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Children (Amendment) Bill 2015 [Seanad]: Report and Final Stages (Continued)

Wednesday, 15 July 2015

Dáil Éireann Debate
Vol. 887 No. 2

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Deputy Sandra McLellan: Information on Sandra McLellan Zoom on Sandra McLellan I move amendment No. 2:

In page 9, between lines 35 and 36, to insert the following:
“(3) Where an inquiry is held under subsection (1) the child shall be provided with an opportunity to be heard and to respond to any allegation of disciplinary breach orally or in writing.”.

Although the Bill makes provision for the director of the Oberstown campus to hold an inquiry into an alleged breach of discipline and inform the child of the details of that inquiry, no provision is made for the child to respond or be heard. In order that provision is made for a child to be heard fairly if he or she is accused of being in breach of discipline or brought before an inquiry, we must ensure the procedures children encounter in detention settings are understandable to them and take into account their age and vulnerability. It could very well be a child's first time in such a setting, which is an intimidating and traumatic experience for any child. We must also be aware that many children within the system have literacy difficulties. This must be taken on board when addressing any disciplinary measure. Any reason for the imposition of a sanction should be recorded in writing and communicated to the child in ordinary language. The opportunity to be heard is of such importance, in terms of a child's rights and due process, that it should be provided for in the Bill.

Deputy Clare Daly: Information on Clare Daly Zoom on Clare Daly In the matter of a child's opportunity to be heard and respond to an allegation of a breach of discipline, as the Bill stands, a child does not have the right to respond. The stakes, however, are high. Potentially, the forfeiture of 14 days remission, effectively a loss of liberty, is at stake. Therefore, the child must be heard. It would be good to write this into the Bill.

Deputy James Reilly: Information on Dr. James Reilly Zoom on Dr. James Reilly Sections 18 and 19 of the Bill will apply a new disciplinary system to children subject to a detention order. Section 6 inserts a new section 88B in the Children Act. Section 88B will apply the same disciplinary system to children remanded in custody as applies to children subject to a detention order. Some exceptions to the application of the disciplinary system to children remanded in custody will necessarily apply such as forfeiture of remission which can only apply to a child subject to a detention order.

Amendment No. 2 proposes to insert a new subsection (3) into section 88B to provide that where a disciplinary inquiry is held in respect of a child remanded in custody, he or she shall be provided with an opportunity to be heard and respond to any allegation of a breach of discipline orally or in writing. Amendment No. 7 proposes to insert a new subsection (2A) into section 201 to provide that where a disciplinary inquiry is held in respect of a child in detention, he or she shall be provided with an opportunity to be heard and respond to any allegation of a breach of discipline orally or in writing.

Subsection (3) of section 201 which is being inserted into the principal Act provides for the procedure relating to an inquiry to be prescribed by the Minister. The procedure prescribed would include matters providing for fair procedures such as providing the child with an opportunity to be heard and respond to any allegation of a breach of discipline. It is intended that the operational and practical matters relating to such an inquiry will be prescribed and that they will include matters relating to fair procedures for a child. Matters such as giving an opportunity to be heard and respond orally or in writing are basic principles of fair procedures and natural justice and will be incorporated in the regulations made.

It is not proposed to incorporate some of the procedures relating to an inquiry in primary legislation and incorporate other procedures in secondary legislation. All matters relating to a disciplinary inquiry by the director will be prescribed in regulations. The regulations will apply to children subject to a detention order and children who are remanded in custody.

The issue of fair procedures proposed in the amendment will be comprehensively addressed in regulations to be adopted on foot of enactment of section 18(3). At a recent meeting with the Office of the Ombudsman for Children about the Bill my officials undertook to consult that office in the drafting of the regulations. I do not, therefore, propose to accept amendments Nos. 2 and 7.

Deputy Sandra McLellan: Information on Sandra McLellan Zoom on Sandra McLellan I thank the Minister for his reply. It is very important that a child be given a fair hearing, especially if he or she is in breach of discipline. He or she must be afforded an opportunity to respond orally or in writing. We must also understand some of the children in question have very poor communication skills and literacy problems. The are entitled to a right to reply - verbally or in writing - and it should be afforded to them.

Deputy James Reilly: Information on Dr. James Reilly Zoom on Dr. James Reilly I fully accept what the Deputy is saying. It will be provided for in regulations.

  Amendment put and declared lost.

Deputy Clare Daly: Information on Clare Daly Zoom on Clare Daly I move amendment No. 3:

In page 10, line 9, to delete “offence.” and substitute the following:
“offence, and may be less. 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.”.

This amendment provides for that which the Bill is supposed to be about. The principle that detention should be seen as a last resort is not actually provided for in the Bill. On Committee Stage the Minister rejected the amendment on the grounds that detention was a measure of last resort as set out in section 96(2) of the 2001 Act. While that section states detention should be seen as a measure of last resort, the amendment would be more emphatic in stating it "shall" be. It provides that there would be no latitude whatsoever for judicial discretion in this regard. It may seem like I am nitpicking, but the issue merits it, as we are talking about the welfare of children. It is vital that we reiterate at every opportunity the clear principle that detention, including on remand, should be seen as a last resort for children. This is a clear requirement of the Convention on the Rights of the Child.

  Apart from the principle that detention should be seen as a last resort, amendment No. 3 would also provide that in handing down a sentence of detention, the court should have regard to the child's age, maturity and best interests. Section 96 of the principal Act is rather loose, stating the court may take these matters into account. That is not good enough. The amendment would not interfere with section 96 but would merely strengthen it in order to ensure the best interests of the child would at all times be considered. The Minister was keen to emphasise this on Committee Stage as the Government's intention in the Bill. I do not see why there should be a difficulty in incorporating it.

Deputy Sandra McLellan: Information on Sandra McLellan Zoom on Sandra McLellan Rehabilitation should be the first option when addressing minors with issues. The State has a duty to protect and facilitate children who are experiencing difficulties in their lives. We need to treat these children as minors, not as adults or criminals. They must be afforded all of the supports they need for rehabilitation. That should be the State's first priority. While the Bill gives consideration to the principle of equality of treatment between children in detention schools and adults in the prison system, the wording could reflect the spirit of the Children Act 2001 more closely by emphasising the importance of the principle that detention should be seen as a last resort for children.

Deputy Robert Troy: Information on Robert Troy Zoom on Robert Troy I support the amendment. Without question, as everyone will agree, the principle underpinning the Children Act is that detention should be seen as a measure of last resort. I fail to see, therefore, why the Minister is opposing the amendment, or how accepting it would in any way diminish or weaken the Bill. All it could do is strengthen it by ensuring it would make it explicit that detention was a measure of last resort. As previous speakers rightly said, we should be in the business of rehabilitating, supporting and working with children who find themselves in a particular position.

I visited Oberstown recently as part of the Oireachtas Joint Committee on Health and Children. The building is magnificent, but, ultimately, the children who end up there are captive. They are prisoners in a building, which does nothing to rehabilitate them. If children end up in such a position, society has failed them. Putting them in a place such as Oberstown should be seen as a last resort. I hope the Minister will take on board the amendment in the spirit in which I am sure it was submitted.

Deputy James Reilly: Information on Dr. James Reilly Zoom on Dr. James Reilly Amendment No. 3 proposes to insert the words “and may be less” and a statement that “[t]he 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) of the Bill.


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