Brian Lenihan Jnr (Dublin West, Fianna Fail)

I thank Senator Browne for tabling the amendment. It is not clear from the list of amendments tabled for Report Stage that the distinction is drawn but I am prepared to discuss the issue on the basis the Senator tabled in the amendment in that form. It seeks to draw a distinction for the purposes of continuity between the child aged under 12 and the child aged over 12. The Senator rightly draws attention to the fact the Oireachtas has chosen different ages in different enactments and he instanced the case of the common law where there was the principle of doli incapax. I am happy to state the concept of doli incapax was banished from our law as a result of amendments to the Criminal Act on the age criminal responsibility. There is no longer a rebuttable presumption that a child between seven and 14 years is incapable of a crime. There is now a different statutory scheme involving a control of all such prosecutions by the Director of Public Prosecutions.

As the Senator rightly said, the Children Act provides that the general age of criminal responsibility is 12 years and that is now in force. There is a very limited exception in cases of homicide and very serious sexual offences where a ten or an 11 year old is deemed capable of committing such offences. The Senator also rightly pointed out that a different age is fixed for driving purposes, that the age is fixed at 16 years for marriage proposes and that for the purposes of consent not being required to be proven against an assailant, the age is 17 years under the legislation enacted this year. There is a wide variety of circumstances and the Senator makes the case that teenage life is a rather different span of experience from childhood life in general and that five teenage years are long ones.

I appreciate the spirit in which the amendment was tabled but in foster care, the care of teenagers is often the most difficult aspect of the whole equation. The bulk of children in long-term foster care tend to be taken into care at a very young age and so the continuity and attachment are established very early on. It would be very unusual for a child aged 12 to be placed in foster care for an unbroken period of time. I am not certain the issue Senator Browne is trying to address is one that arises that often. Given that teenage years are a time of maturity, maturation and great change, some emotional stability for the teenager is probably more important than ever. There is an argument for arranging this matter the other way around rather than in the sequence in which the Senator has raised it.