Brian Lenihan Jnr (Dublin West, Fianna Fail)

I thank the Seanad for selecting this important topic for discussion relating to the protection and development of children.

I will begin by outlining the context established by the Children Act 2001. That legislation significantly modernises the juvenile justice and welfare systems in Ireland. The Act was developed in response to the recognition that the juvenile justice system had outgrown the statutory confines of the Children Act 1908 and that further development would require to be underpinned by new legislation. The provisions of the Children Act 1908 for children in care were repealed by the Child Care Act 1991. The primary purpose of the Children Act 2001 was to replace the remaining provisions of the 1908 Act and associated legislation with a modem comprehensive statute covering three main areas of the law, including the administration of the juvenile justice system and additional provisions regarding special care and protection to augment the provisions of the Child Care Act 1991.

The Children Act 2001 was enacted by the Oireachtas in June 2001 and constitutes a fundamental revision of existing legislation governing the treatment of children in conflict with the law and non-offending children in need of special care or protection. The considerations behind the Act were that prevention, through early intervention, is desirable and in the medium to long term likely to produce positive results; where a child is apprehended for committing an offence, diversion should, where possible and where the interests of society would not be adversely affected, be the preferred option; where it is necessary to bring a child before the courts on a criminal charge, a wide range of community sanctions should be available to the court; and detention should be a last resort, but where it is unavoidable it should be in institutions where the ethos is educational rather than penal.

The Act provides the framework for the development of the juvenile justice system. It reflects the thinking that young offenders, by reason of their age and level of maturity, deserve to be dealt with in a different manner from adult offenders. The philosophy underpinning the juvenile justice aspects of the Act is that there should be a suitable intervention for every child who commits an offence, no matter what the offence or the circumstances of the child who commits it. The provisions of the 1908 Act protecting children against abuse by persons responsible for their custody, charge or care are being re-enacted and updated and the legislation provides for a family welfare conference and other provisions for dealing with non-offending children in need of special care or protection.

The legislation draws and is underpinned by the fundamental distinction between child offenders and out of control children. Senators will agree that the distinction is often hard to draw in practice when faced with a troubled child. Nevertheless, the legislation draws this distinction.

The Act represents a major change in how children are to be treated within the juvenile justice and welfare systems. There is a significant shift away from residential and custodial care. The expansion of diversionary programmes and the option of a community sanction are being developed in preference to detention where this is judged appropriate.

A key aim of the Act is to retain the distinction between offending children and non-offending children, defined as non-offending out of control children and children whose actions constitute an offence. There are two distinct pathways for addressing their needs. The juvenile justice route emphasises a diversionary and restorative justice approach for the children who offend while the health board welfare route emphasises a care and protection approach.

Reference has been made to restorative justice. We are already aware of diversion from the work of the juvenile liaison scheme. One of the important innovations in the legislation is the idea of restorative justice. In other words, the offender should be confronted in an appropriate context by the victim and helped to realise the consequences of his or her actions. I am glad to say that juvenile liaison officers have been implementing the restorative justice model in their case conferences with juvenile offenders and that they report good progress on this model. It has been piloted by various juvenile diversion officers. There is considerable scope for development along those lines as it is an effective way of reminding not only children, but also parents, of their responsibilities.

We must acknowledge that there will always be some cases where a period of detention for a young person will be appropriate and necessary. The Act modernises the approach to the organisation and management of detention facilities for offenders under the age of 18.

This is complex legislation. It involves three Departments in its implementation, namely, the Departments of Justice, Equality and Law Reform, Health and Children and Education and Science. I have delegated responsibility in all three Departments for the legislation. However, this does not always make the task easier. As Senators are well aware, in our system Departments tend to constitute institutional silos with distinct memory banks of their own. That said, the cross-cutting and interdependent nature of the Act reflects the well-acknowledged need to begin to join up the thinking and the operation of services which relate to children across a range of offices. I am assisted by the National Children's Office in the implementation of the legislation. Despite its complexity, considerable progress has been made towards implementation.

In introducing and explaining the legislation to the Houses in 2001, the then Minister for Justice, Equality and Law Reform made it clear that it would take a number of years to implement the legislation. It was never represented that it would be enacted forthwith. I welcome the fact that the Seanad is having this debate because significant progress has been made in implementing the Act.

In the Children Act 2001 there are three Parts that specifically relate to the health area, Parts 2, 3 and 11. Almost all of Part 2, with the exception of sections 7(1)(a), 10(2) and 13(2), and all of Part 3, with the exception of 23D, were commenced on 23 September 2004. The regulations for family welfare conferences and special care units were commenced on the following day, 24 September 2004. The necessary inspection and certification process is currently under way and should be completed in the near future. The certification process is the one in which the social services inspectorate must vet and certify the various special care units to be deemed fit for the detention of children under the legislation.

Part 2 of the Act provides for family welfare conferencing to be convened by the health boards. This is the first of three conferencing provisions provided for under the legislation. It will provide a forum for making decisions about a child's welfare which makes appropriate plans in partnership with families and agencies. The partnership approach empowers and encourages commitment from families, including young people. This is a mechanism for early intervention at an interagency level for children at risk. The function of the conference is to decide whether a child is in need of special care and protection and, if so, to recommend the appropriate order to be sought by the health board from the court. From the juvenile justice perspective, the welfare conference is a preventative measure that should result in fewer children ending up in the juvenile justice system and is, therefore, of great interest and relevance. If the health boards can identify a problem child before he or she has to be apprehended and brought before the courts and if an appropriate response is devised for him or her, that could be a significant advance.

Part 3 provides for the making of special care orders and the regulation of special care units. Senators will recall the numerous High Court proceedings in which Mr. Justice Kelly gave a number of judgments that made clear the Department of Health and Children and the Government had a constitutional obligation to provide secure placements for children who were out of control. On foot of these judgments, the State made a substantial investment in such facilities. However, while various special care and high support units have been in operation, no legal scaffolding has been established for them.

Generally, a list was taken by a High Court judge exercising the inherent jurisdiction of the High Court to determine how these children would be cared for but I commenced Part 3 of the 1991 Act, which provides for the making of special care orders, in September. This will provide the legal basis for the keeping of a child in a special care unit. A special care order provides for the referral of a non-offending child in need of special care to a secure special care unit. Such an order cannot be made unless a family welfare conference has been held by the health board in respect of the child. The special care order is a measure of last resort when every other available and appropriate care or protection intervention has been availed of and failed. Special care units cater for the main category of child, which, in the past, has fallen between existing safety nets — the out of control or difficult non-offending child. The Act imposes a statutory duty on health boards to institute proceedings in the District Court for a special care order in respect of a child who is in need of care and protection.

There is, therefore, no requirement to take the expensive route of High Court proceedings in regard to these children. The District Court will have statutory jurisdiction to deal with these matters. It is desirable and correct that under these regulations the health board should take the initiative. They are under an obligation to do so as it should not be based on the unilateral presentation by the legal profession of a particular case. A proper assessment is made of the case and, on foot of that, the case will be brought before the District Court. The detention of a child must always be the ultimate resort. The notion that the problems of children can be solved by locking them up must be avoided. I accept the High Court placed an obligation on us to provide these facilities and to give them the necessary, essential legal foundation, which was done through the commencement of this Part of the Act and its associated detailed regulations — I commend the legal service of the Department for its work on them — but this always must be the ultimate option, to which we should be slow to resort. Part 3 also provides for the regulation of private fostering arrangements.

Part 11 of the Act is important, as it relates to all aspects of the legislation, and it places the Special Residential Services Board on a statutory footing. Through the decades, there was considerable confusion within the courts, the legal profession and among social workers about the different residential institutions that existed for children and where children's residential requirements could be met. The board has an important role in advising the co-ordination of special residential services run by the health boards for non-offending children and the Department of Education and Science for offending children.

The board examines the detention schools where offending children can be placed and it also examines the special care and high support units provided by the Department of Health and Children. The board also has a role in determining whether it is appropriate for a health board to apply for a special care order under the legislation. The executive of the Special Residential Services Board has ten staff including the chief executive officer and four court officers. Two additional court officers are due to be appointed before the end of the year, pending Garda clearance. The expertise of the Special Residential Services Board, its chief executive and staff adds an important extra dimension in achieving co-ordinated and appropriate responses in this area. The order commencing this Part of the Act, which placed the board on a statutory footing, came into effect on 7 November 2003.

I will outline an example of how the board makes a practical difference. Everybody is aware of the urban legend that has been reported in our newspapers through the years where the court would say there was no place for the child at a particular institution. The practice was that gardaí, court clerks or a person interested in the case telephoned the institution in question and asked whether a place was available. If there was a negative response, the question was not pursued and the newspapers reported no place was available. The Special Residential Services Board has established a service under which its officers are on call 24 hours a day to co-ordinate the delivery of these places. That will assist us in addressing an issue raised by the Comptroller and Auditor General in his report on the detention centres, which is the maximum utilisation of spaces. Since last spring the board has done this practical and important work and, in doing so, a much better picture is emerging of the location of places, the requirements of various areas and how the places should be utilised.

The board also does important theoretical work. The membership of the board is defined by statute and, therefore, there are no political appointees. It comprises a significant number of persons who are involved in the sector and who give their wisdom and experience to it. The board has published a number of papers on different issues relating to its functions.

The Children Act 2001 is primarily juvenile justice legislation and introduces a wide range of innovative measures that will provide a statutory framework for the future development of the juvenile justice system in accordance with modern thinking and best international practice. The foundation of juvenile justice has always been the juvenile liaison scheme. That was put on a statutory basis under Part 4 of this legislation, which came fully into operation on 1 May 2002. It places the existing successful Garda diversion programme or juvenile liaison officer scheme on a statutory basis. This provides for the introduction of the second type of conference envisaged under the Act, which is based on restorative justice principles pioneered in New Zealand. The child offender is confronted by the victim at a conference presided over by the juvenile liaison officer. There is considerable scope for development in this area. The conference has been piloted in the diversion programme but it could be extended with profit.

Part 6 deals with the treatment of child suspects in Garda stations and it came fully into operation on 1 May 2002, with the exception of sections 59 and 61(1)(b). This Part places the treatment of persons in custody regulations, in so far as they govern the treatment of children in Garda stations, on a full statutory basis.

Part 7 relates to the children's court. It came fully into operation on 1 May 2002 and established the children's court, which is the District Court, when hearing charges against children or when exercising jurisdiction under the Child Care Act 1991. Before transacting business in the children's court, District Court judges are required to participate in whatever training or education course is required by the President of the District Court. I was asked to give a lecture to the judges by the Courts Service. I do not know whether it amounted to training and education but we had an interesting exchange of views.

I also raised with the Courts Commission the question of the condition of the children's court in Smithfield because the commencement of Part 7 means the legislation applies to everyone up to the age of 18. Previously, male offenders over the age of 16 and female offenders over the age of 17 were dealt with in the ordinary courts and not in a specialised children's court. One of the consequences of the commencement of this Part is that children aged 17 can mingle with those aged 13 or 14 in cells. The Courts Commission has worked on that problem.

Part 8 sets out proceedings in the children's court and contains two significant initiatives. The court may adjourn a case and direct the probation and welfare service to convene a family conference, which is the third type of conference provided for under the legislation. The service may formulate an action plan for the child on foot of the conference. The provision was commenced earlier this summer. From a health perspective, the family welfare conference deals with a child who shows very serious symptoms and requires special care and protection but has not come to the attention of the criminal courts. The diversion conference deals with a child at the early stages of offending and is convened by the Garda through the diversion programme. The probation conference, to christen it as such, deals with a person who has come before the courts and the commencement of the provisions in this regard have been particularly significant.

On my appointment as Minister of State, I was faced with the overall embargo on public service numbers but I am glad to say I was able to find the personnel necessary to staff the Special Residential Services Board within the overall allocation to the Department of Health and Children. I was equally assisted in the Department of Justice, Equality and Law Reform in locating in excess of 30 probation personnel to staff the children's court. It is an extraordinary fact that until this year there were no ring-fenced probation personnel to service the District Court in exercising its criminal jurisdiction on children, although this statement is not meant to detract from the professionalism and dedication of the staff who performed the role previously. The necessary sanctions were obtained last year with considerable difficulty in terms of recruitment, on top of which training had to take place. I am glad we have the personnel to provide the elementary probation service at the District Court.

While it is only a start, at least the service is there and conferencing can take place. With the analysis which takes place at conferences, we will be in a much better position to develop community sanctions, which constitute the next key part of the legislation requiring implementation. Community sanctions will give the courts options short of detention in respect of an offender with a serious record whether it is to choose a mentor or intensive supervision order. There are a number of types of order referred to in the legislation. We will be in a much better position to roll out that part of the Act with a probation service on site at the courts to discuss the problems of offenders at case conferences where a view can be developed as to where to go short of detention.

Part 9 sets out the powers of the courts on child offenders and provisions are made on bail. A number of provisions came into force on 1 May 2002 on structures on fines and costs. There has been some public discussion of parental orders and restriction of movement orders. Parental orders were envisaged by section 113 of the Act and give courts the power to order a parent or guardian of a child found guilty of committing an offence to pay compensation where the court is satisfied that a wilful failure of the parent or guardian to take care of or control the child contributed to the criminal behaviour. Section 114 gives the courts power to order a parent or guardian of a child to enter recognisance. While it is very popular to point to the existence of these provisions and the important powers of the courts, a difficulty is that an offender who has committed a great number of offences before coming to the attention of the courts is not a person whose parents are very involved. Parents may not be easily accountable to the justice system. Sections 133 to 136, inclusive, provide for restriction of movement orders or curfew orders. Such orders have been made in some cases.

Part 12, to which I referred earlier, relates to the protection of children and updates a number of provisions in the 1908 Act aimed at protecting children against abuse by persons who have care, charge or control of them. The definition of "cruelty" has been extended and those of "health" and "wellbeing" expanded to include emotional health and wellbeing. These provisions have been commenced. Part 13 outlines miscellaneous provisions, through all of which I will not bring the House.

Those parts of the Act which have not yet been commenced will occupy the time of the Senators to a greater extent than the foregoing this afternoon. With this year's work, more than half of the legislative provisions have been commenced. We must maintain the momentum of progress over the next two to three years to ensure the entire Act is commenced. The remaining sections of Part 2 which relate to family welfare conferences are linked to section 77 of the Act. Section 77 is very important and provides for the courts to order a family welfare conference. Children who appear before the courts on suspicion of committing offences and whose real problem may be a need for care or protection by a health board may have a family welfare conference ordered for them. On commencement, section 77 will enable the courts to refer a suspect offender back to the health board. I commend the positive work of Carl O'Brien of The Irish Times in this area. Among the problems which have existed has been that the courts have not been able to make health boards party to proceedings. If section 77 were commenced it would be possible to do so, although there are financial implications. While we have further work to quantify what the financial exposure of the health boards will be in this context, I am confident we can make progress.

Section 23D of Part 3 empowers the Garda to deliver a child to a health board where he or she is considered to require special care or protection. The section is somewhat problematic as such a child will have been arrested by the Garda and taken to a Garda station. Clearly, the commencement of the provision will require the establishment of an out-of-hours service by the health board and the drawing up of clear interagency protocols to ensure, for example, that the Garda would not refer all such children to the health authorities.

Part 5 of the Act addresses the age of criminal responsibility and is not yet in operation. This part of the Act raises the current age of criminal responsibility from the common law age of seven to 12 years. It makes provision for the transfer of responsibility from the Garda to a health board for children under the age of criminal responsibility who are in conflict with the law and in need of special care or protection. It is indisputable that the current common law age of seven is far too low and proceedings are rarely, if ever, taken in respect of children of that age. The Oireachtas decided on the age of 12 and in so doing transferred responsibility from the Garda to the health boards. The commencement of Part 5 will necessitate the establishment of a substantial service to deal with children under the age of 12 whose conduct amounts to criminal behaviour but who will no longer be criminals. There are plans to address this issue.

I preferred the approach taken in the legislation as originally drafted whereby criminal responsibility would have been introduced at the age of ten and phased up to the age of 12. Such a provision would have made our task in this area a great deal easier. A practical problem which has been drawn to my attention as Minister of State involves the excellent diversion programmes run by the Garda which fund valuable projects in certain areas where they are seen to be of benefit. As the legislation envisages that no one under 12 will commit an offence, the Garda will have no vires to conduct diversion projects in communities which require them to cater to 11 year olds. While I do not like to suggest the Oireachtas was ill-considered in its selection of an age and I acknowledge a legislative determination has been made, this aspect of the Act will give rise to difficulty. Maturation is taking place at ever younger ages and very serious offences such as homicide and rape are now being committed by persons under the age of 12. It will not be easy for any Minister for Justice, Equality and Law Reform to commence this particular provision given some of the conferences it entails.

Part 6 addresses the treatment of child suspects in Garda stations and I have referred to the attendance at stations of health board staff. The above provisions have major implications for the health boards, both in terms of a general build up of family support services and the provision of out-of-hours service. These will be required before the remaining sections can be commenced. The health boards are considering the matter and the necessary preparations are being made to commence the sections.

I mentioned that Part 8 had been commenced in terms of probation conferencing. However, we have yet to commence Part 9 which relates to the powers of the courts regarding child offenders. The main element of this Part is a provision for ten community sanctions, eight of which are new. These are an essential component of the Act if effect is to be given to the policy of detention being an absolute last resort. The intention is that where a judge decides in a particular case that the imposition of a community sanction is appropriate, a sanction suited to the needs and misdeeds of the child will be available. Again, this will require significant input from the probation and welfare service. I mentioned earlier that 30 additional staff have already been recruited to implement the provisions of the Act relevant to the service.

Priority is now being given to the phasing in of community sanctions. Proposals to begin pilot community sanctions in 2005 are currently being considered and finalised. Obviously, that decision will rest to some extent on the Estimates process. I am glad we can at least begin to pilot community sanctions next year. The courts always had jurisdiction under a general probation order to decide that a child should do something else rather than be sent to a place of detention. I take the view that the provisions relating to community sanctions are somewhat over-elaborate as they spell out in very precise detail each community sanction.

The Act provides for day centres and training and activity programmes whereby the probation service would link up with FÁS in providing appropriate training courses. It also provides for intensive supervision, a controversial issue in other jurisdictions; for residential supervision; and for care and supervision by way of a foster-type arrangement for juvenile offenders. Locating people willing to foster may be somewhat problematic. However, the legislation makes provision for such an arrangement. The Act also provides for a mentor order, something on which I am very keen. We have piloted mentoring, on the health side, in locations such as Galway and Darndale in Dublin and have found that the effect of the mentor programmes implemented by the Western Health Board and the Northern Area Health Board have been to reduce the demand for secure residential places.

The mentoring idea is that a person, not necessarily a social worker, liaises with the troubled child and tries to guide him or her on a one-to-one basis for eight or ten hours a week towards obtaining a job or participating in leisure activities or educational improvement. The cost of a mentoring arrangement is far less than the cost of residential care. Members will have noted from the Comptroller and Auditor General's report on child detention centres that there is enormous cost involved in providing residential care. One of the reasons for such high costs is that child protection requirements are so strict that a large number of personnel are required to be on duty in these institutions at all times. That is understandable but the costs involved are substantial, far in excess of the cost per detainee of conventional imprisonment in the adult world. That in some ways is very much as it should be. We need to provide full educational facilities for such children. It is impossible to reconstruct in an institutional setting the supports that a good family can give a child. That said, I salute the work done by care staff in these institutions. Such people often work under very difficult conditions.

We are piloting community sanctions in the year ahead. With the placing of conferencing on a statutory basis we are now in a position to start piloting community sanctions. I mentioned in that regard the importance which I attach to mentoring.

Part 10 deals with children detention schools. Responsibility for Part 10 lies with the Department of Education and Science. It provides for the establishment of children detention schools to replace the existing reformatory and industrial schools. This Part has not been commenced, apart from section 159(1) relating to the establishment of the residential services board. While work on the commencement of the educational provisions of the Act is ongoing within the Department of Education and Science and while there is no difficulty in commencing Part 10 in practice, there is a difficulty in commencing it until separate detention facilities are provided for 16 and 17 year olds.

Under an interdepartmental agreement, which underpins the legislation, it was decided that out of control children should be the responsibility of the Department of Health and Children, and rightly so, but that responsibility for the offending children would be divided between the Departments of Education and Science and Justice, Equality and Law Reform with the Department of Education and Science taking responsibility for children up to 16 years of age and the Department of Justice, Equality and Law Reform constructing separate dedicated facilities for 16 and 17 year olds. This is a cumbersome legislative structure. While the total number of children involved would rarely exceed 250 we envisage, under the legislation, eight different types of child detention centre. There will be a child detention school for under 16 year old male, female, remand and committal offenders. A similar structure will also be required for 17 and 18 year olds. There is a limited number of 16 and 17 year old females in the remand or committal structure. The number of female offenders in the under 16 years old category has reduced. The establishment of the health facilities has reduced the demand for female places in the conventional child detention centre context.

The Department of Justice, Equality and Law Reform is reviewing all these issues. However, there is no doubt that the education provisions could be commenced were it not for the fact that that Department has not yet established the detention centres for those aged 16 and 17. The economics of a detention centre for 16 or 17 year old females is questionable. However, 16 and 17 year old males currently attend St. Patrick's Institution or are committed to a detention centre on Spike Island. All of these matters are important. The Department of Education and Science is determined, pending completion by the Department of Justice, Equality and Law Reform of its facilities, to conform to the spirit of the legislation that boards will be established shadowing the terms of the legislation. I am also glad to announce an issue highlighted by the Comptroller and Auditor General in his report on the detention centres as regards the inspection of these institutions has been resolved. The Department has recommenced inspections of all institutions.

The issue of offending and non-offending children in need of special care or protection has been the subject of much controversy over the past number of years, with high profile cases usually concerning the issue of the provision of a placement coming before the children's court and the High Court on a frequent basis. Serious concerns have been raised in the courts and in media circles about the State's ability to provide appropriate accommodation for these children.

There have been accusations of lack of co-ordination between the three Departments with responsibility for these children, of children falling through the net and of disputes in court concerning which State agency should be responsible for individual children. There have also been criticisms of lack of places for both offending and non-offending children. Offending behaviour among young people is an aspect of criminal activity which remains of particular concern to the Government. Regular newspaper reports of violent crime and public order offences involving young people are, sadly, something with which we are all too familiar.

In implementing the Act to date, what has emerged is the importance of a co-ordinated approach. This is being facilitated on my behalf by the National Children's Office. Implementation of the Act is actively monitored by the Cabinet committee on children and I will be reporting to it again shortly with a detailed plan for the implementation of the outstanding provisions. It is also true to say that while we have established a sound statutory framework for a modern youth justice system, some fresh thinking is required with regard to the institutional framework in which it is to be delivered. To this end my colleague, the Minister for Justice, Equality and Law Reform, Deputy McDowell, and I have taken the initiative of establishing an internal task force in the Department of Justice, Equality and Law Reform to examine specifically, at a national and international level, how the State might better manage and target the delivery of its services in the area of youth justice. It is intended that the task force will report to the Minister so that he may bring recommendations to Government next summer. I should point out that the task force is being handled at the highest level in official circles in the Department of Justice, Equality and Law Reform. I attach a great deal of importance to its work. It will take a detached view of our juvenile justice system and of how we can implement as quickly as possible the outstanding provisions of the Children Act.

To briefly sum up, Senators must agree that much progress has been made in implementing the Act's provisions. Most significantly, the three conferences provided for under the Act are in operation. These provisions seek to plan the best course of action for a child underpinned by a partnership approach, and all seek to ensure that detention is a measure of last resort. The three conferences will support prevention, through early intervention and in the medium to long term will produce positive results and ensure care is provided to each child appropriate to his or her individual needs. This means that all the restorative justice elements, the most original and innovative elements of the Act, are fully operational.

In the meantime I am continuing to endeavour to remove all of the remaining obstacles to implementation and my cross-departmental responsibilities and the cross-cutting role of the National Children's Office is central to the effectiveness of these efforts. Senators will have to agree that progress has been made in implementing the legislation. The three conferences provided for under the legislation are in operation. Those provisions seek to plan the best course of action for a child, underpinned by a partnership approach, all of which seek to ensure that detention is a measure of last resort. The three conferences will support prevention through early intervention and in the medium to long term, will produce positive results and ensure that care appropriate to individual needs is provided to each child. In the meantime, I will endeavour to remove the remaining obstacles to implementation. My cross-departmental responsibilities and the cross-cutting role of the National Children's Office can assist those efforts.