Brian Lenihan Jnr (Dublin West, Fianna Fail)

I am being very ecumenical, given the genuinely ecumenical nature of this debate. The youth justice unit in the Department of Justice, Equality and Law Reform is consulting widely with those in the youth justice sector and has brought forward very effective proposals for the Government. One of the key proposals is the creation of a youth justice service within the Department. Senator Jim Walsh referred to the issue of who takes operational responsibility for child detention schools. The responsibility must be moved from the Department of Education and Science to the Department of Justice, Equality and Law Reform if we are to have a holistic approach to the issue. I wish to reassure Senators that this responsibility will not be moved to the Prison Service and these schools will remain child detention schools. The matter will be brought to Government in the coming weeks so I do not wish to divulge too much detail. One of the ideas I put forward in public debate and would like to see established is making child detention schools the norm for the detention of all offenders up to the age of 18 and abolishing the provision of child detention centres as separate parts of prisons which would hold juvenile offenders aged 16 and 17, as envisaged in the Children Act. I hope that we would use the Scandinavian model whereby every offender under 18 is housed in a child detention school, which would be entirely separate from any penal complex. The Children Act did not go far enough in this respect.

It is extraordinary that we passed the Children Act without putting the means that were essential for its implementation in place. It is impossible to have good legislation unless it clearly designates who is responsible for providing services for the groups it is aimed at. The Government amendment refers to the Government's decision to increase the strength of the Garda Síochána and to extend various social inclusion measures. Offending behaviour among young persons is of great concern to the Government and we have regular reports of violent crime. Senator Henry referred to recent events in France and Senator Cummins referred to problems with drug taking, drink, lawlessness and anti-social behaviour. In this jurisdiction those problems are more concentrated in the young adult group than in the under-18 group but that does not absolve us from the need to establish a robust system of juvenile justice and care for offenders.

I accept the Children Act 2001 provides a sound basis for a modern, progressive youth justice system. Much implementation has occurred and the objective is to complete it. Complete implementation was never envisaged in a year or two; a long timescale was set and I am trying to accelerate the process. The Act is in place for four years and I wish to see its provisions implemented within the lifetime of this Government. It is major legislation with 271 sections and its implementation involves three Departments and their respective agencies. This requires parallel action by these bodies on an agreed timetable and many sections are interdependent.

I referred to the statutory diversionary programme. Senator Cummins referred to restorative justice, which is included in this programme. The victim does not always want restorative justice and this has been the experience of juvenile liaison officers in implementing the Act. A number of conferences have been held where the victim was given the opportunity of confronting the juvenile offender. In legal theory this is a very attractive idea but victims do not always want to meet the offender and we must take this into account.

The family conferencing provisions, involving the probation and welfare service, have also been implemented. This is another form of restorative justice to which I have already referred. The fundamental detention provisions have not yet been implemented and these are important because in this section it is clearly stated that detention is a matter of last resort and that no person under the age of 18 can be lodged in a prison.

We must implement these provisions by bringing clarity to this area, through legal amendments. To implement a part of this kind one must have absolute clarity about the power of the courts as they must withstand severe legal challenge on occasion. The provisions we enacted in 2001 are unnecessarily complex as we envisaged a distinction between offending and non-offending children, which is valid as some require care and some protective detention.

Regarding children detained in a protective way, there are several categories including those who are sentenced, remanded, males, females, over 16 years of age, under 16 years of age as well as 16 and 17 year olds. In total this amounts to eight different types of institution for a core group of approximately 120 offenders. As a legislative scheme this is unsustainable so I must examine how sense can be made of it and how it can be implemented quickly. I am keen to do so, as Senators will appreciate.

Of the remaining parts of the Act, one of the crucial issues is family welfare conferences. Section 77 of the Act allows the judge to refer to a family welfare conference. In the course of a criminal case a judge can require the HSE to appear in court and participate in a conference on a person before conviction. The HSE can examine what services can be put in place.

New Zealand has a similar provision and is a jurisdiction of a similar size to our own. There can be up to 50,000 conferences per year, a substantial figure. The resources required would be substantial but I am confident I can secure funds to implement this on a pilot basis in particular districts. I am anxious we put a provision into the legislation that the HSE should always attend court when requested by the judge to do so. I see too many reports of the HSE's failure to attend when judges request its attendance to examine the services available to children.

The judge should be advised by the Department of Justice, Equality and Law Reform on the options available and those in care services should advise what they can provide. Some provincial venues have this working relationship between social workers, probation officers and juvenile liaison officers. Much of the Children's Act requires such an interagency approach. It is not solely a matter of resources, but of getting different agencies to work together. All of us in public life know how difficult this can be. If I can strengthen the legislation to procure interagency co-operation, I will do so.

Senator Tuffy referred to the age of criminal responsibility. The 2001 Act originally specified the age of criminal responsibility as ten years, with a graduated increase to 12. The United Nations was unhappy with this and the commission on children and the Convention on the Rights of the Child suggested we should opt for 12 years of age. I have examined this matter and am open to Senators' views.

Some practical difficulties exist and as the matter is now before Government I do not want to go into great detail. I agree with Senator Tuffy that we must implement this provision as quickly as possible. The present common law arrangement whereby a child of seven years of age can be prosecuted is unsatisfactory.