New powers granted to his office will allow improvements in the youth justice system, Brian Lenihan tells Carol Coulter, Legal Affairs Correspondent
Amendments to the Criminal Justice Bill currently before the Oireachtas are actually an improvement on the much-praised Children's Act, not a rowing back, according to Minister for Children Brian Lenihan.
Many children's advocates have criticised these amendments, claiming that they run counter to the spirit of the Children's Act, which sees detention as a last resort for children who offend and which emphasises community-based remedies.
Mr Lenihan vigorously contests the view that the amendments in any way undermine that Act, stressing that it contained flaws which are now being mended. "It envisaged prison-type facilities for 16 and 17-year-olds," he says.
"I've persuaded the Government to agree that all offenders under 18 should be held in detention schools which are no longer part of the prison facilities. This goes much further than the Children's Act."
Responding to the criticism voiced by the Children's Ombudsman and others that there is still no date for the closure of St Patrick's Institution, he says it would not be possible to embark on the detention section of this Act, permitting the rest of it to implemented, if there was no place to detain young people
"We don't have a date, but we do have agreement on resources," he says. "The Department of Education had money voted for detention schools that was never used. That has now been signed over to Justice."
He also contests criticism of delay in implementing the Children's Act, insisting that it was always indicated it would take eight or nine years to implement fully. "I'm accelerating it," he says. "I've started to roll out community sanctions.
"There was a huge strategic defect in the Children's Act in that there was no clear administrative responsibility for it. That was not assigned at the time. It is now under one heading, with a voice at Cabinet. There is a need for strategic direction and it now has that."
Turning to the controversial question of anti-social behaviour orders (Asbos), he says that great care had now been taken with them to mirror the philosophy of the Children's Act.
"Minister McDowell acknowledged that the original proposals were too robust. He has acknowledged he asked me to look at them, and he agrees they are now more tempered.
"Juvenile diversion programmes and good behaviour contracts have to be the first ports of call. The key issue is that jurisdiction will be vested in the Children's Court in issuing Asbos. It is important that the Children's Court is resourced, so that it has back-up to deal with these issues.
"Anti-social behaviour can be the basis for admission to a youth diversion scheme. Only if it is persistent can the Garda Superintendent sanction seeking an Asbo. Then it must go to the District Court, sitting as the Children's Court. That court may take the view there is another solution. If it gets that far there has been very serious misbehaviour."
The Criminal Justice Bill also envisages the identification of children against whom Asbos have been issued, which has also been criticised by the Children's Ombudsman.
Mr Lenihan does not see this as publication in the media, but only making the order known to those who are directly affected. "You can't have a secret court order," he says, "but the amount of publicity has to be proportionate to making it effective while protecting the child."
So would it then be like a barring order? "I'm open to that approach. The order has to be made known to the person it is sought to protect."
The Human Rights Commission and others have also criticised the proposal to set at 10 years the age of responsibility for certain serious crimes committed by children, specifically homicide and rape. The age of responsibility for most other crime is raised by the Children's Act from seven to 12.
"There have been cases in other jurisdictions where there have been manslaughters by 11-year-olds. There have been serious offences committed here by 11-year-olds. I don't think it's satisfactory for victims that the only sanction is for the perpetrators to be referred to social services."
Surely 10- or 11-year-old children who kill or commit a serious sexual offence do need help? "Of course they do, but should the courts not have the option to state the position of society on their crime?"
Is the Central Criminal Court the right place to try children of such a young age?
"We may have to look at the manner in which the trial is conducted, but there would be a jurisdictional issue in the Children's Court. Manslaughter can be tried in the Circuit Court and what would arise in such cases would be manslaughter. I am also looking at the issue of the mental capacity of a child to commit such crimes."
Not all social problems concerning children can end up in the youth justice system, the Minister acknowledges.
"The care system is where a lot begins. I have raised this with the HSE. That's why the proposed legislation says the HSE has to attend court on request and tell the court what options are available. Community-based alternatives are being developed as well on the health side."
He says that he and the special youth justice service in the department had considered whether there should be a single area dealing with all aspects of deprivation, including offending behaviour, but decided this was not appropriate. "It comes back to whether you have a concept of youth crime at all," he says.
He has set a target of next April for the rolling out of most of the planned measures.