Fourth Report of the Special Rapporteur on Child Protection: Statements

Fourth Report of the Special Rapporteur on Child Protection: Statements

Tuesday, 7 June 2011

Senator Ivana Bacik: I welcome the debate and the Minister back to the House. We miss her in this House but I believe I speak for all of us on both sides of the House when I say, and which other colleagues have already said, that we are delighted she has the brief of Minister for Children and Youth Affairs. I know she will do an excellent job in it and I look forward to having her back in the House again.

I welcome also the creation of a full Ministry for Children and Youth Affairs at the Cabinet table. Following on from what Senator John Crown said, that is a mark of serious intent and shows the great significance the Government attaches to the role of Minister for Children and Youth Affairs and to the work the Minister will be doing. As the Minister stated in her opening remarks, progress has already been made on that front.

I want to pick up on some of the comments made by other colleagues. My Labour colleagues, Senators Aideen Hayden and John Gilroy, in particular, have addressed different aspects of this excellent fourth report from Geoffrey Shannon, the special rapporteur on child protection, but I want to focus on an area with which I would be most familiar, namely, section 4 on children and criminal law. As with the other areas the rapporteur has touched upon, I am conscious he has dealt with many of these issues in his first three reports. He has dealt in great detail with issues such as the CC case and the impact of that upon child protection and so on. This is a report that, as the Minister stated, is one of a series dealing with this area.

In terms of children and criminal law, however, as in many other aspects of his findings the rapporteur makes some robust recommendations and picks up on critical aspects of child welfare on which the State is falling down, so to speak, and where we must take action to redress these issues. He points out that the United Nations Convention on the Rights of the Child requires that detention be a last resort and that the best interests of the child be of paramount consideration. He also points out that in civil law proceedings we have tended to adhere to that principle but we are failing to do so in respect of children within the criminal justice system. I know the Minister is well aware of that. He picks up on some critical points and, as someone who has practised in the Children's Court and represented child offenders, I believe what he is stating is spot on in terms of the failings.

For example, the rapporteur points out that while we have passed, in the Children Act 2001, a comprehensive set of important reforms to the law on juvenile justice and child offenders, gaps in that Act remain and he identifies one key gap on page 72 of his report. I know that is something the Minister's Department will pick up on but section 88 of the Children Act 2001, which requires a court to explain the reason it is putting a child in detention, makes no such recommendation in respect of bail conditions. A key finding from the 2007 national study of the Children's Court found that while in practice many children were being detained subject to sentence, an alarming number of children are being detained for failure to observe bail conditions. In other words, children have been granted bail by the Children's Court but because they have failed to appear in court or have broken a curfew or some other aspect of the bail conditions, they are being detained almost as an unintended consequence of setting bail conditions.

Senator Aideen Hayden spoke about the need for bail support systems. We do not have those in place and they are critical for children. The rapporteur details practices in other countries which are much better at supporting young children and ensuring they do not breach their bail conditions. That is something that we must examine.

The other point is the exclusion of young offenders or children in the criminal justice system from the ambit of the proposed amendment to Article 42 of the Constitution on children's rights. A pertinent observation by the rapporteur is that we cannot in practice separate troubled young people, who are protected in many other ways and who would be protected by the amendment, from young offenders because the children who come before the criminal justice system, as any practitioner knows, are generally children who have had huge issues in their lives in terms of poverty, which Senator Aideen Hayden mentioned as a theme that runs through the report, drug addiction, truancy from school, difficulties in the home, abuse, neglect and so forth. Troubled young people and young offenders cannot be separated as two separate categories, yet our law has tended to do that. That is one key message the rapporteur is giving us in section 3 of the report and it is one we must feed into our policy and our legislation.

The Minister dealt with a number of areas where progress is being made, which I welcome, such as, for example, the need to place the Children First guidelines on a statutory footing, which is a commitment in the programme for Government and is vital, and the need to regulate the exchange of soft information. In that regard one quote of the rapporteur stood out for me as a stark admission of failure. He states the failure to regulate the exchange of soft information severely compromises the protection of children in the State, soft information being allegations of abuse where there is no actual conviction. He gives examples of some difficult cases that have arisen and where the State has fallen down in the protection of children.

There are other tricky issues with which we will have to come to grips in the term of the Government, including the disclosure of counselling notes to the defence in sex abuse cases. That is a key issue in practice currently and it is a major problem in terms of prosecution of sex offence cases.

I have much more to say but time does not allow me do so. I welcome the report and the opportunity to debate it with the Minister. I look forward to debating further aspects of child protection with her as her Department comes to terms with some of the recommendations the rapporteur has made. I know she will be dealing with those in a robust way, just as these recommendations are robust.