Jonathan O'Brien (Cork North Central, Sinn Fein)
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178. To ask the Minister for Justice and Equality the way in which the Council of Europe guidelines on child-friendly justice are implemented here. [20322/17]

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Council of Europe Guidelines on Child Friendly Justice cover a range of issues under the remit of the Department of Justice and Equality.

For example, there are numerous references in the guidelines to the need to have regard to the best interests of the child and to hear the child's views during proceedings. The fundamental principles outlined in the guidelines particularly in relation to determination of the best interests of the child are to a significant extent incorporated in the Children and Family Relationships Act.

The Children and Family Relationships Act 2015 contains new provisions regarding the best interests of children in family law proceedings which have been in operation since 18 January 2016. Section 3 of the Guardianship of Infants Act 1964, as amended by section 45 of the 2015 Act, provides that the best interests of the child shall be the paramount consideration for the court in proceedings where the guardianship, custody or upbringing of, or access to, a child is in question. The best interests of a child are to be determined in accordance with the new Part V of the 1964 Act, inserted by section 63 of the 2015 Act. Part V, entitled “Best Interests of the Child”, contains two important sections.

- Section 31sets out an extensive list of factors and circumstances to be taken into account by a court when determining the best interests of a child. These include the views of the child that are ascertainable (whether in accordance with section 32 or otherwise). The court can ascertain the views of the child in person or through an expert. Section 31(6) provides that in obtaining the ascertainable views of a child, the court shall facilitate the free expression by the child of those views and endeavour to ensure that any views expressed by the child are not expressed as a result of undue influence, and may make an order under section 32.

- Section 32of the Children and Family Relationships Act 2015 facilitates the hearing of the voice of the child by enabling the court to appoint an expert to determine and convey the child’s views to the court, so that the child’s voice can be heard in the proceedings. These provisions allow the courts to take account of the evolving capacity of children and also give the courts the flexibility to ensure that all children’s views can be heard.

In addition to the Children and Family Relationships Bill, the Domestic Violence Bill 2017 was published on 3 February 2017. Section 23 of the Bill provides that children will have the opportunity to make their views known to the court where an order is sought on behalf of a child or relates in part to a child. The court will also have the option of appointing an expert to assist the court to ascertain the views of the child.

In relation to Guideline 38- “Children should have access to free legal aid, under the same or more lenient conditions as adults.”

In Ireland, children cannot normally be a party to civil proceedings in their own name. They must sue by their “next friend” and defend by their “guardian ad litem”. In both cases this is a parent or other adult who consents to act in such capacity. Regulation 5(6)(a) of the Civil Legal Aid Regulations 1996 to 2016 provides that where rules of court require that a person (such as a child) sues by their next friend or defend by their guardian ad litem, then the application for civil legal aid must be made by that person on behalf of the child. Regulation 5(6)(b) requires that where a person is granted a legal aid certificate on behalf of another person, then the person applying for the certificate must sign an undertaking to pay to the Board any payment which a person granted legal aid in their own right would have to make. However, Regulation 5(6)(e) provides that the Board can waive the requirements of Regulations 5(6)(a)-(d) where it thinks it appropriate to do so.

The Legal Aid Board can and does provide services to children in their own right in circumstances where it is appropriate to do so (for example, to an unaccompanied child seeking international protection in the State). While civil legal aid in Ireland is not free, the Board would consider an application for a waiver of the contribution from a child who is being provided services in their own right.

As the Deputy may be aware, the Minister for Children and Youth Affairs is currently working on legislation to reform current Guardian ad litem arrangements. Further information regarding these reform proposals can be provided by Minister Zappone.

In relation to Guideline 39- “Lawyers representing children should be trained in and knowledgeable on children’s rights and related issues, receive ongoing and indepth training and be capable of communicating with children at their level of understanding.”

Over 80% of the work the Legal Aid Board does is in the field of family law. In that respect, Legal Aid Board solicitors are knowledgeable in the field of family law including child care law. The Board provides continuing professional development for its solicitors including an annual conference which normally is on a family or child care law issue.

In relation to Guideline 43- “Adequate representation and the right to be represented independently from the parents should be guaranteed, especially in proceedings where the parents, members of the family or caregivers are the alleged offenders.”

In respect of child care proceedings, the Legal Aid Board normally provides representation to parents who are Respondents to such proceedings. It is not normal for a child to be a party to such proceedings. However, in circumstances where this is the case they will be separately represented and in such cases representation will be paid for by the Child and Family Agency (Tusla) rather than the Board.

Insofar as the guidelines are concerned with respecting and protecting the rights of children coming into contact with the criminal justice system and its adaptation to the specific needs and treatment of children while in that system, specific legal provision for these children is made in the Children Act 2001 (as amended). The Act establishes a separate legal framework for dealing with young offenders incorporating principles relating to the exercise of criminal jurisdiction over children by the courts. These include, inter alia, the principles that children have rights and freedom before the law equal to those enjoyed by adults, in particular, a right to be heard and to participate in any proceedings of the court that can affect them; that any penalty imposed on a child for an offence should cause as little interference as possible with the child's legitimate activities and pursuits; that any penalty should take the form most likely to maintain and promote the development of the child and 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.

I am delighted to say that on 6 April 2017, I signed three legal instruments under the Prisons Act, 2015. The effect of these three Orders was to close down St. Patrick’s Institution and subsume the only remaining wing of the St. Patrick’s building – ‘B’ wing - into Mountjoy Prison, all with effect from 7 April 2017. The signing of these orders follows the making of orders by the Minister for Children and Youth Affairs, Minister Katherine Zappone, T.D., which allows for the committal of newly sentenced 17 year old children directly to Oberstown Children Detention Campus with effect from 31 March, 2017. Previously, responsibility for 16 year old boys was transferred from the Irish Prison Service to the children detention facilities at Oberstown in May 2012 and responsibility for all 17-year-old male remands was transferred in March 2015. The overall effect of these recent legal instruments by both Ministers is that (i) from 31 March, 2017 no further new committals of children could be made by the Courts to the adult prison system and (ii) that on 7 April, 2017, St. Patrick’s Institution was fully closed down, subsumed into Mountjoy Prison and no longer has a legal existence of its own.

Ending the practice of sending children to the adult prison system was a long standing Government commitment and was a key commitment in the programme for Government 2011-2016. St Patrick’s Institution has been the subject of much criticism by various bodies and persons involved in the area of human rights and children’s rights. The signing of these orders has consigned the name of St Patrick's Institution to the history books and is a significant and progressive step forward in the treatment of children in Ireland.

In addition, under the framework of the Inter-governmental Agreement on Cooperation in Criminal Justice Matters, the Youth Justice Services in Ireland and Northern Ireland meet on a regular basis to exchange information on experiences and best practice on a range of youth justice issues. Such activity is encouraged by Part V of the CoE Guidelines.

The Garda Síochána Act, 2005 (as amended) also makes provision for children to make complaints in their own right without the requirement for the consent of a parent. I am informed that in this way children can access the police complaints system independently. Thereafter GSOC’s interaction with children is governed by its Child Welfare and Protection Policy. GSOC have trained specialist interviewers who are deployed as appropriate to take statements from and conduct investigations into complaints made by children. GSOC works closely with its partner agencies i.e. Garda Síochána and TUSLA to ensure children receive a co-ordinated response with an emphasis on providing services which are in the best interests of the child. In conducting its investigations into complaints made by or on behalf of children GSOC takes cognisance of the European Directive on Victims of Crime and conducts assessments with regard to vulnerability and any specific protection needs. As part of its remit as an oversight body GSOC has also made recommendations to the Garda Síochána in relation to how juveniles are treated by the Garda Síochána.