The United Nations Convention on the Rights of the Child, adopted in 1989 has been widely classified, provides for the rights of children deprived of their liberty and due process rights for children suspected of or accused of having committed a criminal offence.
The Convention provides for a supervisory body, the Committee on the Rights of the Child, consisting of independent experts selected by States. States must submit reports setting out steps they have taken to give effect to the Convention. The reports are assessed.
Third-party organisations may make representations to the Committee. The Committee may respond to State submissions in terms of compliance with the standards of the Convention.
Liberty of Child
The Convention embodies earlier rules setting out minimum standards for juvenile justice. The Convention provides that children should not be subjected to be torture, inhuman or degrading treatment or punishment. They shall not be subject to life imprisonment without the possibility of release or capital punishment. They must not be deprived of their liberty arbitrarily or unlawfully. Arrest and detention are to be a last resort for the shortest appropriate time.
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner that takes account of his age. He shall be separated from adults unless it is considered in his best interest not to do so. He has the right to maintain contact with his family through correspondence and visits, save in exceptional circumstances.
Children deprived of their liberty shall have the right to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority.
A child may not be sentenced to imprisonment. Detention is an equivalent sanction of last resort. It is imposed if the court is satisfied that there is no other suitable way of dealing with the child.
The 2001 legislation provides for children’s detention centres and children’s detention schools. Schools are for children under 16 years and centres are for children between 16 and 18 years. In the case of a child under 16 years, there must be no place in a children’s detention school available.
A children’s detention school is a certified reformatory school or industrial school that becomes a children’s detention school under the legislation, or a play school or premises designed by the Minister for Education as a children’s detention school.
Children Detention Schools
Former Industrial Schools and Reformatory Schools were called children detention schools and were managed by the Irish Youth Justice Service , which is part of the Department of Children and Youth Affairs. There were 3 children detention schools which were considered suitable for detaining remanded and committed children. They were:
- Oberstown Boys School
- Oberstown Girls School
- Trinity House School
The Minister may designate children’s detention centres. He or she may make arrangements with other places for the provision of facilities for children found guilty of offences. The places need not be in children’s detention centres but may be governed by rules applicable to children’s detention centres but without necessarily providing only for child offenders.
A new national children detention facility for children under the age of 18 has been developed at Oberstown. Since June 2016, the three detention schools listed above have been amalgamated to form the Oberstown Children Detention Campus.
Girls and boys from the age of 10 and up to the age of 18 sentenced to a period of detention by the courts are now detained at the Oberstown campus.
Children between the ages of 10 and 16 sentenced by the courts to a period of detention are sent to the Oberstown Children Detention Campus. 17-year-olds sentenced after 31 March 2017 are also sent to the Oberstown Children Detention Campus. People aged 18 years or over may be sent to prison.
Order for Detention
Where a child is convicted of an indictable offence under the age of 16 and if the court is satisfied that there are no other options adequate, it may order detention for longer than three years. It may be no longer than the period for which the child might have been imprisoned if he was of full age.
That detention may be served in the detention school and continued until the child is 18 years six months. At the initiative of the director, the child may be transferred to prison or a place of detention under the Prisons Act when he reaches the age of 18.
The principal object of a children’s detention school is to provide appropriate educational or training programmes and facilities for children referred to them by the court,
- having regard to the health, safety, welfare and interests, including their physical, psychological and emotional well-being,
- providing proper care, guidance and supervision,
- preserving and developing satisfactory relationships between children and their families,
- exercising proper moral and disciplinary influences,
- recognising the personal, cultural and linguistic identity of each and for such purpose to promote their reintegration into society and prepare them to take their place in the community as persons who observe the law and are capable of positive and productive contributions to society.
A children’s detention school seeks to be educational and to reform. They seek to provide appropriate education and training for those who are detained. They seek to promote the social rehabilitation of the child, having regard to his or her health, well-being and safety and provide them with care, guidance and supervision.
It seeks to preserve and develop relationships between the child and their families and exercise proper disciplinary influence on them. They must recognise the personal, cultural and linguistic identity of the child.
The Minister is to appoint a management and chairperson for each school or group of schools. The board of management is to appoint a director and staff to the school.
Periods of Detention
Detention in a children’s detention centre must be for at least three months, but less than three years. Consecutive periods may be imposed. A person should not be detained beyond 18 years. Persons who complete sentences should be under supervision in the community.
Failure to comply with conditions of supervision is an offence subject to summary conviction of imprisonment up to 12 months. Where a child attains the age of 16, the school director may apply to transfer the child to a children’s detention centre from a children’s detention school.
The Director of a children’s detention centre shall accept children ordered to be detained unless the order is defective. The Minister may certify the maximum number of children who may be detained in a given school at any time.
Inspectors & Board
The Minister is to appoint an inspector of children detention centres who is to hold office for five years, renewable. The inspector is to inspect each school and place of detention at least once every six months. A visiting panel is to be appointed by the Minister consisting of six to eight persons. There may be several panels organised on geographical grounds.
The Special Residential Services Board is responsible for policy in relation to children, subject to detention or special care orders. The Board consists of 12 members appointed by the Minister with a range of expertise in relevant areas. The Board is to coordinate the delivery of residential accommodation and support to children in detained centres and special care units.
The Board is to liaise with the courts on the level and nature of services available to children charged with offences or in need of special care and protection. It is to assist courts on request in identifying suitable places in detention centres and it is to liaise with school directors.
Absence & Discipline
A child who breaches the rules of a detention school may be disciplined in a way that is reasonable. The Minister may prescribe disciplinary provisions regarding corporal punishment, physical violence, and deprivation of food and drink. Treatment which is detrimental to physical, psychology or emotional well-being is prohibited.
Children may be permitted to be absent from the school for reasons such as illness of a family member, funerals and other exceptional circumstances. Periods of absence are deemed part of the period of detention. Unauthorised absence is not included.
Children may be permitted to be absent for employment, recreational or other beneficial purposes. Trips may be permitted with the aim of reintegrating the child or obtaining necessary counselling.
Where a child has served one month, he may be granted temporary leave. The director, following consultation with the principal probation and welfare officer, may arrange for a child to be placed in supervision in the community.
It is an offence to escape while being transported to or from a detention school or from the school itself. Detention may be increased by up to three months. The overall detention must not exceed three years.
If a child commits an offence escape between the ages of 16 and 18 years, the detention may be served in a children’s detention centre instead of a school. If the child is more than 18 years old, it may be served in a prison or a place of detention.
A person who helps the child to escape is subject to summary conviction to a fine up to €952- or six-month imprisonment and both. It is an offence knowingly to harbour, maintain or conceal a child who has escaped or otherwise prevent a child from returning to a detention school.
A person who, without lawful authority, attempts to enter a detention school, communicates, or attempts to communicate with a child in it is guilty of an offence, subject to a maximum of two months’ imprisonment or a fine of €317 or both.