Joanna Tuffy (Labour)

I move:

That Seanad Éireann calls on the Government to urgently implement the measures needed to effectively tackle juvenile crime and to prevent offending and re-offending by children and young people at risk of offending by ensuring appropriate measures including the following:

—the bringing into force of the remaining provisions of the Children Act 2001;

—a detailed plan with the deadline for implementation to be published immediately as to how the measures in the Children Act 2001 are to be implemented;

—proper ongoing and guaranteed funding and resources to be made available for the measures contained in the Act and in particular those aimed at preventing juvenile offending;

—increased use of community service orders and restorative justice schemes;

—proper funding and resources for the probation and welfare and social work services;

—rehabilitation of offenders legislation to be put in place; and

—long-term, ongoing and guaranteed investment in educational and work programmes specifically aimed at children and young persons at risk of involvement in juvenile crime.

I will begin with a description of a scene from a film which I am sure most people have seen. It is a very popular film called "The Shawshank Redemption". A memorable scene from that film is often shown. It features the character Red, played by Morgan Freeman, being asked if he has been rehabilitated. He gives a very memorable speech which I always find very striking. He conjures up an image of when he was young, and says he would like to go back and talk sense to himself as a young kid, when he committed a particular crime all those years ago. He cannot do so, and now he is an older man.

That scene reminds me that one is almost a different person when young, when a child and a teenager, and also that childhood and youth are a key period when a person can start on the wrong path. If only society and people could intervene at that stage, the person could be prevented from taking the wrong path. He or she might take the right path in life and not become involved in crime.

This also brings home the reality of children's rights legislation, which is very much based around the idea that children have unique rights and are uniquely vulnerable within the justice system. That is why we have set up the Children's Court in this country.

In preparing for this debate I looked at a report by Dr. Ursula Kilkelly, a senior lecturer in law in UCC. Last May she launched a study called The Children's Court: A Children's Rights Audit. Her report set out to examine whether children's rights were fully protected in the Children's Court. Dr. Kilkelly analysed the extent to which the Children's Court operates in line with international and national standards. Using international and Irish legislation, she set out the benchmarks against which the Children's Court should be matched. They include the UN Convention on the Rights of the Child, UN rules, the European Convention on Human Rights, the case law of the European Court of Human Rights with regard to Article 6 and how it should be interpreted in terms of trials involving children, the European Convention on Human Rights Act 2003 and the Children Act 2001.

Dr. Kilkelly makes the point picked up by other commentators, namely, that there are gaps in the Children Act which may need to be looked at again. She says that the Act provides important and detailed guidance to judges in the exercising of their sentencing functions as well as valuable direction regarding the environment where children are heard and how they can participate in criminal proceedings. She shows how the Act falls short of prescribing how the District Court has to be transformed into an age-appropriate environment in which young people have the right to participate in their own criminal proceedings.

I hope the Department will look at reviewing this legislation in light of Dr. Kilkelly's concerns. Mr. Geoffrey Shannon has meanwhile noted that New Zealand brought in a system which this country has tried to copy. New Zealand has found gaps in its system which we need to consider in terms of implementing our own legislation in the area.

The Children Act brings into force many of the UN and international standards with regard to how children are treated in the juvenile justice system.

The study she conducted is worthwhile and I hope the Department of Justice, Equality and Law Reform is considering how her recommendations can be implemented. Informal, flexible and private court procedures which are accessible to young people are part of the basic international principles of youth justice. Age-appropriate language should be adopted and specialised tribunals created in order to facilitate the young person's understanding of and participation in the process. Specially trained personnel should be employed and a professional code of conduct devised to regulate their work.

The study tested 50 Children's Court cases against certain benchmarks, one of which was the required attendance of a parent or guardian. It was found that parents were not present in 30% of cases, implying that the child attended court alone. Despite the fact that the vast majority of defendants were boys, there was no father figure in 60% of observed cases. Reasons given for non-attendance included illness, family issues and work commitments. However, it emerged that parents had not been notified in some cases, which, given that the law requires their attendance, is unacceptable. The study noted that the children whose parents were absent seemed especially isolated, vulnerable and distressed. It is obvious that parents should be present to provide support for the children involved.

Dr. Kilkelly noted different practices among courts in terms of permitting children to communicate with parents during proceedings. Such communications were explicitly prohibited in the Dublin Children's Court. Issues were also raised by Dr. Kilkelly with regard to bail conditions, which are important elements of the process. The lack of bail support was identified as a problem. She argued in the study that a child may not have the capacity to meet bail conditions or avoid further offences while on bail. It is important that children are supported in meeting their bail conditions. Otherwise, they are set up to fail and become trapped in a cycle of repeat offending.

Section 96 of the Children Act provides that detention is used only as a sanction of last resort. That basic principle has been identified in the UN Convention on the Rights of the Child. Dr.Kilkelly's study found that detention is increasingly being applied and that custodial sentences made up 23% of the 115 cases that involved sanctions. No clear reason was given for courts' decisions to impose custodial sentences but they seemed to be prompted by a collection of circumstances. For a number of reasons, custody is not the best option for children and it is not an appropriate tool in terms of meaningful sanctions.

Our motion calls for much more to be done to implement the sanctions already available under Part 9 of the Children Act. If we really want to intervene, sanctions such as community service must be used. Not only has the Government been lacking in terms of bringing provisions into force, but it also failed to address the issue of making resources available to the probation and welfare service so that it can provide supports when sanctions are applied.

Many other issues are addressed in Dr. Kilkelly's report, including the manner in which judges treat defendants. Children's courts do not encourage children to exercise their right to participate. For example, judges are often bad at speaking directly to children and their families in appropriate language. This failure to communicate and engage with young people marginalises them further and does not help them to realise the consequences of their actions. This is an important report and I would like to hear the Minister of State's response to its recommendations.

The provision in the Children Act to raise the age of criminal responsibility from 7 to 12 years has not been brought into force. In The Irish Times last January, a spokesperson from the Department was reported to have said that there were no plans to commence the relevant section of the Act. She also claimed that the Minister for Justice, Equality and Law Reform and the Minister of State, Deputy Brian Lenihan, discussed the matter and agreed to review the provision because they had serious doubts about it. More recently, The Irish Times reported that the Government intends to increase the age to ten rather than 12. It is ridiculous that this provision has not been implemented. Why was it put in the Act if the Government appears to be doing a U-turn on it?