Jillian van Turnhout (Independent) | Oireachtas source

I second the amendment and support the first amendment put down by Sinn Féin in principle. However, as I said on Committee Stage - I maintain my position now - I believe the amendment is incorrectly placed. I have contacted Sinn Féin and the Bills Office seeking clarity following Committee Stage.

The Sinn Féin amendment seeks to insert a new subsection 7A after section 88(7) of the Children Act 2001, as amended by the Criminal Justice Act 2006. Section 88 deals with remand in custody and pertains in the most part to the designation of a place as a remand centre. Section 88(7), as amended, states: "A place may be designated as a remand centre only with the consent of its owners or, as the case may be, its managers."

Although subject to amendment by this Bill, section 88(8) currently reads: "Where a remand centre is part of a children detention school, children remanded in custody to the centre shall, as far as practicable and where it is in the interests of the child, be kept separate from and not be allowed to associate with children in respect of whom a period of detention has been imposed."

The Sinn Féin amendment concerns provisions regarding a period of detention imposed on a child by the court. Upon my reading of section 88, a new subsection (7A) to section 88 of the principal Act simply does not fit. Rather, I believe, the amendment should belong to section 88(8), which deals with provisions regarding period of detention imposed by court. Thus my amendment, amendment No. 2, seeks to expand upon the amendment of section 149(1) of the Children Act contained in this Bill by stipulating several criteria.

First, not only must the period of detention imposed on a child not exceed what the court could have imposed on an adult convicted of the same offence, it can be less. This stipulation is made in section 96(4) of the Children Act dealing with principles relating to the exercise of criminal jurisdiction over children, which holds: "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 the same kind and may be less, where so provided for in this Part."

Second, in determining the period of detention a decision should reflect the spirt and wording of section 96(2) in particular which reminds the court that it "should take the least restrictive form that is appropriate in the circumstances" and that "a period of detention should be imposed only as a measure of last resort".

The third criteria relates to the best interests of the child principle. Given the new children's rights article in the Constitution and our obligations to children under the UN Convention on the Rights of the Child it is vital that this principle appears and flows consistently through legislation impacting on the lives of children. I have adopted the wording for this amendment from the Irish Penal Reform Trust and I note that those involved also envisaged that the amendment would sit under section 8.

As for the rationale behind the amendment, I note the chilling observation of Dr. Andrew McLellan, chief inspector of prisons for Scotland from 2002-09. He said: "Prison may sometimes do good, but it always does harm." Ireland is bound to respect and uphold the internationally and domestically recognised principle of detention as a last resort for children. The rationale underpinning the fundamental principle and international human rights rule that children should be detained only as a measure of last resort is a three-fold recognition. First, detention is harmful to children.Professor Barry Goldson, senior lecturer at the department of sociology, social policy and criminology at the University of Liverpool, has written extensively on the corrosive impact detention has on a child's life, including straining family relations, the reinforcement of negative behavioural traits, experiences of bullying, intimidation and violence, isolation, institutionalisation and stigmatisation. Dr. Ursula Kilkelly, with whose expertise in this area we are all familiar, has also enumerated the negative impacts of detention on children, including the deprivation of liberty, separation from their usual social environment, separation from family and exposure to criminal contamination.

Second, noted in the preamble to the United Nations standard minimum rules for the administration of juvenile justice, known as the Beijing rules, is the appreciation that children, owing to their early stage of human development, are distinctly vulnerable to these negative effects. This vulnerability is further exacerbated by the fact that many of the children subject to detention are extremely damaged.

Third, detention should be used as a last resort to militate against the organised hurt inherent in placing damaged children in damaging environments and to uphold the rights and safety and promote the physical and mental well-being of children as stipulated as a fundamental perspective in the United Nations rules for the protection of juveniles deprived of their liberty, known as the Havana rules. The principle of detention as a last resort for children, the best interests of the child and the articulation of factors to which the court shall have regard in determining the nature of the penalty, if any, imposed are not just window dressing to be articulated in some places and not others. These go to the very core of our juvenile justice policy and international obligations and we are duty-bound to articulate the principles at every appropriate juncture.

I support Sinn Féin's amendment No. 3. Given the seriousness and gravity of the decision to impose any period of detention on a child, I do not believe it is too much of an imposition on the court to give its reason for doing so in writing. As Senator Cullinane has said, the Law Reform Commission recommended in 2003 that a District Court should be required to give concise written reasons for any decision to impose a custodial sentence. I further note recommendation 33 of the 2014 strategic review group report on penal policy which stated that in all cases where a custodial sentence is imposed by a court, the court should set out its reason in writing for doing so. The group further recommended that this requirement be incorporated into statutory law. The strategic review group also considered whether a requirement to document a determination in writing would constitute a significant additional burden and found it would not. I also believe the requirement for a court to give its reasons in writing might go some way towards ensuring remand is not inappropriately resorted to by the court in circumstances where the child requires a child welfare intervention. I ask the Minister to recall the point I made in this regard on Second Stage. For these reasons, I support the Sinn Féin amendment.

The amendment I tabled, amendment No. 4, could strike a balance, if required, but I hope amendment No. 3 is accepted and there will be no need for it. At the least, the Bill should stipulate that in giving its reasons for its decisions in open court, the court shall use language that is appropriate to the age and level of understanding of the child. This would mirror the language of section 88(3) of the Children Act, which holds that where the court decides to remand a child in custody, the court shall explain the reasons for its decision in open court in language that is appropriate to the child's age and level of understanding. The need to use language that is appropriate to the child's age and level of understanding throughout the juvenile justice process is also clearly set out in the 2010 guidelines for the Committee of Ministers of the Council of Europe on child friendly justice.

In summary, I suggest an amendment should ensure the period of detention imposed on a child may be less than what the court could impose on an adult convicted of the same offence. We must ensure the principles of detention as a last resort for children and the best interests of the child are articulated appropriately in this provision and that some of the factors, such as the age and level of maturity that the court shall consider when determining the nature of the penalty, if any, are clearly stated. As suggested in amendment No. 4, it is important to mirror the language that is already used in section 88(3) of the Children Act.