Brian Lenihan Jnr (Dublin West, Fianna Fail)

The amendments to the Criminal Justice Bill 2004 include a range of amendments to the Children Act 2001, which arise from a youth justice review initiated by the Minister, Deputy McDowell, and me in October 2004. A project team was established in the Department of Justice, Equality and Law Reform to review the delivery of youth justice services and to make recommendations on how the structures could be improved. The project team examined the system in place, consulted widely in the statutory and non-statutory sectors and compared our structures with best international practice. The team's findings indicated that the Children Act 2001 provides a sound legislative basis for a modern and progressive youth justice system that compares favourably with international practice. Most Deputies will agree with that. However, the team also found that the structures in place for the delivery of services under the Act and throughout the youth justice system are fragmented and involve a wide range of Departments and agencies that do not always work together in an effective manner.

The report of the youth justice review suggested that a single body was needed to provide clear and effective leadership across all youth justice services and to bring a coherent and co-ordinated approach to the delivery of services to young offenders. It recommended that a new youth justice service be established to provide this leadership and to develop a national strategy for youth justice. The review further recommended that the new service should assume responsibility for managing services across all areas of youth justice, including detention, community sanctions, restorative justice and the implementation of the outstanding provisions of the Children Act 2001. I brought some proposals to the Government last December on foot of the review. The Government agreed a number of major reforms to the youth justice system, including the establishment of an overall youth justice service with responsibility for all youth justice services. The Government also agreed to the drafting of legislative amendments to give effect to the proposals.

The fundamental decision to establish a youth justice service with responsibility for all youth justice matters was taken by the Government. For the first time since the foundation of the State, a single youth justice service will exist within a Government office — the office of the Minister for children — to administer these services. This is a remarkable development. I take considerable pride in the Government's decision to put in place a single youth justice service, which is fundamental to making progress. Taking responsibility for the implementation of the youth justice provisions of the Children Act 2001 was ducked when the Act was passed. It was ducked in the sense that it was not clearly or coherently stated that an agency or service was put in charge of the implementation of the Act.

The new youth justice service, which has been established as an executive office of the Department of Justice, Equality and Law Reform, will be located with a number of other services for children in the office of the Minister for children. The office, for which I will have responsibility, will place the interests of children at the heart of government and will build on what was achieved under the national children's strategy. I have outlined the responsibilities of the new office. I remind the House that the office will be responsible for policy and legislative work on child welfare and protection under the Department of Health and Children. It is essential that such work should be located with the youth justice work that will be devolved to me from the Department of Justice, Equality and Law Reform. The Departments in question will retain responsibility for these areas, but the innovative approach being pursued will provide for a more integrated and strategic approach to this issue. I attend Government meetings on these matters on a regular basis.

On the proposed amendments to the Children Act 2001 to be made in the Criminal Justice Bill 2004, the first set of amendments about which I will speak provides for the transfer of responsibility for children's detention schools from the Department of Education and Science to the Department of Justice, Equality and Law Reform, in which the youth justice service will be located. This will bring the schools in question under the same administrative structure that will develop the youth justice strategy, manage the delivery and development of non-custodial sanctions and co-ordinate youth justice services at national and local levels. It has the added benefit of bringing detention services under the strategic direction of the office of the Minister for children to ensure that detention is addressed within the wider context of children's services generally. The amendment to the definition of "Minister" provides for the transfer of these responsibilities. A number of other amendments follow consequentially from the transfer.

Education, not detention, is the core business of the Department of Education and Science. Transferring responsibility for detention to the youth justice service will allow the Department to concentrate on delivering educational services to young offenders, both in custody and within the community. The new section 159A of the Act of 2001 provides for the vocational education committees to assume responsibility for the delivery of educational services within the children detention schools. The VECs are best placed to deliver the continuity of education and training services in detention and the community that these children need. The Department is also developing an education strategy to address the wide range of educational needs of offending children.

The second matter, consequential on the first I have outlined to the House, is the abolition of children detention centres. As a consequence of the transfer of responsibility for detention for those under 16 years, the Department of Justice, Equality and Law Reform, through the youth justice service, will have responsibility for the detention of children up to the age of 18. Responsibility for 16 and 17 year olds will transfer to the youth justice service from the Prison Service. Under the Children Act 2001, children aged 16 and 17 years were to be accommodated in detention centres, separate from adult offenders, under the Department of Justice, Equality and Law Reform. While the centres were separate from those in which adult offenders were incarcerated, they could be built and constructed as integral parts of prison complexes, with a simple physical separation. This group of 16 and 17 year olds were necessarily separated from children under 16 because such children were the responsibility of another Department. Under the new arrangements, with one Department responsible for the detention of all children up to the age of 18 years, the separation at age 16 becomes redundant.

A series of amendments remove references to "children detention centres" from the Act, leaving a streamlined system based on a child detention school model for all children detention services. This model is focused on addressing the underlying needs of the offending child or youth and rehabilitating him or her. Children detention schools combine care staff with a secure setting which offers facilities and programmes specifically tailored to meet the needs of children. Under these new structures, no child will be detained within the prison system. Neither will any child be detained in an annex to the prison system. What was envisaged in the 2001 Act was that 16 and 17 year olds would be detained in what were dedicated annexes to the prison system. That is no longer provided for under this legislation. Provision is contained in the legislation to ensure St. Patrick's Institution can continue to be used on an interim basis, pending the development of the new detention schools that will be required. The underlying legislative provisions, however, can be commenced with alacrity. The new structures provided for in the amendments focus on addressing the needs of offending children within the wider strategic environment of children's services and create a single cohesive system for youth detention services.

I turn to the subject of the age of criminal responsibility. The age of criminal responsibility provided for in the Children Act 2001 is 12 years. I am anxious to ensure this aspect of the Act is commenced within three months from the enactment of this Bill. In my consideration of this issue several practical problems have arisen. There is a need to secure effective control of all prosecutions of children under the age of 14 years. Accordingly, it is proposed to require the consent of the Director of Public Prosecutions before proceedings can be taken against a child aged under 14 years. I have consulted the Director of Public Prosecutions as regards this proposal and he is agreeable to it. The current position is that the Garda Síochána can prosecute a child under the age of 14 years without the leave of the Director of Public Prosecutions.

It is essential that there be a measure of control. Children aged 10 or 11 years who engage in criminal behaviour should be accountable under the juvenile diversion programme for their behaviour. One of the effects of the original provisions of the 2001 Act was that a juvenile liaison officer could not have any dealings with a child aged 10 or 11 years who engaged in criminal behaviour. This is not a reasonable position and the provisions in the 2001 Act are to be modified to permit children, aged 10 or 11 years, to be admitted into the Garda diversion programme. Admission into the programme does not involve any conviction or culpability or reference to the character of the person concerned. The very low number of ten and 11 year olds who engage in serious criminal behaviour such as manslaughter or rape may be charged for their behaviour under another modification I am introducing to the 2001 Act. That said, the intention, subject to these reasonable amendments, is to commence the entire provision with three months of the Bill's enactment.

I turn to the subject of anti-social behaviour orders, which were subject to considerable discussion in the course of preparation of these amendments. The Minister for Justice, Equality and Law Reform, Deputy McDowell, asked me to look at this issue and devise a scheme which would be consistent with what was envisaged by the Oireachtas in the Children Act 2001. Despite this, the suggestion has constantly been made by many in the public debate that the Minister is introducing the same type of order for those under 18 years as for those over that age. That is not the case. The amendments will entail the insertion of a new Part into the Children Act to provide for anti-social behaviour orders for children aged between 12 and 18 years. The Minister in his contribution to this debate has pointed out that the proposal for anti-social behaviour orders in the case of children is framed in the context of the overall philosophy and policy that underpins the Children Act. Every effort is 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 also ensure there will be full parental involvement at all relevant stages.

Before outlining in more detail how the arrangements will work, I want to say a few words about the definition being used for anti-social behaviour. Anti-social behaviour will arise where a child causes or is likely to cause harassment or where significant or persistent alarm, distress, fear or intimidation is caused or is likely to be caused to anther person. It will also arise where there is significant or persistent impairment in the use and enjoyment of their property by the other person as a result of anti-social activity. I am ensuring a series of checks and balances is included because I do not want a situation where unreasonable complaints by, for example, some householders would result in an order being issued. While it is true that the effect of the behaviour as experienced by the householder must be a critical factor, it will, in the first instance, be a matter for the Garda to determine if, in all the circumstances, a complaint is well founded. Ultimately, it will be a matter for the court to decide. I am keen to ensure young people should not feel harassed and victimised by the new procedures but I am equally determined that we must put in place effective remedies that will address the serious problems in many neighbourhoods and town centres.

Turning to how the procedure will operate, the first step will entail a garda issuing a "behaviour warning" to the child. A warning may arise from a complaint or the direct observation by the garda of the activity in question. The warning will remain in place for three months. In cases where, subsequent to the warning being breached, an order is sought from the court, the warning will remain in place until the court reaches a decision. After a warning has issued, the local Garda superintendent may convene a meeting to discuss the child's behaviour. The meeting will be attended by the child, his or her parents or guardian, the garda who issued the warning and, as appropriate, the juvenile liaison officer and any other person whom the superintendent thinks may assist the child. The meeting may result in a "good behaviour contract". The superintendent will also have the option of referring the child to the diversion programme. This can happen at any time after the behaviour warning has issued. Where the superintendent believes a placement on the diversion programme would not be appropriate, he or she may apply to the Children's Court for an anti-social behaviour order. The parents or guardians will be required to attend any court hearings. The court will apply the civil standard in the proceedings, thus ensuring the child will not acquire a criminal record in the event of an order being granted. The court may grant the application if it considers an order is a reasonable and proportionate remedy. A child who breaches an order will be liable to a fine of up to €800 or €1,500, if costs also arise. Full rights to appeal against an order or have it varied are being provided. Special arrangements are being included to ensure legal aid is available when necessary.

I have outlined the main aspects of the new procedure. I expect we will have a further opportunity to consider the details of the proposals when the committee examines these amendments. However, it will be clear that the local superintendent will have a key role to play. I am sure we will be able to rely on the good judgment and experience of the Garda when it comes to operating the new arrangements. It is also very clear that an application for an order will arise as a last resort, after several other options have been considered and found not to be suitable. It is also worth saying that if the activity in question is sufficiently serious, the option of bringing criminal charges will remain unaffected by the introduction of anti-social behaviour orders.

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