of the Act last May there was no requirement for automatic payment of money into court and, generally, the accused person was released on a promise that the bail money would be paid into court in the event of failure to answer bail. It was expected that in applying section 5 the courts would apply the common law principle that bail cannot be set at a level which would amount to a denial of bail. The courts have generally followed this approach.
A High Court case in May 2000 confirmed this approach when it was stated: "Even then i.e. setting bail at £9 the judge should satisfy himself that the applicant in surety has the requisite funds. If not it may be necessary to fix a purely nominal figure so as not to frustrate the intentions of the court". However, in the early weeks of operation of the Act in at least two cases children were refused bail because they could not afford the small amount of bail set by the court. The judgment quoted suggests that the difficulties that arose in regard to children should disappear in the courts and the system generally should adjust to the new regime. However, children remain in a unique position and even a nominal bail figure may be beyond their means.
It is also the case that the provision of section 5 of the Bail Act, 1997, should not apply to children as one of the objects of Government policy on the treatment of child offenders, as reflected in this legislation, is that children should only be detained as a last resort and, accordingly, the remand of children on bail should always be encouraged. The courts will still have the power to set bail for children, but the amendment will avoid them being refused bail simply because they have no money with them. I commend the amendment to the select committee.
Amendment No. 1 to amendment No. 57 is not acceptable for technical and policy reasons. The Long Title makes it clear that the Bill cannot provide for substantive changes to the law concerning adults unless they are concerned with the care, protection or control of children. However, the Bail Act, 1997, only came fully into force in May 2000. The operation of the Act has been kept under review and I will ask my officials to examine any remaining difficulties regarding section 5. I cannot, therefore, accept Deputy Shortall's amendment.
I move amendment No. 1 to amendment No. 57:
To delete "in relation to a person under the age of 18 years" and substitute "in relation to a person granted bail on or after the passing of theChildren Act, 2001”.
I support the Minister's amendment. I had hoped he would avail of the opportunity to repeal section 5 of the Bail Act, 1997, which has been very problematic. He is doing so in regard to children. I am happy to withdraw the amendment if the Minister indicates that he is prepared to examine this problematic area as it applies to adults in the near future.
I can give that undertaking to the Deputy, but in the context of this legislation the Bail Act, 1997, is under review. I accept that difficulties are arising which need to be considered and addressed.
I move amendment No. 58:
In page 58, subsection (1), line 36, after "child" to insert ", who have been notified in writing of the precise date, time and place of the stage of the proceedings in question, by or on behalf of the prosecution, at least 30 days in advance,".
The amendment provides for notification of a parent before a child can be arrested under the section.
Section 91 is concerned with the attendance of parents or guardians where their child is before the court in respect of his or her criminal behaviour. It is an important section in the context of parental responsibility. Contrary to what some may think, it is not new. It replaces in an updated format section 98 of the Children Act, 1908, which also dealt with the attendance at court of the parent of a child or young person charged with an offence. It also largely reflects the drafting of the analogous section in the 1996 Children Bill.
The amendment gives me an opportunity to explain in some detail the thinking behind section 91. It has been described by some commentators as placing an unreasonable burden on parents and almost being anti-parent. It is nothing of the sort, although it will inconvenience some parents who might be in a position to attend court, but could not be bothered. It is not too much to expect parents who are able to attend court to attend, even if it is at the cost of placing them at an inconvenience.
Broadly speaking, in this context there are three types of parents of children brought before the courts on criminal charges. First, there are the parents who attend with their children. More often than not, these are the mothers who, clearly, will be unaffected by this provision. Second, there are the parents for whom attending court is an impossibility for whatever reason, or who could not be reasonably expected to attend. They will also be unaffected by this provision which does not seek to achieve the impossible or the unreasonable. Third, there are the parents who can attend, even if this involves a little inconvenience, but do not, mainly for the reasons that they do not care or are not ready to face their responsibilities as parents. It is this group which will be affected by section 91.
Why should we expect parents to attend court with their children? The most obvious reason is to make them face up to their responsibilities as parents. There is, however, more to it than that. Parents will be able to offer support to their children in a situation which, for some, despite the informality of the Children Court, may be stressful. It will also allow the judge to question the parents on matters which could be relevant to the nature of the penalty imposed. Section 91(5) so provides. The parents can also be advised on how to help their children avoid potential situations conducive to further offending. It is in the interests of all the parties, the parents, their children and the court, that parents attend court with their children.
That brings me to the amendment which is mainly procedural in nature and would not affect the principles underpinning the section. I say that now because the next amendment tabled by Deputy Shortall would undermine the operation of the section. Young persons can be brought before the court in more than one way. More often than not, proceedings are commenced by way of a summons and, where that is the case, the parents may be named on the summons and automatically expected to attend court. All the necessary details will be contained in the summons. This is provided for in section 64 which also provides that the summons will specify the requirements about attendance at court and the possible consequences of non-attendance without a reasonable excuse.
Sections 62 and 63 are also relevant as they deal with the situation where the child is charged with an offence and the consequent notification of the proceedings to the parent. If section 62 is examined, it will be seen that it deals comprehensively with the notification to the parent of all the details of the child's appearance in court, regardless of whether the parent attended the Garda station when the child was questioned. Section 63 deals with the notification of another adult of the time, date and place of the proceedings in the absence of the parents.
The amendment is unnecessary because the question it raises, the notification to the parents of the time, date and place of the proceedings, is comprehensively catered for. It would also be overly prescriptive and overlooks situations where the child is charged with an offence. Accordingly, I am unable to accept it.
I do not disagree with any of the principles the Minister sets down regarding parents' responsibilities, but I am talking about fair play for parents in this position. The Minister has spoken of a number of situations where parents would be notified or where people would be summonsed. Are there any circumstances under which parents would have to appear in court and where they would not be notified in writing?
I cannot think of any situation where that could occur. I am prepared to consult with the parliamentary counsel to ascertain if he can think of one because I cannot.
I will withdraw the amendment on that basis and seek clarification from the Minister on Report Stage.
I move amendment No. 59:
In page 59, lines 5 to 8, to delete subsection (3).
The Minister has already referred to this amendment.
Yes. I suggest that the following lines be deleted: "Failure by the parents or guardian, without reasonable excuse, to attend any such proceedings shall, subject to subsection (5), be treated for all purposes as if it were a contempt in the face of the court". This subsection strikes me as being unconstitutional. A statute cannot create a statutory offence equivalent to contempt of court or contempt in the face of the court. Apart from anything else, failure to attend is not contempt in the face of the court by any means. It is either an offence or it is not. To say that it should be treated as if it was contempt in the face of the court is crazy. There is no basis for this nor is there for bringing charges on those grounds. I seek advice from the Minister in respect of the constitutionality of this subsection.
The amendment seeks to repeal section 91(3) under which parents can be held in contempt of court for failure to obey a court order to attend court with their children. I have spoken in some detail in my response to the previous amendment on the reasons parents should attend court with their children, and there is no point in my going over that ground again. Section 91(1) requires parents to attend court with their children. This is subject to section 91(5). Section 91(2) deals with the situation which will arise where parents fail to attend proceedings without reasonable excuse. The court will have the power to issue a warrant commanding the parents to be produced before the court. Failure by the parents to attend without reasonable excuse would be contempt of court. If the provision provided for in section 91(3) was deleted, there would be no mechanism for enforcing their attendance and section 91 would be worthless and toothless.
There is nothing unreasonable about section 91. Parents are not expected to do the impossible. If they have a reasonable excuse, they can be excused from attending court. Section 91(5) is very clear in its intent. Parents can be excused from attending if the court is of the opinion that the interests of justice would not be served by such attendance. This is an important section, the success of which will depend on the ability of the court to ensure parents attend, where possible, with their children. The amendment would remove that ability of the court and, for that reason, I cannot accept it.
The Minister spoke of failure to turn up in court as being contempt of court. He did not use the term "contempt in the face of the court" in his reply. That is the reason I am amazed by the wording of the Bill. Why not state that failure to turn up is contempt of court rather than that it will be treated for all purposes as if it was contempt? It does not make sense. It is either contempt or it is not. It is, certainly, not contempt in the face of the court.
Often there are no hard and fast explanations for matters such as this. If it was a higher court, such as the High Court, it would be contempt of court. Since most of these matters are dealt with in the District Court or the Children Court, it is described as contempt in the face of the court. It must be described as such as opposed to contempt of court to keep it within the remit of the District Court. That might sound strange, but many things in life are strange and difficult to explain.
That reassures me.
I move amendment No. 60:
In page 60, between lines 31 and 32, to insert the following definition:
" 'children detention centre' means any place designated as such by the Minister under section 150(1);".
I move amendment No. 61:
In page 61, to delete lines 10 and 11.
I move amendment No. 62:
In page 62, paragraph (h), line 14, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 63:
In page 62, subsection (2), lines 35 and 36, to delete "whether in his or her opinion any wilful lack of care or control" and substitute "whether, and if so how, in his or her opinion any lack of care or control".
This is a technical amendment which deals with the preparation of a probation officer's report for the court. Under section 99(2) the court may request that the report indicate whether any wilful lack of care or control by the parents contributed towards the child's criminal behaviour. The purpose of the amendment is to delete the word "wilful". Based on the information contained in the report the court will decide whether there was a lack of care or control by the parents and, if so, whether it was wilful. In other words, it is the function of the court, not the probation officer, to decide on wilfulness.
The report in this respect will be the main source of information to the court for a parental supervision order or where the payment of compensation by the parents is being considered. Before making such an order the court must be satisfied as to the wilful failure of the parents to care for or control the child. This is provided for in sections 111(1) and 113(2). I commend the amendment, which will remove an inappropriate duty from the probation and welfare service, to the select committee.
I move amendment No. 64:
In page 63, subsection (4), lines 5 to 7, to delete paragraph (b) and substitute the following:
"(b) (i) the child was the subject of a probation officer's report prepared not more than 2 years previously,
(ii) the attitude of the child to, and the circumstances of, the offence or offences to which that report relates are similar to his or her attitude to, and the circumstances of, the offence of which the child has been found guilty, and
(iii) the previous report is available to the court and the court is satisfied that the material in it is sufficient to enable it to deal with the case.".
The primary purpose of the amendment is to ensure that when a judge requests a probation officer's report solicitors do not submit old reports which may be out of date and may relate to offences different from those of which the young person has been found guilty. Section 99(4)(b) gives the court authority not to request a probation officer's report where it is satisfied that the material contained in a previous report is sufficient to enable it to deal with a case. The reason for this provision is to ensure reports are not prepared unnecessarily due to relevant and up-to-date material already being available.
The amendment brings more clarity to the circumstances where the court can use an existing report. These circumstances are: the report must not be more than two years old; the child's attitude to the offence and the circumstances of the offences set out in the report are similar to those relating to the offence for which the child is before the court; the existing report is available to the court and the court is satisfied that the material contained in the report is sufficient for the case to be dealt with.
The amendment will ensure material contained in a report on which the court will make a decision is always relevant and accurate. I commend the amendment to the select committee.
I move amendment No. 65:
In page 64, subsection (1), between lines 35 and 36, to insert the following:
"(c) the Special Residential Services Board established pursuant to section 226,".
I move amendment No. 66:
In page 64, subsection (1)(c), line 38, to delete "and" and substitute the following:
"(d) where the court imposes a period of detention in a children detention school or children detention centre, the Director of the school or person for the time being in charge of the centre, as appropriate, and".
The purpose of the amendment is to ensure that where the court imposes a period of detention on a child, the person in charge of the place to which the child is referred will have access, at the discretion of the court, to a copy of the probation officer's report. This provision is important as that person, whether the person in charge of a children detention centre or the director of a children detention school, will be responsible for the offender's training, education, treatment, rehabilitation, reintegration and so on. It is essential that if the person in charge is to carry out his or her responsibilities in that respect, details of the young offender's background, crime, motivation and so on be made available early in the period of detention. This type of material will only be available in the probation officer's report.
I move amendment No. 67:
In page 66, line 11, to delete "half".
The amendment proposes to delete the provision that a fine shall not exceed half the amount which the District Court can impose on a person of full age. The Minister is keen on arbitrary rules, but there is much to be said for leaving this matter to the discretion of the judge. In some circumstances half the fine applicable to an adult would be a lot of money for a child while, in others, it may be of no consequence and would not constitute a deterrent. Individual circumstances should be taken into consideration. That is the reason the amendment proposes to delete this provision and leave the decision to the discretion of the judge.
Section 108 provides that a fine imposed on a child cannot exceed half that which can be imposed on an adult for the same offence. Although section 108 is virtually identical to section 86 of the 1996 Bill, it did give rise to some comment on the basis that children would not have the money to pay fines. I do not accept this argument.
Under the Bill, the definition of children includes persons up to 18 years of age. Many younger children have part-time or temporary jobs. I would not accept the implications of the amendment that children have the same means as adults to pay fines, although section 109 gives clear guidelines to the courts concerning present and future means to pay.
The question of providing for fines as a penalty had to be faced in this legislation as the current law is, to say the least, unsatisfactory and dates back to 1884. For example, a child under 15 years can only be fined a maximum of £2 for a summary offence tried summarily. A child tried summarily for an indictable offence can be fined a maximum of £2. A young person aged 15 or 16 years summarily tried for an indictable offence can be fined a maximum of £10. A young person summarily tried for a summary offence can be fined the same as a adult.
I admit that, given the antipathy of some to the imposition of fines on children, I was anticipating an amendment opposing section 108. The amendment would do the opposite, however, in that it would treat children the same as adults with regard to the imposition of fines. There is a certain logic to the amendment in that other penalties for offences, such as detention, have, in some circumstances, the same maximum for all persons found guilty or convicted, regardless of age. On the other hand, one of the purposes of the Bill is to provide the courts with an intervention and penalty structure suited to children. For example, the restorative provisions and the community sanctions are specifically designed for children, as is the fines structure.
Despite the potential earning capacity and the obligation of the court to ascertain ability to pay, children could not be expected to have the same disposable cash as adults. Therefore, section 108, in proposing that the maximum fines payable by children should be no more than half those payable by adults in respect of the same offences, should remain part of the Bill and, despite what I referred to as a certain logic in the amendment. I am not prepared to accept it.
I move amendment No. 68:
In page 67, subsection (6)(c), line 19, after "child" to insert "to the best of the parent's ability".
The amendment which concerns parental supervision orders proposes that we amend section 111(6)(c) to read "adequately and properly to control or supervise the child to the best of the parent's ability except where the terms of any community sanction imposed on the child make such control or supervision impractical". It is wrong to enable a court to require a parent to adequately and properly supervise a child when it is clear that he or she is incapable of doing so. There are umpteen circumstances in which it is not possible for a parent to adequately supervise a child. I am thinking of situations where the parent is on his or her own, or where he or she has serious health or addiction problems. It should not become a criminal offence if parents in such circumstances fail to supervise children.
It is reasonable that we include the proviso that a parent will be expected to supervise a child to the best of his or her ability. We would all like to see situations in which parents are responsible and capable of controlling and supervising children. There are many situations, however, in which that is not possible. Many cases result from disinterest or lack of skills. There are also many cases, however, mainly concerning health problems, in which a parent may not be able to engage in such supervision. We should safeguard the rights of parents by stipulating that we expect them to supervise their children to the best of their ability.
I have some sympathy with the amendment as members come from constituencies where some parents do not have parenting skills.
Section 111 is an important provision which introduces a parental supervision order into law. The purpose of the section is to give the court power to deal with the small number of parents who do not control their children and who, in effect, turn a blind eye to their criminal behaviour. The order offers a carrot and stick approach to such parents. Before the court can consider imposing a parental supervision order, several conditions must be met. First, the child must have been found guilty of committing an offence; second, the court must be satisfied that a wilful failure on the part of the parents to take care of or control their child contributed to the child's criminal behaviour; third, before making a parental supervision order, the court must obtain and consider information about the family and the social circumstances of the parents and the likely effect of the order on those circumstances; and fourth, the parents have a right to be heard by the court before the order is made. It is clear that there are enough safeguards to ensure inappropriate orders are not made. These include the safeguard that the parents have the ability to control or supervise their child. Accordingly, there is no need, on balance, for the amendment. I will, however, consult the parliamentary counsel about the matter before Report Stage as there is nothing in the amendment which would conflict with the policy set forth in the section. I cannot give an undertaking on the outcome of these consultations, but we can, certainly, discuss them again with the Deputy on Report Stage.
Is there a likelihood that a parental supervision order would be made in circumstances where the child is bullying the parents? It regularly happens that the child is so out of control they intimidate, including physically, the parents.
I know what Deputy McGennis is referring to, but that is not the position envisaged.
I move amendment No. 69:
In page 68, subsection (1)(a), to delete lines 18 and 19 and substitute the following:
"(iv) if it is satisfied that the failure constitutes contempt of court, take such steps by way of punishment of the contempt as it has jurisdiction to effect,".
This is relevant to what we were talking about earlier in respect of amendment No. 59. I am suggesting that we delete lines 18 and 19. Section 112(1)(a)(iv) states that the court may "treat the failure to comply with the order for all purposes as if it were a contempt in the face of the court". I cannot understand this wording which seems very loose and sloppy. Something should either be an offence or not. Failure to turn up is either a contempt of court or it is not. Why are we talking about treating it as "if it were a contempt"? When I consider the phrase "contempt in the face of the court" I think of somebody throwing a tomato at a judge. I accept that failure to turn up should constitute contempt of court. The wording is very poor and the provision could be found to be unconstitutional.
These arguments have already been made.
Far from being very poor, the wording has been very carefully chosen. The difficulty is that if a contempt is committed outside a court, it can only be punished by the High Court and cannot be dealt with in the District Court. We are talking here about the Children Court. The reason the phrase "in the face of the court" is inserted is that if we said "contempt of court", it could mean outside or in the court and anything that happened outside the court could only be punished in the High Court. The wording used will enable the District Court to deal with the offence and keep it within its jurisdiction. I appreciate that the wording sounds rather strange.
Amendment No. 70 is in the name of Deputy Shortall. Amendment No. 71 is related and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 70:
In page 69, subsection (1)(a), line 27, to delete "with his or her consent".
The amendment concerns orders relating to parents or guardians. The section states:
Where a court is satisfied of the guilt of a child it may:
(a) order a parent or guardian, with his or her consent, to enter into a recognisance to exercise proper . . . control.
That is fine. The section continues: "if the parent or guardian refuses to consent to such an order and the court considers the refusal unreasonable", it can treat the refusal for all purposes as if it was a contempt of court. There does not seem to be much choice for parents. I do not know the reason an order cannot be granted without the consent of the parents. In an ideal world parents would accept there is a problem and agree to act responsibly. In circumstances where this may not happen, why does the section require the consent of parents and state that if they fail to comply with the order, they will be guilty of committing an offence? It would make more sense for the court to be able to order the parent or guardian to enter into a recognisance to exercise proper control. Why is there a need for the consent of the parents in this regard? While I appreciate the thinking, which is similar to that which underlies family conferences, etc., and we should be striving for parents to become involved in a responsible and wholehearted way in rehabilitating their children, surely the court should make orders irrespective of the parents' consent. By virtue of the fact that they do consent, if the orders are not carried out, the section states that they will be in contempt of court. I cannot understand the thinking behind this or the reason for including it in the Bill. The court should be in a position to order parents to deal with the problem.
Section 114 gives the court power to order a parent or guardian of a child found guilty of an offence to enter into a recognisance to exercise proper and adequate control over their child. The consent of the parent or guardian is required for the making of the order. The section updates an analogous provision in section 99 of the Children Act, 1908 in a modern, workable format with suitable built-in safeguards. The recognisance cannot exceed £250 and can only be forfeited where the child is found guilty of another offence during the period of the recognisance and the court is satisfied that the failure of the parent or guardian to exercise proper and adequate control over the child contributed to his or her committing the offence.
In addition, in fixing the amount of the recognisance the court must give consideration to the present and future means of the parent or guardian. As with other provisions in the Bill, it would be useless if it did not have some means by which it could be enforced. The method I have chosen is one by which the court seeks the consent of the parent or guardian to enter into a recognisance to exercise proper and adequate control over the child. Where consent is given, there is no problem; where consent is withheld, the court must decide if the refusal is unreasonable. It is for the court to decide what is unreasonable based on the facts of each case. Where the court considers the refusal to be unreasonable, some form of sanction is required and the one I have provided for is contempt of court.
The amendments would remove the requirement for the court to obtain the consent of the parent to the recognisance. The court would be left with the power to order the parent to enter into a recognisance to exercise proper and adequate control over the child. Failure by the parent to do so would be a breach of a court order and would be dealt with by the court as such. Failure to obey a court order for the payment of a sum of money amounts, at least technically, to a contempt and could be dealt with in that manner by the courts. In practical terms, that would be the effect of the amendments.
The wording of section 114 is definite and leaves nothing to chance. The effect of the amendments could in the end make little practical difference. Obtaining the consent of the parents to the recognisance should result in higher compliance rates than if the binding over was the result of a court order without prior consultations. In other words, I am trying to bring parents on board in dealing with a child offender and get them to comply and assist. That is the best way of dealing with offences in the context of children and ensuring the child develops in as normal a way as possible. If I was to do it the other way, there would be a court order and no need for the parents' consent.
Everyone will agree that a certain degree of compliance and voluntary effort on the parents' part would be far more beneficial from the child's perspective than a direct order from the court instructing parents to take a particular course of action. It is human nature for people to prefer to do something of their own volition. Unfortunately, if people do not act properly in a child's best interests, sanctions must be provided for. The words "contempt of court" are used for the simple reason that people are actually in the court.
We would all love to see a situation in which parents act responsibly and are involved in the supervision of their children. Under the Bill, as drafted, large numbers of parents could nominally consent to supervise their children because failure to provide such consent would leave them open to a contempt of court charge. Such consent would, probably, end up being relatively meaningless. This is a case of Hobson's choice.
The approach taken in the earlier stages of the juvenile justice system is laudable in attempting to bring parents to a position where they will accept responsibility. However, expecting people to consent before the court for the sake of it will prove meaningless. The Minister may be able to produce positive statistics to the effect that a particular number of parents gave consent in the court, but parents do not have a choice to do otherwise. As currently worded, this provision is somewhat misleading and does not constitute good law.
There is a certain degree of logic in the Deputy's comments. On balance, however, many parents will be sufficiently generous to wish to assist the court and they should be given the opportunity to consent rather than being coerced into it.
The Minister is forcing them to give such consent through the wording of this provision. People have no choice, but to give consent.
If they do not consent, they can be found in contempt of court.
That is the way of the world. The alternative is to make an order and not provide for any sanctions. That would be illogical.
I am not suggesting that, but why pretend people have choices when they do not?
I am attempting to incentivise parents to assist their children.
There is no incentive in the absence of choice.
Would it be beneficial if the consent was to be optional? Would the judge take that into consideration in particular cases?
All parents would be advised to give consent in those circumstances because they would leave themselves open to a contempt of court charge were they not to do so.
I move amendment No. 71:
In page 69, subsection (1), lines 29 to 33, to delete all words from and including ", and" in line 29, down to and including "court." in line 33.
I move amendment No. 72:
In page 79, lines 33 to 35, to delete subsection (6) and substitute the following:
"(6) Subject to subsection (7), the period of intensive supervision shall-
(a) commence on a date to be determined by the probation and welfare officer supervising the child,
(b) not exceed 180 days, and
(c) where it exceeds 90 days, be subject to review by the court after it has been in operation for 60 days.
(7) On a review of a period of intensive supervision in accordance with subsection (6)(c), the court, having heard the child, his or her parents or guardian and the probation and welfare officer supervising the child, may-
(a) reduce the period to 90 days, or
(b) affirm it.".
The amendment increases the maximum number of days a young offender can remain under intensive supervision from 60 days to a potential 180 days when a probation intensive supervision order has been imposed by the courts. I am advised by the probation and welfare service that it now considers 60 days too short in many cases to achieve its goal under section 125. Accordingly, I am proposing in the amendment that the maximum number of days for which intensive supervision can be imposed will be 180 days. However, where the number of days imposed exceeds 90, the order will be subject to further review after 60 days. As part of the review, the court will be able to hear the views of the child, his or her parents or guardian and the supervising probation and welfare officer. It can then decide whether to reduce the number of days to 90 which it could do, for example, if it was to consider that was all that was required for the order to be successful and achieve its purpose, or it can affirm the original period of intensive supervision which could be anything from 90 to 180 days. I commend the amendment to the select committee.
I move amendment No. 73:
In page 89, before section 140, to insert the following new section:
"140.-An order which imposes a community sanction on a child for an offence and which is in force shall cease to be in force on the child commencing a period of detention for another offence.".
This redrafting of section 140 gives effect to a technical amendment. At present, section 140 deems that a community sanction can be revoked if a period of detention is subsequently imposed for another offence. That does not allow, however, for a situation where the detention may be suspended or successfully appealed. Under the amendment, the community sanction will be deemed to be revoked only where the young offender has actually commenced a period of detention imposed for a subsequent offence, as intended by the existing provision. Where the detention is suspended, for example, the community sanction may remain in force. I commend the amendment to the select committee.
Acceptance of the amendment involves the deletion of section 140.
I move amendment No. 74:
In page 90, lines 4 and 5, to delete "place of detention" and substitute "children detention centre".
I move amendment No. 75:
In page 90, subsection (1), line 7, after "that" to insert "the child does not have a serious psychiatric disorder or profound learning disability,".
The amendment proposes that the court should not make an order imposing a period of detention on a child unless it is satisfied that the child does not have a serious psychiatric disorder or profound learning disability. Very often psychiatric problems, serious disorders or learning disabilities were not recognised in children who got into trouble with the law and were sent to detention centres which were not in a position to provide appropriate care. Children in these circumstances need specialist psychiatric or psychological help and children centres are not geared towards catering for these requirements. Such children should not be referred to or detained in children centres. They need appropriate psychiatric and health facilities which would be under the jurisdiction of the health service, not the Department of Education and Science.
I cannot recommend that this amendment be accepted. The purpose of section 143 is to ensure detention is used as a last resort in respect of children found guilty by the courts of committing an offence. It is, therefore, inappropriate to confuse it with the issue of dealing with children who may have a psychiatric disorder or profound learning disability.
Under section 78, a court may adjourn the proceedings against a child and direct a health board to investigate his or her circumstances. It can do this when it considers that it may be more appropriate for the child to be dealt with under the terms of the Child Care Act, 1991. If the court adjourns the proceedings under this section, it will give rise to the convening of a family welfare conference under Part 2 of the Bill. When a conference has been held the health board may apply for a supervision or special care order in respect of the child. Alternatively, it may provide other services or assistance for the child and his or her family. The board is obliged to inform the court of any decisions it makes.
Where the child is suffering from a serious psychiatric disorder or profound learning disability, it will be more appropriate to provide services for him or her under the terms of the mental treatment Acts which are being reformed and updated by the Mental Health Bill which is before the Oireachtas. The provisions of the Bill include within its definition of mental illness significant intellectual disability. Section 24 of the Mental Health Bill, 1999, provides a mechanism for the involuntary admission of children under 18 years to a psychiatric hospital it they are suffering from a mental disorder. In keeping with the approach adopted in the Child Care Act, 1991, in relation to children at risk, the involuntary admission of mentally disordered children is subject to parental consent or an order of the District Court. Where a health board believes that a child is mentally disordered or where the parents cannot or will not consent to treatment, the health board may make an application to the courts for an order permitting the involuntary admission of the child for psychiatric care and treatment. An order for the child's detention and treatment may be renewed by the court after 28 days, three months, six months, 12 months and annually thereafter. If the court is satisfied that a child before it is suffering from a mental disorder, the above provision will be a more appropriate mechanism for placing the child in the care of the psychiatric services. It should be borne in mind, however, that the criterion for detention in such a case would be the severity of the child's illness. Detention in a psychiatric facility as a form of punishment for the offence committed by the child would not be acceptable and would be contrary to Euroean human rights law.
The concerns of the Deputy are covered by these provisions. I hope she agrees with me and withdraws her amendment.
I would like to think that matters will be as the Minister suggests. However, with the division of responsibility for children among so many Departments the current juvenile justice system is incapable of providing a child who comes before the courts for criminal offences arising from a disorder with the required expertise and specialist intervention. The Garda, probation and welfare service and detention centres have great difficulty gaining access to any child psychiatric service. The staff of children centres often identify a child as having a psychiatric disorder or learning difficulty, but the required help is not available through those channels. There have been umpteen cases in which the Government has been taken to court because there is no proper co-operation between the various Departments which have responsibility for children. A child who has a psychiatric problem or learning disability should not spend time in a detention centre. That is not fair to the child, it is not be possible for the staff in a centre to meet the needs of such a child and it, certainly, is not fair to other children in the centre.
I move amendment No. 76:
In page 90, subsection (1), lines 8 and 9, to delete ", in the case of a child under 16 years of age,".
The effect of the Deputy's amendment would be to delete from the section references to children under the age of 16 years. The effect would be that all children under the age of 18 years on whom detention orders were imposed by the courts would be referred to children detention schools.
The age of 16 years is an unnatural cut-off point. The aim should be to provide appropriate educational services until the age of 18 years. The Department of Justice, Equality and Law Reform is taking responsibility for those over the age of 16 years. It would be more appropriate if the Department of Education and Science continued to provide care until the age of 18 years. This provision presumes that the justice sysem can adequately cater for young people from the age of 16 years, but that is not the case. It would be more appropriate for the education service, through the children centres, to cater for the needs of children until the age of 18 years.
I support the amendment which is in line with national and international definitions of and requirements with regard to children's rights.
Section 143 is a general provision giving effect to the principle of detention as a last resort. Because of fears that a revolving door system might evolve in children detention schools it was decided, among other additions to the Bill which were not provided for in the 1996 Bill, to make it clear that when imposing detention on a young person under 16 years of age the court had to be satisfied that a place in a detention school was available for him or her.
The effect of the amendment would be to delete from the section the reference to children under 16 years of age, the effect of which would be that all young people under the age of 18 years on whom detention orders were imposed by the court would be referred to children detention schools. That would be unacceptable to me and my colleagues, the Ministers for Education and Science and Health and Children. In 1995 the then Minister of State brokered an agreement between the three Departments regarding the responsibilities of each in relation to the provision of places of detention for young offenders and residential places for out-of-control non-offending children. That understanding is reflected in Part 2 of the Bill with regard to the responsibilities of the Department of Health and Children and in section 147 with regard to the responsibilities of the Departments of Justice, Equality and Law Reform and Education and Science. The amendment presented by Deputy Shortall conflicts with section 147 which states that 16 and 17 year old detainees will be detained in what we are now calling children detention centres.
It is extraordinary the Minister is talking about brokering a deal between the various Departments that have legal responsibilities to provide for the needs of children. That is a far cry from meeting the needs of children in a child centred way. Is this about facilitating senior civil servants and dealing with an unwieldy public service institution or about meeting children's needs at the level they are at currently? That type of language and approach should have no place in a proper child care service. Getting one Department to take responsibility at last for under 16 year olds on the basis that someone else will deal with those over 16 years of age is not an acceptable approach.
The reality is the Government and the country generally over many years have failed the majority of the young people coming before the courts. We have failed to meet their educational and social needs. The majority of those children are educationally disadvantaged. They are not children who have come through the system successfully. By and large they are children who have dropped out of the education system at the age of 11, 12 or 13, they have serious literacy problems, they never got a fair chance with the education system because it is underfunded or whatever and they come from disadvantaged areas. Their needs are very much educational needs and the reason they are being detained is that the education system failed them and, in many cases, failed them miserably.
For that reason, there must be a strong emphasis on compensating for the failure of the State to provide education services in the past. There is a strong case for the State deciding to compensate and provide the type of education services those young people should have been entitled to in the first place. For that reason, there is a strong case for the Department of Education and Science retaining responsibility for providing services for young offenders up to the age of 18 - for as long as they are children. As Deputy Barnes said, doing otherwise is in breach of our commitments under the UN Convention on the Rights of the Child.
It is a fact of life that a number of Departments have appropriate responsibility for children of varying ages. That is a reality. This legislation, which is quite radical in its underlying philosophy, aims at improving the current situation.
When Deputy Currie was Minister of State with responsibility for children, he produced legislation that was altered to the extent it was unrecognisable. Therefore, we brought forward this new legislation. However, that does not mean that Deputy Currie, when Minister of State with responsibility for children, did not make a significant contribution. He did. One of his contributions was to ensure children did not fall between two or even three stools. That is why he took the practical and laudable step of ensuring that in the future there would be clear guidelines for each Department on the children for whom they are responsible. That was a responsible and right thing to do.
I am not for one moment suggesting everything was rosy in the garden. I could not do that nor would I be able to justify it if I did. I am saying we must be pragmatic about this. This legislation is geared towards the best interests of the child, towards putting in place the best legislative framework and ensuring that into the future all the children to whom Deputy Shortall referred will be given an opportunity in life in so far as the State can present it.
I see no circumstances where one could claim it is in the best interests of children to be in the care of the Department of Justice, Equality and Law Reform, given its record. I am pressing the amendment.
I thank the Deputy for her tribute.
The record speaks for itself.
I move amendment No. 77:
In page 92, paragraph (b), line 36, to delete "place of detention" and substitute "children detention centre".
We will commence on section 149 tomorrow morning.