Detention of Children

Detention Centres

A child, who is convicted of an offence, cannot receive a period of detention which would be greater than the period of detention or imprisonment that an adult could receive for the same offence.

The Children’s (Amendment) Act 2015 deals with the detention of children.  The three children detention centres in the State comprise Trinity House, Oberstown Boys and Oberstown Girls, which are located in a single campus near Lusk, County Dublin.

The campus had been substantially developed. The Act provided for the amalgamation of the three children’s detention centres and for the deletion of provisions enabling the detention and remand of children in an adult facility.

The legislation clarified the treatment of children who attain 18 years while in detention and are still subject to children’s detention orders, whether on foot of summary convictions or convictions on indictment.

A High Court case in December 2013 ruled that children in detention were entitled to remission on the same basis as in the adult prison system.  Accordingly, the legislation makes provision for remission in children’s detention schools.  It provides a new disciplinary process and appeals process where the sanction includes the forfeiture of remission.

Remand

The legislation provided that references to an order to remand a child to St.  Patrick’s Institution or for detention in St. Patrick’s Institution, is to be interpreted as a reference to a remand centre or a children’s detention centre specified by Ministerial order.

The Minister may designate all of a children detention centre or a remand centre as an alternative to designating part only of a children’s detention school as a remand centre as had formerly been provided.  It is provided that where a child is remanded in custody to a remand centre situated in a children’s detention school, and attains 18, the lawfulness of the remand is not affected.

There is provision for the transfer of children remanded in custody from one remand centre to another, including where the remand centre is not situated in a children school.  The Minister for Children and Youth Affairs may direct that a child on remand and be sent to another centre under certain conditions.

The Minister shall consult with the Director or board of management of the remand centre. The Director, or where the remand centre is not situated in a children’s detention school, the board of management of the remand centre to which the child was remanded may request the Minister to make a direction.

Continuation

Provision is made for the transfer of a person who turns 18 years in detention and who is still subject to a children’s detention order, to prison or a place of detention or for their continued detention in a children’s detention home for a period if they satisfy certain conditions.

If a person is engaged in education or training or if the period of detention is less than six months, the Director may determine that the person can continue to be detained in a children’s school for a period not exceeding six months from their 18th birthday.  They may be transferred to a prison or place of detention and serve the remaining period of their detention there.

Closing & Reorganisions

The Minister may make an order closing a specified children’s detention centre from a specified date if he is of the opinion that it is not suitable or no longer required for that purpose.  A temporary closure order may be made for a specified period if the board of management informs the Minister that it is ineligible for the detention of children.

The order may make provision that children who are subject to detention orders made by Courts but not executed shall be detained in such detention school as is specified.

The Minister may provide for the amalgamation of two or more children’s detention centres.  He shall have regard to certain matters when making the amalgamation order.  The amalgamation will not affect the lawfulness of the period of detention or period of remand if a child is detained.

Provision is made in relation to amalgamation on detention orders made and for the transfer of management, Director, management and staff and for dissolution of its board.  Provision is made for final accounts and a report on the performance of the functions of the board of management.  This is to be laid before the Houses of the Oireachtas.

Discipline

The Minister may make regulations relating to disciplinary breaches, and the power of the board of management to make rules relating to discipline.  The board of management has the power to make rules in relation to good order. The Act creates an offence of supplying a mobile phone to a child in detention.

The same disciplinary procedure applies to children on remand as applies to children detained in the children’s detention centre. The Director of the centre may hold an inquiry into an alleged disciplinary breach by a child.

Where the Director decides to hold an inquiry, the child is to be informed of the alleged breach and the time and date of the inquiry.  The Minister may prescribe procedures for an inquiry.  After the inquiry, if the Director finds the child committed a breach, he will record the finding and any sanction imposed.  If he does not so find, the same shall be recorded.

The Director may impose one or more sanctions on a specified child who is found on an inquiry to have committed a disciplinary breach.  The Director may suspend or partially suspend a sanction, other than the forfeiture of remission, subject to conditions, for a period not exceeding three months from the date that the child is informed of the finding and the imposition of a sanction. If a child does not comply with a condition attached to a suspension, the sanction shall take effect immediately from a specified date or may take effect in the manner as abated.

Remission may be restored by the Director if restoration is justified by the child’s performance over time or the child has performed an exceptionally meritorious act.

Nothing is to prevent the Director from taking immediate measures to maintain order and discipline or the security of the children’s detention school.  Where a Director imposes a sanction on a child, he shall explain to the child, in ordinary language, that a petition may be made to the Minister in respect of the sanction.  If the sanction includes forfeiture of remission, he shall explain, in ordinary language, the fact that there is an appeal to an Appeal Tribunal against forfeiture of remission.

A child who is found by the Director to have committed a disciplinary breach or on whom a sanction has been imposed may petition the Minister, within seven days, concerning the finding and sanction.  The Minister may affirm, modify, suspend or revoke the sanction and notify the child accordingly.

Disciplinary Appeal

There is provision for appeal against the finding of a disciplinary breach or sanction and forfeiture or remission or both, to an Appeal Tribunal.  The Tribunal may invite the child and the Director to make written submissions.  The child will be informed of and invited to the hearing and informed that he or she might avail of legal aid, advice or representation.

If the appeal relates only to the sanction, the Tribunal may limit the issues to those relating to the sanction.  Appeal Tribunal may, not later than 21 days from the hearing of the appeal, affirm or annul the finding of a disciplinary breach or sanction or vary the period of remission to furnish for a period not exceeding 14 days or substitute any other sanction.  The decision shall be notified to the Director, the child, the child’s parents in case of children under 18, and the  Child and Family Agency, as appropriate.

The Minister may appoint a practising barrister or solicitor of not  than seven years standing to constitute an Appeal Tribunal.  The Appeal Tribunal may determine its own procedures and general directions subject to any directions by the Minister to ensure consistency in relation to the operation of the Appeal Tribunal.

Temporary Leave

The Minister may suspend, for a period of time, the temporary leave programme of a child or centre if it is not in the best interests of the child, the children’s detention school or society generally and notwithstanding that the Director may have altered the programme of temporary leave.

Where the Director is of the opinion that formulating or altering a temporary leave programme for a child over age 18, it is not appropriate to apply provisions which relate to a child being in the care of his parents or guardian or responsible person; then the relevant provisions may be modified.    The Director may consider the child’s record of behaviour in detention, family circumstances, health and other matters affecting the child’s suitability that the Director considers relevant.

Where a child is aged over 18, the Director may authorise the placing out of a child without a requirement for the child to reside with any person but with a requirement that the child resides at a place specified or approved by the Director.   The Director is to take account of the child’s record of behaviour while in detention, the child’s health, family circumstances, and other matters affecting the child’s suitability that the Director considers relevant.

In Detention

A member of an Garda Síochána is empowered to arrest the child who has escaped from a children’s detention school, whether before or after their 18th birthday.  The Director may determine that the person shall continue to be detained in a children’s detention centre or transferred to a prison, as necessary.  It is an offence to harbour children who have escaped. This includes persons who are now adults.

It is an offence to supply or attempt to supply a mobile telecommunications device to a child detained in a children’s detention school on remand in a remand centre or in lawful custody outside the children’s detention centre or remand centre.  A person is subject on summary conviction to a Class D fine or imprisonment for a period.

There is a power of arrest by Garda Síochána while a person is in detention or on remand. Questioning in relation to an offence or offences other than those for which he is detained may take place.

St.Patricks Institution

Male offenders aged 16 to 21 were also sent to places of detention instead of prison. The main place of detention was St. Partick’s Institution, which was formerly known as Borstal and took male offenders between the ages of 16 and 21. St. Patrick’s Institution was closed on 7 April 2017.

St. Patrick’s Institution was a former Borstal reconstituted by the Criminal Justice Act 1960. This Act allowed persons between 17 and 21 years of age to be sentenced to St. Patrick’s in lieu of imprisonment.

Under Criminal Justice Act 1914, offenders between 16 and 21 convicted on indictment who are liable for imprisonment where it appeared by reason of their habits and tendencies and associations with persons of bad behaviour, could where it was deemed expedient be sent to St. Patrick’s institution for a maximum of three years. The Supreme Court held in the 1960s that detention in the St. Patrick’s institution is equivalent to imprisonment.

Until the Children’s Act 2001 provision came into full force, a person up to 17 could be sent to a reformatory school. Persons who were 16 could not be sent to St. Patrick’s unless they are unsuitable for reform school under the old law.The District Court could sentence persons directly to St. Patrick’s institution, provided that the maximum sentence is 12 months or up to 24 months concurrently.

A person detained in St. Patrick’s Institution who was reported to the Minister by the visiting committee to be incorrigible or exercising a bad influence on other inmates could be transferred to imprisonment. This provision was upheld as constitutional on the basis that the forms of custody were in effect, identical.