Juvenile detention centres do good work, it's just that there aren't enough of them, lawyers tell Carol Coulter, Legal Affairs Correspondent
The 2001 Children Act was signed by the President, thereby becoming law, in July 2001. It was intended to replace the 1908 Children Act, which deals with young offenders.
The Act itself started life as the Children Bill 1999, so it was two years in gestation, and followed three decades of discussion. Although formally now on the statute books, no commencement order has been issued by the Minister for any of its sections.
This non-implementation of law is not unusual. Almost 11 years after it was passed, two sections of the 1991 Child Care Act, dealing with social reports on children and the appointment of guardians ad litem, are still unimplemented.
The non-implementation of the 2001 Act means that children in the criminal justice system are still dealt with under the 1908 Act, now almost a century old. Much legislative water has flowed under the bridge since then, not least Ireland signing up to the UN Convention on the Rights of the Child and the European Convention on Human Rights, both of which include sections on children in the legal system.
Mr Geoffrey Shannon is a solicitor and a lecturer in law, and an expert in the law on children. He believes the 2001 Act represented a major step forward, and, if implemented, would be effective in intervening to prevent children becoming irreversibly involved in crime.
"Under the 2001 Act custodial sentences are a last resort," he said. "It introduces alternative roads to dealing with crime.
"It is quite proactive. It will put the Garda Juvenile Diversion Scheme on a statutory footing. That has been an unqualified success so far. It also provides for convening family group conferences to establish why the child became involved in the problem behaviour. The Act introduces the issue of parental control."
However, he stressed that the standards of care and control expected of parents should also apply to the State when it acts in loco parentis. "The State as a parent has had a disturbing history and should be subject to similar sanctions as parents. At the moment it is immune from sanction for failing these children.
"A number of the stakeholders involved are concerned about the implementation of this Act because the number of special care units needed have not been provided. There seems to be a reluctance to pump in the kind of resources that would be necessary to implement the Act."
Even certain provisions of the 1908 Act are not being implemented, according to solicitor Mr Pol Ó Murchu, who deals with a large number of troubled children. "The 1908 Act says that every court and every Garda station should have a register of places of detention available for inspection. That does not happen," he said.
"The present situation is very haphazard, very unsatisfactory. If you go along to the Children's Court any day you will find 10 to 20 able-bodied young lads hanging around waiting for their case to come up. They are meeting other similar young people, and possibly bullying is going on.
"This has been going on for years and years. Young people would be sentenced to, say, two years and would not serve the sentences. The judges have given up sentencing because they know there are no places. So they give a less appropriate order. I have 14- and 15-year-olds who would be shocked if they learned in the morning that they were going to be locked up.
"Why has the DPP not taken action against the State for failing to ensure that the orders of the courts are vindicated? Why have the Garda not taken action when they are asked to keep them in Garda stations?"
Mr Ó Murchu, along with other lawyers working in the area, insist that the service offered by the detention centres, such as Trinity House, Oberstown and St Michael's House, offer a very good service, and substantial numbers come out diverted from what otherwise would have been a life of crime. The problem is that there are not more places like them, and that the alternatives envisaged in the 2001 Act have not been brought on stream.