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

Amendment No. 1 proposes to insert the words "and may be less" and states: "The Court shall have regard to the age, level of maturity, best interests of the child and principle of imprisonment as a last resort in determining the nature of any penalty imposed." This is proposed as a new subsection (7A) in section 88. I note however that section 88 deals with remands in custody as distinct from detention following conviction. Amendment No. 2 proposes to insert the words "and may be less" and a statement, "The court shall have regard to the age, level of maturity, best interests of the child and the principle of detention as a last resort in determining the nature of any penalty imposed", into section 149(1).

In regard to the insertion of the words "and may be less", it is provided in section 149(1) 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. It is inherent in the provision that the period of detention imposed on a child may be less than that which is imposed on a person of full age and capacity.

In addition, as I stated on Committee Stage, section 96(4) of the Act, providing for the powers of the court in regard to 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 the same kind, and may be less. Therefore, section 96(4) already includes the words "and may be less". A penalty may include any one of a number of sanctions, ranging from community sanctions to detention as a measure of last resort.

I do not consider that inserting the words "and may be less" is necessary, as section 149(1) already implicitly provides for a lesser period to be imposed on a child. In addition, section 96(4) is explicit on this point, clearly providing that the penalty imposed by a court on a child, which may include detention as a measure of last resort, may be less than that which would be imposed on an adult.

In regard to adding the words "The Court shall have regard to the age, level of maturity, best interests of the child and the principle of detention as a last resort in determining the nature of any penalty imposed", the principles proposed in the amendment are already explicitly provided for in the Children Act 2001. Part 9 of the Act provides for the powers of the courts in regard to 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 also 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 an issue, the best interests of the child must be balanced with the interests of society and the victim. This is critical.

Section 96(2) of the principal Act provides that a period of detention should be imposed only as a measure of last resort. As the amendments proposed relating to a lesser period of detention being imposed on a child and a court having regard to the age, maturity and best interests of the child and the principle of detention as a last resort are already clearly provided for in the Act in section 96, which sets out the principles to be applied by a court when exercising criminal jurisdiction over children, I am not accepting amendments Nos. 1 and 2.Amendment No. 3 proposes to provide in a new subsection (2) at section 149 that the court shall not impose a period of detention in excess of three years and where it imposes any period of detention that it shall give its reasons in writing. Detention, as already said, is always a measure of last resort and that is set out clearly in section 96(2). Section 143 of the principal Act also makes it clear that a court should not make an order imposing a period of detention unless it is satisfied that detention is the only suitable way of dealing with the child. Section 96(4) makes it clear that the penalty imposed on a child 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 a lesser period. The Act provides various safeguards in terms of detention always being a measure of last resort and the duration of any period of detention to be imposed vis-à-visan adult, where detention is the penalty imposed on a child. The imposition of a limit on the period of detention of a maximum of three years in all circumstances regardless of the offence that has been committed would not be appropriate. We can all think of serious crimes that could be committed by a 17 and a half year old. The idea that three years would be the maximum sentence would not sit well.

On the proposed amendment to provide that where any period of detention is imposed on a child, the court shall give its reasons for doing so in writing, 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. This provides safeguards in terms of the reasons being stated in an open court in the cases of all children appearing before a court. It should be noted that these matters fall under Part 9 of the Children Act and 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. There are already sufficient safeguards in terms of the duration of any period of detention and a statement in all cases in open court of the reasons for any period of detention being imposed. I am, therefore, not accepting the amendments proposed.

Amendment No. 4 proposes to insert the words "in language that is appropriate to the age and level of understanding of the child" into the substituted section 149(2) as provided for in section 8. 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. As I said on Committee Stage, we have close co-operation on criminal justice matters relating to children. I have consulted, as I said I would do, with the Minister for Justice and Equality on the proposed amendment to provide that where a court imposes a period of detention in excess of three years on a child, it shall give its reasons for doing so in open court in language that is appropriate to the age and level of understanding of the child. It is important that where a lengthy period of detention is imposed on a child, the child understands fully the reasons for it. Having consulted with the my colleague, the Minister for Justice and Equality, I am therefore accepting the amendment proposed. I note that a similar issue arises in regard to section 143(2) of the Children Act 2001 and I intend to bring forward an amendment at a later Stage in this regard.