James Reilly (Dublin North, Fine Gael) | Oireachtas source

Amendment No. 18 proposes to insert the words "and may be less" to the substituted subsection 149(1) as provided for in section 8. The subsection already makes provision for this and the only limit being imposed by section 149(1) is that the period of detention imposed on a child by a court shall "not be more" than the period of detention or imprisonment that could be imposed on an adult. This does not mean that a lesser period of detention cannot be imposed on a child. In addition, section 96(4) of the Act, providing for the powers of the court vis-à-vis child offenders provides that the penalty imposed on a child for an offence should be no greater than that which would be appropriate in the case of an adult who commits an offence of same kind and may be less. This Bill is not proposing to amend section 96(4) in any way. I do not consider that the words proposed are necessary as subsection (1) of section 149 already implicitly makes provision for a lesser period to be imposed on a child and I do not propose to accept the amendment.

On the issue of adding the words, "The Court shall have regard to the age, level of maturity, best interests of the child and the principle of imprisonment as a last resort in determining the nature of any penalty imposed.”, these principles are already inherent in the Children Act 2001. Part 9 of the Act provides for the powers of courts vis-à-vis child offenders. In particular, section 96 provides for the principles relating to the exercise of criminal proceedings over children. Section 96(3) provides that a court may take into consideration as mitigating factors a child's age and level of maturity in determining the nature of any penalty imposed unless the penalty is fixed by law. Section 96(5) provides that when dealing with a child charged with an offence, a court shall have due regard to the child's best interests, the interests of the victim of the offence and the protection of society. This reflects that where criminal proceedings are at issue, the best interests of the child must be balanced with the interests of the society and the victim. Section 96(2) of the principal Act provides that a period of detention should be imposed only as a measure of last resort, which many Senators have argued, and I fully agree with that position.

Amendment No. 23 proposes to insert the word "any" into the substituted section 149(2) as provided for in section 8. Section 143(1) of the principal Act provides that the court shall not make an order imposing a period of detention on a child unless it is satisfied that detention is the only suitable way of dealing with the child and that a place in a children detention school is available for him or her. Section 143(2) provides that where an order is made under subsection (1) the court making the order shall give its reasons for doing so in open court. Section 143(2) is not limited to instances where the period of detention to be imposed by the court exceeds three years; it applies in all circumstances where a period of detention is imposed on a child. It should be noted that these matters, which fall under Part 9 of the Children Act, are matters within the remit of the Minister for Justice and Equality. We continue to have close co-operation on criminal justice matters relating to children. As the amendments proposed are already clearly provided for in the Act, I do not propose to accept them.