Willie O'Dea (Limerick East, Fianna Fail)

I have thought about it but I have not changed my view. First, I do not believe it would be appropriate for the Defence (Amendment) (No. 2) Bill to unilaterally amend the Children Act. Second, and more importantly, I believe there are good reasons section 271 of the Children Act should not be repealed. The effect of section 271 of the Children Act is that any person under 18 years of age who is an enlisted member of the Defence Forces will continue to be subject to military law. The intention is that the provisions of the Children Act should not take precedence over the provisions of the Defence Acts in regard to military law as they apply to members of the Defence Forces who are under the age of 18.

In regard to the application of military law to members of the Defence Forces who are under the age of 18, first, a member of the Defence Forces may only be tried by court martial for the more serious of offences such as treason, murder, manslaughter or aggravated sexual assault if the offence was committed while on active service, which generally equates to serving on a peace support mission abroad. A member of the Permanent Defence Force shall not be sent on any such overseas mission unless he or she is over the age of 18. Second, with other less serious offences which are also offences punishable by ordinary law, if the offence was committed in the State by a person subject to military law under the age of 18 while a court marital might have jurisdiction to deal with those offences, in practice these offences would be dealt with by the ordinary courts and the provisions of the Children Act would apply.

Third, on the issue of breaches of military discipline within the code of military discipline committed by a member of the Defence Forces who is under the age of 18, it is important and proper that these offences are dealt with under the provisions of the Defence Acts. Many of the provisions in the Children Act would not be appropriate in these circumstances. In reality, however, the possibility of a member of the Defence Forces under the age of 18 years being the subject of court marital proceedings is extremely remote. It would normally take some months for the completion of an investigation into an alleged offence and for preparatory matters to be completed. Therefore, it is highly unlikely that a person who joined the Defence Forces under the age of 18 and who committed an offence which was to be dealt with by court martial would be tried before his or her 18th birthday. The danger is more apparent than real.

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