Offences by Children

Criminal Liability of Children

The Children’s Act 2001 increases the age of criminal responsibility to 12 years. —A child under 12 years of age shall not be charged with an offence.

This does not apply to a child aged 10 or 11 years who is charged with murder, manslaughter, rape, rape or aggravated sexual assault. The rebuttable presumption under any rule of law, namely, that a child who is not less than 7 but under 14 years of age is incapable of committing an offence because the child did not have the capacity to know that the act or omission concerned was wrong, is abolished.

Where a child under 14 years of age is charged with an offence, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the

Where a child under 14 years of age is charged with an offence, the Court may, of its own motion or the application of any person, dismiss the case on its merits if, having had due regard to the child’s age and level of maturity, it determines that the child did not have a full understanding of what was involved in the commission of the offence.

Welfare & Justice Issues

Legislation has traditionally dealt both with welfare and justice issues. Courts dealing with children and young offenders, formerly also dealt with a range of  welfare type issues such as  removing them from undesirable environments and making provision for their training. The education and welfare aspects predominated over criminal aspects.

Traditionally, children were to be assisted rather than punished. The matters were dealt with in summary jurisdiction courts (now the District Court), whose function was primarily criminal in nature, dealing both with welfare issues and offences. Some of the sanctions and orders blurred the line between punishment and assistance.

Formerly, children who were unruly and uncontrollable could be deprived of their liberty for protracted periods, notionally in the interest of their welfare, when offences were relatively minor.

In modern times, the courts have a constitutional duty to children. In civil proceedings the paramount consideration is the best interests of the child. In criminal proceedings, this is to be balanced with other constitutional rights, in particular, the guarantee of a fair trial, primacy of the welfare of a child in relation to custody, guardianship and upbringing of a child should not be carried over to criminal proceedings.

The Children’s Act provides for criminal liability for children, investigation and trial of offences and orders and remedies available to the court.

Principles of Juvenile Justice

Section 96 of the Children’s Act 2001 provides that every court dealing with a child defendant must have regard to the principle that the children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, the right to be heard and to participate in any proceedings that affect them. Criminal proceedings shall not be used solely to provide assistance or service needed to care for or protect the child.

When imposing a penalty on a child, the court must have regard to the fact that it is desirable where possible.

• to allow the education, training or employment of children to proceed without interruption,
• to preserve and strengthen the relationship between children and their parents and family members;
• to foster the ability of families to develop their own means of dealing with offending by their children;
• to allow children to reside in their homes.

The Penalty should not interfere with the above principles as little as possible and should take the least restrictive form that is appropriate in the circumstances. The sanction. Detention is to be a last resort.

Non-Disclosure & Expiry

The Children’s Act provides for nondisclosure of offences committed by children after a lapse of three years.  It does not apply to offences tried by Central Criminal Court.  It applies when the offence was committed when the person was under the age of 18. The person must not have been dealt with for an offence in that three year period.

The provision does not apply to a person who has been found guilty of an offence unless he has served a period of detention or otherwise complied with the Court order.  It may apply to persons who have failed to pay a fine or other sum or imposed, the person on a finding of guilt a condition of a recognisance to keep the peace or to be of good behaviour, or breached any condition applicable to a Court order which renders a person to whom it applies liable to be dealt with for the offence concerned.

A person, who benefits from the provision is treated for all purposes as if he had not committed or been charged with or prosecuted for or found guilty or dealt with for the offence subject of the finding of guilt.  Notwithstanding any other provision of law, no evidence is to be admissible in proceedings before a judicial authority to prove that any such person committed the offence has been charged with or prosecuted for, found guilty or dealt with for the offence concerned.

A person shall not, be asked, questions in any proceedings and shall not be required to answer any question relating cannot be answered without acknowledging or referring to a findings to which the above provisions apply or any ancillary circumstances.

Where a person seeking information in relation to a person’s previous findings of guilt, offences, conduct or circumstances is put to him other than in judicial proceedings, the question shall be treated as not relating to the findings to which the reinstate provisions apply in any ancillary circumstances and the answer may be framed accordingly.  A person questioned is not to be subjected to any liability or prejudice by law by reason of failure to acknowledge or disclose on any such findings or circumstances in answer to the question.

Any obligation on any person by rule of law or agreement shall not extend to requiring him to disclose a finding to which the provisions apply or any ancillary circumstances.

The finding to which the provision applies, shall not be a proper ground for dismissing or including a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment.

The ancillary circumstances, ancillary to a finding are:

• that the offence which is the subject of the finding are the offences subject of the finding;
• the conduct constituting that offence,
• the process or proceedings preliminary to the finding;
• any penalty imposed in respect of it;
• any proceedings for reviewing any such penalty;
• anything done in pursuance of or undergone in pursuance, compliance with such penalty.

Orders against Parents

A parent or guardian may be ordered to pay compensation where the court is satisfied is the appropriate sanction. The court must be satisfied that the wilful failure of the parent or guardian to take care of or control the child contributed to his criminal behaviour. This does not apply to a foster parent or a child being maintained by the Health Service Executive. The parent or guardian must be given the opportunity to be heard.

The court will have regard to the present and future means of the parent or guardian. A compensation order may be recovered from the parent or guardian as if that person was the person convicted of the offence. The compensation awarded is not to include consequential loss. It is not to exceed the direct cost of repair or replacement.

Courts may make other orders against parents and guardians where the child is being convicted of an offence. A parental supervision order may be made where the court finds that the wilful failure by the parents to take care of and control the child contributed to the child’s criminal behaviour. This may be made in addition to other orders. Parents must be given the opportunity to be heard and the court must consider information about the family and parents’ personal and social circumstances and how the order may impact on those circumstances.

Order Issues

The order may require parents.

• to undergo treatment for alcohol or substance abuse where treatment facilities are reasonably available,
• to participate in any parenting skills course that is reasonably available;
• to adequately control and supervise the child to the best of their ability, save where the terms of any community order imposed on the child make this impractical;
• comply with the instructions from the court, which seek to assist in the child refraining from further offences.

The order may be for a maximum of six months. A probation and welfare officer are appointed to supervise the parents and to assist them in complying with the order.

A parent may be bound over to exercise proper and adequate control over children. Failure to comply would be contempt of court. The maximum recognisance is €250. The order may not extend for more than three years or beyond the child’s 18th birthday. Account is taken of the age and maturity of the child.