Child Penal Detention

Law Reform

The Children’s Act restricts the imprisonment of children. Under the prior law, a child under 15 may not be imprisoned but a young person between 15 and 17 may be imprisoned if the court certifies he is of unruly or depraved character and not fit to be held in a place of detention otherwise available. Its constitutionality was upheld in a challenge in 1991.

The court must have found the persons to be of unruly character or depraved before exercising the power to imprison under the former Children’s Act. This is repealed by the 2001 Act.

A young person convicted of murder prior to the commencement of Children’s Act 2001, the trial court is to retain jurisdiction in the case. It appears the courts have a discretion as to the sentence to be imposed. They may impose sentences including life detention, subject to ordering review, notwithstanding that the Supreme Court has otherwise disapproved of reviewable sentences.

Notwithstanding any  provision on sentence of imprisonment on a child, committal of a child to prison, transitional provisions applied in respect of males between 16 and 17 years being detained in St.  Patrick’s Institution or place of institution until a place which is suitable for the admission of children of those ages, became available in a designated children detention centres, before they had completed their period of detention.

Detention Order

The Court may make a Children’s Detention Order under the Children’s Act 2001 as amended The Irish Youth Justice Service is responsible for children’s centres and for developing children’s detention places for 16 and 17-year-olds.

A child may be detained by the Court to a detention centre.  Detention is intended to be a last resort.  Detention school seeks to follow a model of care education and rehabilitation. See the other sections in respect of the very wide range of community sanctions, which are intended as an alternative to detention.

There are a number of the detention schools where a child may be detained, including Trinity House, Lusk;Oberstown Boys School; Oberstown Girls School, Lusk;  Finglas Child and Adolescent Centre formerly (St.  Patrick’s Institution) for 16 and 17 year old boys..

The Court shall not make an order imposing a period of detention on a child, unless it is satisfied that detention is the only suitable way of dealing with the child and that a place in the children’s detention school is available to the child. The court shall give reasons for making the order in Open Court.

Probation & Deferral

There is provision for deferment of a detention order.  The Court may request the probation report to include an assessment for deferment of a detention order.  The probation report is presented to the Court outlining a child’s suitability for the order.

It may propose the length of the probation supervision order in the community that would be deemed appropriate.  It may specify other conditions necessary for the child concerned in assisting him or her in reducing the likelihood of re-offending.

The Court makes a deferment order.  In the case where there is lack of suitable place for the child in a detention school, the Court shall order the director of the school to apply to Court to make the detention order when such a place becomes available.

In other cases, the Court shall state in open court the period that the detention is being deferred, the date of the resumed Court hearing and any other appropriate conditions.

The Court shall explain to the child in open court, in language appropriate to the level of understanding of the child,

• why the making of the order is being deferred and for what period,
• the expectation of the Court that the child will be of good behaviour during that period and the consequences if he or she fails to comply with the conditions,
• the expectation of the court that the parents, guardian of the child, where appropriate, will help encourage the child to comply with the conditions.

The probation officer prepares a report for the date of the resumed hearing specifying the child’s conduct over the period and other relevant information.

The resumed hearing is to take place within a year of the date of the adjourned hearing. The Court considers the probation officer’s report and, if necessary, hears evidence.  The Court shall by order

• impose a period of detention which it had deferred or any shorter period,
• suspend the whole or any period, or period of detention so imposed, or
• impose a community sanction appropriate to the child.

Detention Order

Where a director of a children detention school applies to the Court to propose making a detention order, when a suitable place becomes available, the Court may issue a summons requiring the child to appear before it.  A warrant may issue if the child does not attend in answer.

Where imprisonment is provided for summary offences, the maximum offence would be specified by law.  Indictable offences tried summarily are subject to a maximum of 12 months’ imprisonment.

Detention & Supervision Order

A detention and supervision order is a detention order with the requirement that the child shall have imposed a detention order with a supervision order.  The first half of the order is spent on detention and the second half under probation supervision in the community.

The Court must be satisfied that detention is the only suitable way of dealing with the child, who is between  16 and 18 years of age.  Detention should be used as a last resort, where the child is at the high end of the risk of re-offending scale and other lower tariff community sanctions have been unsuccessful.

The Court requests a probation report to include an assessment for detention and supervision order.  The report is presented to the Court outlining the child’s suitability for the order.  It may propose the length of the probation supervision order in the community that would be deemed appropriate.  It may specify other conditions necessary for the child concerned in assisting him/her in reducing the likelihood of re-offending.

The Court may make a detention and supervision order.  It shall specify the period the order is in force both in detention and under probation supervision within the community.  It will specify other conditions that may be suitable or appropriate.

Where the child is released from detention, on early remission of sentence or has been given temporary release, supervision in the community shall be deemed to commence on release. The provisions in respect of non-compliance with the detention and supervision order are similar to those in respect of other similar order.

Escape

A child who has been ordered by a Court to be detained in a children’s detention school and who escapes while being conveyed to or from the school or escapes or is otherwise absent without permission from the school or any hospital or other institution where the child is receiving medical attention, commits an offence of escape from lawful custody.  He may be arrested at any time by a member of An Garda Síochána without warrant and returned to the school or to the hospital or institution.

A child found guilty of the above offence may be sentenced for detention for a period not exceeding three months.  Where a person who he is found guilty of an offence is 18 years or more, any period of detention imposed shall be served in a place of detention or in prison.

It is an offence to help a child to escape or attempt to escape from lawful custody or abscond from any person with whom the child is placed out on supervision in the community.  A person may be committed on summary conviction subject to fine of up to €952 or a term of imprisonment not exceeding six months.

It is an offence to knowingly harbour, maintain or conceal a child or prevent a child from returning to a children’s detention centre or to any person with whom he has been placed out on supervision in the community.  Same sanctions apply as above.

Offences v Detention

A person who without lawful authority enters or attempts to enter any children’s detention school, or communicates or attempts to communicate with a child detained there, is guilty of an offence.  It is subject on summary conviction, to a fine up to €317 or up to two months imprisonment or both.

A person who without lawful authority brings or attempts to bring into a children’s detention school, or delivers or attempts to deliver to a child in the school, any alcohol or prescribed thing, is guilty of an offence.  The same sanction as above applies on summary conviction.

Where an offence is committed by a person who is under 18, it is not triable in the central criminal court; three years have passed since the finding of guilt and the person has not been dealt with for an offence within that period, their criminal record is to be expunged.

The person is treated for all purposes as if he or she had not been charged, prosecuted, or convicted. No evidence is admissible in proceedings before a judicial authority to prove that the offence was incurred. The person may not be asked or required to answer a question relating to his conduct, which cannot be answered without acknowledging the offence. An obligation to disclose matters under contract should not include an obligation to disclose such an offence.

Failure to disclose the offence is not a proper ground for dismissing the person, excluding him from a profession or prejudicing him in his duty in the course of his occupation or profession.