Barry Andrews (Dún Laoghaire, Fianna Fail)

I have listened carefully to the points made. As Deputies have mentioned, they were raised on Committee Stage and in the Seanad. As Deputy Jan O'Sullivan remarked, I had some sympathy for that point of view and explored the possibility of making the amendments suggested by her colleague, Senator Alex White. However, our legal advice is that the word "detention" is appropriate give the circumstances of the Bill.

While Deputy Ó Caoláin remarked that it is called the Child Care (Amendment) Bill, this refers to the Child Care Act, which covers everything including special care, the matter under discussion today. Special care is a unique form of care whereby a child is detained for his or her safety and security under a special care order. It is a unique form of care for very vulnerable children. Our advice is the use of any other word would likely mislead or make the position uncertain for courts, the HSE, parents and guardians.

Currently, the High Court orders which provide for special care are called "detention orders". Successive court judgments have used the term "detention". Judgments have been clear in their distinction between detention in a special care facility and detention under criminal statutes. In terms of special care and judicial review proceedings, the use of the term has not connoted any criminality on the part of children.

When I visited Ballydowd special care unit last September I spoke with some of the children there. They pointed out to me that they were aware they had not done anything wrong. For all their serious shortcomings, HIQA inquiries into special care ensure children are aware of their status and their right to have their views advocated while they are in special care. I understand the concern Deputies have expressed and why the term might carry some stigma. However, there is a requirement for legal certainty and to distinguish between ordinary child care and special care. Children in special care appear to be well aware of their status and the fact that they have not done anything wrong. This is why we argued against the idea of rehabilitation, because there is nothing to rehabilitate if they have not done anything wrong. Rehabilitation is part of the criminal justice system and sentencing would be associated with criminal statutes.

Regarding the proposed amendment of section 23A, it will be noted section 3 of the Children Act 2001 defines a "children detention order" as having the meaning assigned to it by section 142 of the Act. This provides that an order may be imposed on a child for a period of detention in a children's detention school. The amendment seeks a change to the definition of a "children detention order" and the advice is it would cause some confusion.

It is for these reasons that I am not accepting these amendments.

See this speech in context