Juvenile Justice, Child Care and the Children Act, 2001
Raymond Doole and Maria Corbett
The juvenile justice system in Ireland is governed by legislation (the Children Act, 1908) that pre-dates the creation of the present Irish State. New legislation (the Children Act, 2001) has been enacted but the ongoing delay in bringing most of its provisions into force has resulted in the continued use of the outdated 1908 Act. Full introduction of the 2001 legislation is not expected until the end of 2006.
Underlying the Children Act, 2001 is the principle that detention should only be used as a last resort. In this respect the Act upholds the UN Convention on the Rights of the Child which provides that detention of those under the age of 18 “shall be used only as a measure of last resort and for the shortest appropriate period of time.” The Act emphasises community-based non-custodial measures as alternative approaches for dealing with young offenders, including restorative justice, cautioning, family group conferences and the strengthening of the Garda Juvenile Diversion Scheme.
Public investments in community and statutory services offering prevention, early intervention and diversion must be made if the Act is to be fully and successfully implemented. Its effective functioning will also require the full staffing of the social work and child care services which are currently experiencing severe shortages of workers.
Priority given to Detention Facilities over Preventive Measures
Despite the Act’s overall focus on prevention and alternatives to detention, most of the commencement orders to date have brought into force the punitive and non-resource intensive sections of the Act (Commencement Order, May 1st 2002). Similarly, the slow rate of investment in prevention, early intervention and diversion services contrasts with an increase in the provision of detention places over the past five years, suggesting an emphasis on incarceration over rehabilitation.
Recent Government decisions reflect this worrying trend within juvenile justice policy. The Government chose to close Shanganagh Castle, a progressive facility operating in line with modern concepts of best practice and chose to open a prison for children, possible only under 1908 legislation, ignoring the recently passed but not yet introduced section within the Children Act 2001. These decisions also highlight the lack of a coherent strategy for the provision of places and services within the juvenile justice system.
Closure of Shanganagh Castle
The closure in late 2002 of Shanganagh Castle constitutes a major step backwards for justice policy and practice in Ireland and runs contrary to the philosophy of the Children Act. Shanganagh Castle, the only open prison in Ireland, provided rehabilitation and education to young offenders between the ages of 16 and 21 years. With nearly one in five prisoners below the age of 21 years, the closure of Shanganagh with no plan for a replacement is a regressive step, leaving a gap in the options available for young offenders. It is widely anticipated that Shanganagh Castle will be sold.
The closure of Shanganagh Castle prompted a number of interested organisations and individuals to come together to form a new group, the Irish Juvenile Justice Alliance. The group comprises organisations such the Irish Penal Reform Trust, the Irish Council for Civil Liberties, the Children’s Rights Alliance, along with professional workers in the system, academics, human rights activists and concerned individuals. The Alliance will work towards reforming the juvenile justice system and addressing particular human rights violations within the system.
New Facility at St. Patrick’s Institution
In April 2002, following the death of two Gardai in connection with a juvenile-related auto theft and joyriding offence, Minister for Justice John O\'Donoghue announced plans to open a “temporary” children’s prison wing for 14 and 15-year-olds. The prison was to be housed within St. Patrick’s Institution, a prison for juveniles aged 16 to 21 years.
Three floors of St. Patrick’s Institution were re-designated as a detention centre for offenders aged between 14 and 15 years and renovations were undertaken at a reported cost of €9 million. The Government faced opposition to this development and has now abandoned its plans to detain 14 and 15 year olds at the facility.
Whilst welcoming the Government’s decision, it is important to note that the facility at St. Patrick’s for 14 and 15 year olds was built in contradiction to the letter and spirit of the UN Convention on the Rights of the Child, the National Children’s Strategy and the Children Act 2001, and a year after the fatal crash on the Stillorgan road the €9 million facility lies empty, its future use unknown.
One possible use of the facility may be to accommodate 16 and 17 year olds, thereby bringing practice into line with the UN Convention on the Rights of the Child, which stipulates that children in detention must be separated from adults. Whilst this would be a welcome development in the short term it is not a long term solution as the St Patrick’s / Mountjoy complex remains an unsuitable environment for children. If the facility is to be used to accommodate 16 and 17 year olds, a therapeutic and educational model should be adopted, similar to that operating in the Children Detention Schools, as opposed to the regime in St. Patrick’s Institution which is not dissimilar from that of an adult prison.
The Detention of Non-Offenders
Primarily due to the failure to provide appropriate services and facilities to children with severe behavioural problems, Ireland’s child care and juvenile justice systems are now thoroughly intertwined. The lack of treatment and secure accommodation for young people with serious emotional and behavioural problems has led to the use of the High Court as a means of accessing placements for non-offending youths within the juvenile justice system. The use of the courts in this manner began in 1995 when a court ruling in the FN case placed the onus on the State to provide facilities for such children. In general, the young people who have come before the courts and been placed subsequently in secure accommodation have been in the care of the health boards for several years. Their care histories show episodes of homelessness and a series of care placements which were either inappropriate or could not offer the young person sufficient support to meet their needs.
The health boards have been criticised for not meeting the needs of these young people at an earlier age and for allowing their situations to deteriorate to the point where the only alternative is to seek a secure detention place to ensure the young person’s safety. Two secure Special Care Units have been established to respond to the needs of these young people. However, the delay in providing such units and the inadequate number of beds provided prompted a High Court judge, Mr. Justice Peter Kelly, to hold three Government Ministers in contempt of court in 2001.
The ongoing lack of secure health board accommodation has led to non-offending children being routinely detained under court orders in Children Detention Schools, police stations, hotels, adult prisons and even adult psychiatric hospitals. It has been reported that at certain times as many as 40% of the places in Oberstown and Trinity House are occupied inappropriately by children who have not been sentenced for a criminal offence but have been remanded due to behaviour or emotional needs.
The detention of non-offending children in Children Detention Schools and within the prison system is a regressive practice. On the 16th of May 2002, the European Court of Human Rights ruled against the Irish Government in the D.G. v Ireland case. The case challenged the legality of detaining in St. Patrick’s Institution a 16 year-old non-offending child with serious behavioural problems who had previously committed offences. The European Court ruled that the detention of the child in St. Patrick’s was in contravention of rights guaranteed under Article 5.1 of the European Convention on Human Rights. The court ruled that the State acted unlawfully in failing to provide the disturbed child with a safe, suitable, therapeutic unit and upheld the claim that the young person’s human rights were violated.
The widespread and chronic failure to fill vacancies in the social service, particularly in the Dublin area, has had a crippling impact on efforts to provide non-punitive services to children with behavioural problems, to children who have committed offences and to children in and out of care who are at-risk of becoming offenders. Many centres are operating well below full capacity due to difficulties in recruiting and retaining qualified and experienced staff. For example, the Ballydowd Special Care Unit was built to cater for twenty-four young people but due to recruitment difficulties has never been able to deal with more than eight young people at a time.
No system of service provision can operate with any reasonable degree of effectiveness when staff vacancy rates reach 25–50% of staff complement, as they have in the Dublin area, or when there are 2,272 children on the waiting list for social services, as there were in the Eastern Regional Health Authority service area as at the end of March 2001.
Management and operational deficiencies of this order of magnitude ultimately translate into ever-increasing numbers of children coming before the courts, both as offenders and non-offenders, and more placements that violate children’s rights. Moreover, despite government policies, domestic law and international treaties to the contrary, the knock-on effect promotes an increased reliance on punitive measures over preventive, therapeutic and rehabilitative approaches to the treatment and care of children with behavioural problems and to the treatment and care of children who have committed offences.
Lack of Safeguards for Children in Detention
Concern has been raised regarding the lack of safeguards of children under Special Care Orders and for offending children in detention. Given the vulnerability of these children, it is imperative that safeguards are put in place as soon as possible.
Lack of Provisions for Children under Special Care Orders
The safeguards outlined in the Children Act 2001 in relation to Special Care Orders are minimal. The Act does not define the boundaries under which an Order can be granted. There is a danger that in order to access suitable accommodation, a child’s behaviour may be defined in terms which will allow for the court to grant such an order and detain the young person. Other safeguards which are absent from the legislation include the child’s right to a solicitor and the right to representation at reviews.
Ombudsman for Children Exclusion
Legislation to establish an Office of Ombudsman for Children was passed into law in April, 2002 (Ombudsman for Children Act, 2002). Although broadly welcomed, the Act contains certain inappropriate exclusions in relation to the Ombudsman’s authority to hear complaints, including the exclusion of children in prison. During the debate on the Ombudsman for Children Bill, this exclusion was defended on the basis that under the Children Act it will be illegal for children to be held in inappropriate places, and that the exclusion of children in detention will refer only to children who are legitimately in places like St. Patrick’s Institution by virtue of their being offenders. The exclusion of children in prisons from the remit of the Ombudsman for Children is however particularly worrying in light of the lack of clear legislative guidelines on what may or may not constitute a place of detention and on the type of regime that should operate in a place of detention. Section 56 of the Children Act 2001 provides that a detained child can be kept in a cell when no other place is available and Section 150 gives the Minister discretion in defining a ‘place of detention’ suitable for the detention of offenders who are between the ages of 16 and 18 years of age.
Limited Role of Garda Inspectorate
In October 2002, the Minister for Justice announced plans to establish a Garda Inspectorate, with powers of an Ombudsman, to replace the Garda Complaints Board. The Alliance welcomes this development as an important step in the promotion and protection of children and young people’s rights as they interact with the Gardai.
The Alliance is, however, concerned at reports that there are to be limitations on the Inspectorate’s investigative remit. It has been reported that the proposed Inspectorate’s remit will extend only to "the most serious allegations". All “minor disciplinary matters” and "more serious allegations" would continue to be dealt with internally within the Garda Síochána. Thus the majority of complaints against members of the Gardaí would continue to be investigated by fellow Gardaí, albeit internal investigations of “more serious allegations” would be overseen by the Inspectorate. The Alliance believes this proposed arrangement to be deeply flawed and will perpetuate the problems of the current system.
The Alliance calls for the Inspectorate’s remit to be extended to ensure that the rights of children and young people, who interact with the Gardai, are protected and vindicated.
Human Rights Commission
In their Strategic Plan 2003-2006 the Human Rights Commission has identified juvenile justice as one of their key areas of work. They cite their concern “about conditions of detention of children and young persons in custody and the provision of appropriate secure facilities for disturbed or distressed young people who have not been charged with any offence. The commission will co-operate with other interested bodies to monitor this area with a view to ensuring that international human rights standards and best practice are observed.”
Visit of the European Committee for the Prevention of Torture
A delegation of the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment paid an unannounced visit to Ireland in May 2002. It was the Committee’s third periodic visit to Ireland but the first time they included a focus on children in detention. The Committee visited Trinity House School in Lusk, a detention facility for 12 to 16 year old boys and met with statutory agencies and non-governmental organisations, including the Children’s Rights Alliance. It is understood that the Government will publish the Committee’s report on its visit and the Government’s response sometime this summer.
We believe the following steps should be taken as quickly as possible to address the current crisis in the child care and juvenile justice systems:
1. Bring into force the remaining provisions of the Children Act, 2001, including the sections covering family welfare conferences, special care provision and private foster care. Introduce bail supervision and support schemes to avoid children committing crimes on bail. Priority should be given to the preventive elements of the 2001 Act and to the investment of resources in community and statutory services necessary to support these measures, including the full staffing of the social work service. Priority should also be given to resourcing community-based, non-custodial options and to the provision of community supervision services, step-down facilities and after-care services.
2. Ring-fence funds raised through the sale of Shanganagh Castle for non-custodial juvenile justice projects and services to children and young people.
3. Consult with the Ombudsman for Children, the Human Rights Commission and non-governmental organisations to ensure that practices adopted by relevant governmental bodies are in line with international human rights requirements and standards of best practice.
4. End the practice of mixing children and adults in detention. Children must not be detained in prisons, adult psychiatric hospitals, Garda stations, hotels and other inappropriate places of detention.
5. End the practice of placing non-offending children in facilities for offenders. Children with severe emotional or behavioural problems should not be placed in facilities for offenders, including juvenile justice institutions or the adult prison system.
6. Correct the practice of misplacing children in Children Detention Schools. Provide specialised community services (and if necessary residential services) to meet the needs of certain at-risk children and adolescents. These children include those with learning disabilities, acute psychiatric illnesses, children requiring medically supervised detoxification for drug use, persistent school non-attendees and those at risk of leaving home. Culturally appropriate prevention services are needed to tackle the disproportionate representation of children from the Travelling Community in detention.
7. Fill vacancies in the social work service to provide children with access to care and counselling services without delays. Implement a drive to recruit and retain suitable, qualified and experienced staff.
8. Provide additional safeguards for children under Special Care Orders and for offending children in detention.
Draw up a national regulatory framework to govern disciplinary practices. Introduce guidelines to govern the type of accommodation and regime which the Minister may define as a ‘place of detention’ (Section 150, Children Act, 2001) and in relation to the detention of children in cells where no other place is available. Appoint an Inspector of Children Detention Schools. Implement the guidelines of the Special Residential Services Board, particularly in relation to the duration of placement and review intervals. Amend the Ombudsman for Children Act, 2002 to allow children in prison to avail of the services of the Ombudsman.
9. Provide children with the right to representation.
Introduce guidelines to define the grounds on which a child may be detained in a Special Care Unit to ensure the right of the detained child to have access to a solicitor and the right to representation at reviews. Ensure that Special Care Orders cannot be automatically renewed without a full status review. Implement statutory provisions regarding the Guardian ad Litem service.
10. Have all Garda stations provided with child-friendly holding rooms separate from adult cells. Ensure the separation of children in detention from adults and ensure that all Garda stations make available rooms that are child friendly and separated from adult cells and holding rooms.
11. Ensure that all children in detention are informed of their rights.
12. Ensure that all staff who work with children are fully trained in children’s rights and committed to the principle that children are to be treated as children first.
Raymond Dooley is the Chief Executive and Maria Corbett is the Policy Officer of the Children’s Rights Alliance, a coalition of 74 non-governmental organisations concerned with the rights and welfare of children in Ireland.