Dermot Ahern (Louth, Fianna Fail)

It does, absolutely. I take this opportunity to clarify this point of law. Many well-meaning individuals have made different suggestions to address this concern. However, if we are not careful, rather than solving the issue we may add to the problem and reinforce the perception that these children had criminal records.

The majority of children committed to industrial schools were committed by the District Court under section 58(1) of the Children Act 1908. The provision allowed any person to bring a child before the District Court to have that child committed to an industrial school on the basis the child was found begging, was homeless, had parents who did not exercise proper care, was destitute or was associating with criminals or prostitutes. In practice the applications for such committals were most frequently made by the ISPCC, the Garda, school attendance officers, the Society of St. Vincent de Paul, parish priests etc.

If the court decided to send the child to an industrial school, an order of detention in a certified school would be made out and signed by the Judge of the District Court. A record of that fact would be made by a handwritten entry in the court minute book. There was no criminal conviction. In most cases the Garda would not even have been aware of the decision. There are no central records kept by the State of these court orders. The entry in the court minute book would be just one of many other entries, such as liquor licence applications and so on, on the page recording the business of the District Court on the day in question.

The question of a pardon or amnesty has been raised on occasion. Immediately following the publication of the Ryan report, I asked the Attorney General to examine this issue. A pardon can apply only if a person has a criminal conviction recorded against him or her. Reference to pardons may serve to reinforce the perception that these innocent children were convicted of some crime.

The question of erasure of records has also been raised. As I have explained, there are no criminal records. The non-criminal records in the court minute books are not organised in any way that the relevant entries can be easily identified. In any event, I would be extremely cautious about destroying official records for both historical and practical reasons. Destroying these records might well be viewed as vandalism by future generations and an attempt to air-brush out a shameful aspect of our history. However, there may be individuals who wish for their records to be erased and destroyed and the matter is something we are prepared to examine on an individual basis. On a more practical level, destroying such records might undermine efforts by survivors who wish to take legal actions or simply to research what happened to them.

We examined the relevant legislation currently going through the Dáil and even in the case of spent criminal convictions, the actual records are not destroyed. Instead provision is made that the person shall be treated for all purposes as a person who was not convicted and when a query is made about a person's criminal record, it is treated as if there was never a criminal record. The State has already tried to give reassurance on this point. Section 35 of the Residential Institutions Redress Act 2002 was introduced by the Minister for Education and Children and provides that for the avoidance of doubt, a person who was detained in an industrial school as a child in circumstances where no criminal offence was committed by him or her, is not to be regarded as having a criminal record.

As a footnote to the question of industrial schools, in certain cases a judge could decide to divert a child away from the criminal justice system to an industrial school. Our understanding is that this power was used sparingly but we do not have any concrete figures because no central records were kept. Under the 1908 Act, a child charged with a criminal offence could only be committed to an industrial school if he or she was under the age of 12 or if he or she was 12 to 14, it was their first offence and there were special circumstances. However if this procedure was availed of, it was on the basis that the charge was proved but that no conviction was recorded.

With regard to reformatory schools, children sent to industrial schools were not criminals and had no criminal convictions recorded against them. However, a number of children between the ages of 12 and 16 were charged with criminal offences and on conviction were sent to a reformatory school. For most boys this meant Daingean. The Ryan report makes clear that there were abuses committed there. However, I would emphasise that we are concerned here with a much smaller group of children. For example, in 1956 there were 4,925 children in industrial schools but only 172 children in reformatory schools. These children in the reformatory schools had a criminal conviction recorded against them. These criminal convictions could have continued to haunt these people until the Children Act 2001. Section 258 of that Act provides that any person convicted of an offence while a child shall be treated for all purposes in law as a person who has not been charged or found guilty of the offence provided he or she has not re-offended within a three-year period after the conviction. This does not apply to persons who are charged in the Central Criminal Court with murder or rape.

Officials of my Department gave evidence to the Ryan commission on the question of criminal records and to the best of my knowledge, the Ryan report does not make any recommendation for the introduction of any new measures to address this issue. However, the Government is conscious that individual survivors may still have concerns and as the Minister for Justice, Equality and Law Reform, I am open to considering any proposal from individual survivors or from a survivors' organisation that might provide comfort to such individuals. If an individual wishes to have confirmation that he or she does not have a criminal record, this can be provided and is provided for in the existing legislation.

The Ryan report emphasises that the lessons of the past should be learned and in particular there has to be an acknowledgement of the fact that the system failed the children, not just that children were abused as a result of occasional lapses. While practices changed significantly after the Kennedy report in the 1970s, the legal and institutional framework remained unchanged for some time. It was only with the enactment of the Children Act 2001 that the old legal framework in place since before the foundation of the State was replaced by comprehensive modern legislation. One of the fundamental principles of the Children Act 2001 is that the use of detention for a child is to be a last resort.

More recently, the Government decided in 2007 that responsibility for young offenders should rest with the Department of Justice, Equality and Law Reform. Up to then and during the period dealt with by the Ryan commission, the Department of Education had responsibility for providing residential schools for offenders under the age of 16 years. However other aspects of dealing with young offenders fell to the Department of Justice and this led to difficulties.

The Irish Youth Justice Service has been now been established as an executive office of my Department to provide one central point with overall responsibility for all aspects of youth justice. This has proved an important institutional reform and ensures that there is no confusion as to responsibility for the criminal justice aspects of dealing with young people. The service now has responsibility for running the four residential schools for young offenders. These schools have been subject to inspection by HIQA providing an independent oversight of these schools.

I refer to the motion before the House. We can never undo the damage that has been done. However, it is important that we fully acknowledge what did happen. We must accept our responsibility and do everything in our power to address the concerns of the survivors and ensure that the dreadful abuses inflicted upon them are never inflicted on a new generation of children. The motion before us makes clear what action is required. We have to implement all the recommendations of the Ryan report but we must also call upon the congregations concerned to make full and transparent disclosure of their assets and to make a further substantial contribution that can be used for the support of victims. It is important that the Oireachtas speaks with one voice on this issue and the motion before us today offers the opportunity to do so.

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