Abstract
The Children Act 2001 is the statutory framework for youth justice in Ireland. Fully in force since 2007, aspects of the Act appear to be unimplemented while in other areas practice has diverged from the Act’s provisions. Three areas are used to show where youth justice practice has diverged from the legislation: the operation of the Children Court; the use of community sanctions and the use of family conferences and restorative justice. This article studies the disconnect between the law and practice in these three areas, offers some explanation as to why it has occurred and proposes some solutions for how it might be addressed.
Introduction
The Irish youth justice system has been underpinned by a detailed and modern statutory framework since the enactment of the Children Act in 2001. The law provides for how children who come into conflict with the law are to be treated and places on a statutory basis diversionary mechanisms like the Garda (police) diversion programme and probation-led family conferencing. It makes provision for a dedicated court − the Children Court − which hears all minor charges against children and introduces a wide range of community-based sanctions that aim to ensure that the court response to children’s offending is tailored to children’s circumstances. Although parts of the Act were amended in 2006, the 2001 Act has not been amended since the remainder of its provisions were brought into force in 2007.
When the 2001 Act was enacted, it replaced a piece of legislation that was almost 100 years old (Walsh, 2005). Reform of the law was long awaited and it had been proposed and debated for several years (Kilkelly, 2006a). It was to be another six years – 2007 – before the Act was to fully enter in force. Reviewing the operation of the Act in 2014, a gap appears to have emerged between the law as stated in the statute book and practice in Irish youth justice. The aim of this article is to study this disconnect, to try to offer some explanation for why it has occurred and to propose some solutions as to how it might be addressed.
The article first outlines the legal framework for youth justice and details Irish law on the treatment of children in conflict with the law. It then uses research and other available data to highlight three areas in which youth justice practice appears to have moved away from the legal provision. Here, it focuses on the operation of the Children Court, the Garda Diversion Programme and community-based sanctions. The article concludes with some observations as to the reasons for this divergence and having outlined the implications of this situation it then makes recommendations as to how it might be remedied.
Youth Justice Law
Section 3 of the Children Act 2001 defines a child as a person under the age of 18 years, establishing that in principle the youth justice system applies to children below that age. Section 52(1) of the Act, as amended by section 129 of the Criminal Justice Act 2006, provides that a child under 12 years shall not be charged with an offence, effectively setting this as the age of criminal responsibility, with some exceptions. An Garda Síochána (the police) have been operating a diversion or youth cautioning scheme for decades and the 2001 Act placed this scheme – known as the Garda Diversion Programme − on a statutory basis (Brennan, 2012). Under the Act, a child over 12 years who accepts responsibility for an offence and agrees to be cautioned will be referred for admission to the Diversion Programme (s 23). If the Director of the Programme agrees to admit the child, the child will receive either an informal or formal caution depending on whether a caution has previously been issued, the latter usually being accompanied by 12 months supervision (s. 27) by a special trained member of the Gardaí known as a Juvenile Liaison Officer (JLO). The JLO may also decide to convene a family conference (s. 29) − to bring together the child, his/her family and others to establish why the child became involved in the alleged behaviour, to discuss how the family and others can prevent the child from being further involved in such behaviour and where appropriate to review the child’s behaviour since his/her admission to the programme. The conference also serves to mediate between the child and the victim of his/her offending and aims to develop an action plan for the child to prevent further offending.
The Children Act provides that the District Court shall be known as the Children Court when hearing charges against children (s 71). The Act provides that the Children Court shall sit in a different building or room from that in which sittings of other courts are held or on different days or at different times. So far as practicable, sittings of the court must be arranged so that children are not brought into contact with persons attending a sitting of any other court (s 71(2)). The Court must sit as often as necessary for the purpose of exercising its jurisdiction and as far as practicable the proceedings shall be arranged so that the time that the persons involved have to wait to be heard is kept to a minimum. The time stated in every summons requiring a person to appear before the Court shall be the time which the person preparing the summons reasonably expects that the relevant proceedings will be heard (s 73). There is no specialism among the Irish judiciary, but according to the Act, judges of the District Court are required to participate in any relevant course of training or education which may be required by the President of the District Court before transacting business in the Children Court (s 72).
Under the Children Act, the Children Court has at its disposal a range of measures and sanctions that it can choose from as an alternative to conviction. Introduced for the first time are two measures which aim to divert children from the Children Court. Section 77 provides for children who have unmet need to be diverted from the (criminal) Children Court towards the attention of social services (the Child and Family Agency). This provides for a route out of the criminal justice system for children for whom criminal proceedings are inappropriate. The Act provides for the criminal proceedings to be adjourned and ultimately discontinued if the diversion to social services provides an effective response. Section 78 provides a similar mechanism whereby children suitable for a family conference can be diverted to the attention of the probation service for this purpose. Similar to the family conference provided under Part 4 of the Act (dealing with the Garda Diversion Programme), these provisions provide for a child to be diverted to a family conference for the purpose of developing an action plan which is then submitted to the court for amendment or approval. The criminal proceedings are suspended for the duration of the family conference and subsequent measures and if they are successful in preventing the child from further offending, the Court can order the discontinuation of the proceedings against the child.
If the court finds a child guilty of an offence, a Probation Report or a Victim Impact Report may assist it in choosing the most appropriate sanction. Under section 96 of the Act, detention is to be a measure of last resort and Part 9 of the Act sets out a wide range of community-based sanctions. These include an order for fines, costs or compensation; an order imposed on parents, such as a parental supervision order or an order that a parent be bound over; a community sanction, such as a probation order, a day centre order, an order restricting movement or an order requiring supervision by a suitable person or mentor, and an order placing a child in detention or combining detention with supervision in the community. When exercising its jurisdiction, the Children Court may consider the child’s age and level of maturity as mitigating factors and it must ensure that the measure interferes as little as possible with the child’s education, training or employment. Furthermore, the measure should take the form most likely to maintain and promote the development of the child, and be the least restrictive form appropriate in the circumstances.
Youth Justice Practice
Having set out the legal framework, this article will next consider how the Act is being implemented with a view to comparing the law in theory with the law in practice. As highlighted above, the Act has been introduced on a phased basis between 2004, when the first provisions (notably concerning the Garda Diversion Programme) were commenced and 2007, when all of the remaining provisions, including the amendments made in 2006, were brought into effect. While the divergence between law and practice can be identified throughout the Irish youth justice system, the point is best illustrated on the following three issues: the Garda Diversion Programme, the operation of the Children Court and the use of community sanctions. Reference will also be made to parts of the Act that remain unimplemented or underused.
The Children Court
As explained above, the Children Act provides for a District Court to hear criminal charges against children in an adapted setting, distinct from adult court, and with account taken of children’s particular needs in various ways (Kilkelly, 2008). Explicit reference is made in section 96 of the Act to the right of the child to participate and understand the proceedings and obligations are placed on the Children Court at various points to ensure that this is the case. However, a major observation study of the Children Court undertaken in 2003 and 2004 found multiple problems with the operation of the Court, including several precise instances of where the relevant provisions of the Children Act were not being implemented. For instance, it concluded that most children did not participate in the proceedings against them in any meaningful way (Kilkelly, 2008: 51), a conclusion supported by another study which combined court observation with interviews with both professionals and young people (Seymour and Butler, 2008). It concluded that young people ‘generally appeared to have a peripheral level of involvement in the communication about their case in court’ and that this served to compound their ‘lack of understanding about bail compliance and, most importantly, the consequences of not complying’ (Seymour and Butler, 2008: 53). The research recommended the provision of various supports to enable young people to better understand and comply with their bail conditions, which recommendations are also instrumental to the implementation of the Act’s principles of child participation and minimizing detention.
Kilkelly’s observational study found that children spent long periods of time waiting for their cases to be heard and frequently came into contact with adult accused and others not involved in the proceedings (Kilkelly, 2008). The research found that the provisions of the Children Act designed to limit the time children spent away from education and to protect them from adult accused were not being implemented (Kilkelly, 2008: 48−50).
Studies have found delay to be a problem with the effective implementation of the Children Act. A case-file analysis concluded that repeat attendances at the Children Court were widespread for many young people, who made, on average, eight court appearances in respect of each criminal charge they faced (Carroll and Meehan, 2007: 86). The regularity with which some young people attend Children Court has led to an ill-founded perception among some professionals that they understand the process (Seymour and Butler, 2008: 45).
The problems with the implementation of these provisions can be associated with an ‘absence of guidance on the implementation of the Children Act 2001 and a failure to set standards on how implementation might be achieved’ (Kilkelly, 2008: 54). The translation of legislation into practice requires strategies to address precise aspects of the law such as the principle of detention as a last resort (Seymour and Butler, 2008: 3). These strategies and guidance have been lacking, a point which has been linked to the absence of an independent statutory body with responsibility for policy and oversight (Kilkelly, 2006b: 5).
The Irish Youth Justice Service (IYJS) is an executive office within the Department of Children and Youth Affairs, set up in December 2005 on the recommendation of the Youth Justice Review (Department of Justice, Equality and Law Reform, 2005). The first high level goal of the National Youth Justice Strategy 2008−2010 committed IYJS to provide national leadership in youth justice. It undertook to drive and lead reform in youth justice, working in close co-operation with relevant agencies, including the Courts Service (responsible for the management of the courts but not the judiciary) (Irish Youth Justice Service, 2008: 10). IYJS does not have a remit over the judiciary which is independent under the Irish Constitution. More recently, individual judges and courts have taken initiative to improve the Court’s operation in line with the Act. In particular, a Practice Direction, applicable to cases of children and young people in the Dublin Metropolitan District, was issued by the President of the District Court in January 2014. Interestingly, however, the stated purpose of the Direction is to ensure compliance with constitutional rights and international standards. 1 Compliance with the Children Act is not expressly stated as a goal (although it may well produce that effect). Moreover, aside from this important initiative, no systematic approach has been developed or adopted to support the Act’s implementation in the Children Court nationwide. As a result, it is difficult to say whether a more up-to-date audit of the Children Court would produce findings that are different from those documented a decade ago.
Community sanctions
The Children Act 2001 introduced ten community-based sanctions. These included two existing measures – the Community Service Order and the Probation Order – while the others (notably the Day Centre Order and orders providing for mentoring, placement of the child with a suitable person and restriction of movement) were specifically created by the Act (Walsh, 2005: 205). The Act retained the general Probation Order, but also introduced specific versions of that Order to ensure that the child received training, intensive supervision or residential supervision. Multiple conditions can be attached to a community sanction (Walsh, 2005: 206) and where the court intends to impose such a sanction it must explain to the child in open court and in language appropriate to the child’s level of understanding why the sanction is being imposed and any conditions attached (s 116). The Act also allows the court to order the child to pay fines, damages or costs and it includes limited sanctions that can be imposed on parents (Kilkelly, 2006a: 169). It is questionable whether these sanctions (some or all) are genuinely new given that many of them existed in some form under the Children Act 1908, with the 2001 law merely provide greater specificity in places (Kilkelly, 2006a: 172-173).
One of the areas of youth justice where data collection is particularly poor in Ireland is with respect to the sanctions imposed by the courts in children’s cases. In addition, notwithstanding that the Act which was commenced in full on 1 March 2007 formally establishing the Children Court, modernising the language (replacing ‘juvenile’ with ‘children’) and introducing a range of new sanctions, the Courts Service has continued to use outdated language in its annual reports. In 2007, for example, it referred to the District Court having ‘organised special sittings for Juvenile cases’ (Courts Service, 2007: 34-35). In 2008, the organogram of the courts made no reference to the Children Court (Courts Service, 2007: 18), and juvenile cases were reported as in 2007 (Courts Service, 2007: 32). In 2009, the Courts Service made its first reference to the Children Court when the Annual Report noted under the heading ‘Juvenile crime’ that ‘[o]ffences before the Children Court decreased by 5% from the previous year (Courts Service, 2009: 42) and this is how it has continued up to and including the latest Annual Report (Courts Service, 2012: 24).
Despite the fact that the 2001 Act introduced ten community sanctions, the Courts Service has continued to report the sanctions as before, bearing little relation to the provisions of the Act. Under the Children Act 1908, a child found guilty of an offence could be dealt with in a variety of ways including by having the charge dismissed, by ordering the offender to pay a fine, committing the offender to detention or by discharging the offender and placing him under the supervision of a probation officer (Walsh, 2005: 117). Schedule 2 to the Children Act 2001 makes it clear that these provisions – indeed the 1908 Act in its entirety – were repealed by the enactment of the Children Act 2001. Notwithstanding that the relevant provisions of the latter 2001 Act came into force in 2007, however, the Courts Service Annual Report of that year continued to record and report the sanctions as mandated by the 1908 legislation including Detention; Probation Orders, Community Service and Fines (Courts Service, 2007: 87). No reference is made to the applicable orders under the 2001 Act, like the Day Centre Order, the mentor (Family Support) Order or the Restriction on Movement Order for example. Instead, substantial numbers of charges were reported as having been ‘struck out’ or ‘taken into consideration’ (which coincides with the power of the court under section 107 of the 1908 Act to deal with the case in any other manner in which may be legally dealt with). This trend – to refer to the 1908 sanctions - continued in 2008 (Courts Service, 2008: 66) and indeed it was used most recently in the latest Annual Report, which also broke the down the sanctions according to offence category (Courts Service, 2012: 34). In contrast, the Probation Service Annual Report 2012 noted that 888 ‘(Probation) Supervision Orders involving young people’ were made (Probation Service, 2013: 10). Elsewhere court orders are broken down into the following categories (numbers in brackets): Probation Orders (35.3%); Orders for Supervision During Deferment of Penalty (38.3%); Community Service Orders (3.9%); Fully Suspended Sentence with Supervision (1.9%); Part Suspended Sentence Supervision Orders Made (6.1%) and Other Orders (14.5%). The latter category is explained as including ‘various disposals under the Children Act 2001 (as amended)’ (Probation Service, 2013: 42).
It is not possible to square this with any of the data reported by the Courts Service for that year. This problematic situation presents two possible scenarios: the first is that Children Court judges are making the orders as mandated by the Children Act 2001 – the applicable law – and this information is not being recorded accurately (because the system has not been changed to enable the modern sanctions to be recorded); the second is that Children Court judges continue to make orders as if the 1908 Act were still in force. Either is likely and indeed both may be true. The Probation Service information suggests that a similar problem exists there too, in that it is not clear whether inaccurate information is being recorded or the orders being made do not exist in this form. For information, there is no Probation (Supervision) Order in the Children Act 2001 − section 125 provides for a Probation (Residential Supervision) Order and section 126 provides for a Probation (Intensive Supervision) Order. Overall, this situation frustrates transparency and oversight over the operation of the Act in these areas.
Family conferences and restorative justice
One of the innovations of the Children Act was the introduction of the family conference as a child welfare meeting, convened by the police under the Diversion Programme (Part 4) or by the probation service (Part 8), designed to prevent the child from further offending (Walsh, 2005). The mechanism acts as a diversionary tool – diverting from court in the former context and from conviction in the latter. Under the principal provision of the 2001 Act (s 29 which applies in both instances) the conference is intended to bring together the child, his/her family and other relatives to establish why the child became involved in the offending and to discuss how those present can prevent the child from further offending. In this regard, the conference formulates an action plan to prevent further offending and additionally, if the victim is involved, the conference can mediate between the child and the victim of his/her offending serving to uphold the concerns of the victim and have due regard to his/her interests. The family conference model – introduced into Irish law for the first time in the Children Act − was based on the renowned New Zealand model, which is underpinned by three concepts: restoration not punishment; voluntary not coercive; and family not state based (Lynch, 2012a).
Despite its common origin (s 29), the conference has had slightly different fortunes in each setting. The practice has hardly taken off in the probation service where its popularity has dwindled from 28 cases in 2010 to 15 in 2012 (Probation Service, 2013: 34). In this context, the family conference is described as being based on ‘principles of restorative justice which, in essence, means healing the harm done to victims, while holding the offender accountable for his or her actions’ (Probation Service, 2013: 30). The role of the family appears insignificant − in how it is communicated by the probation service at least − compared to the role of the victim, which is centre stage.
A similar emphasis is evident in the Garda Diversion Programme too where the restorative element of the process dominates. Although it is not clear how frequently the family conference is used here, the 2009 Report of the Committee set up under the 2001 Act to monitor the Programme 2 confirmed that only five conferences had been held that year (Committee Appointed to Monitor Effectiveness of the Garda Diversion Programme, no date - a). This contrasts with the 411 restorative cautions held that year (Committee Appointed to Monitor Effectiveness of the Garda Diversion Programme, no date - a: 13). The Act − which provides for an informal and a formal caution, the latter for more serious offending − does not define the purpose of a caution although it clearly involves issuing a warning to a child about the consequences of further offending. Section 26 of the Children Act, however, provides that a victim may be invited to the formal caution, where there shall be a discussion about the child’s criminal behaviour and the child may be invited to apologize to the victim and to make financial or other reparation to him/her. The 2009 figures suggest that it is this event that is now common place in the Garda Diversion Programme and that the family conference is indeed rare. This detail – the ratio of family conferences to restorative cautions − is not available in subsequent reports, which combine the formal caution and the family conference into the category of a single ‘restorative event’. Thus, for example, the 2011 Report notes that ‘the Programme administered 903 cautions by way of restorative justice’, an increase from 378 such events in 2007 (Committee Appointed to Monitor Effectiveness of the Garda Diversion Programme, no date - c). In his introduction to the Report, the Assistant Garda Commissioner describes this as ‘indicative of the increased use of Restorative Justice and Restorative Practices’ with children in conflict with the law (Committee Appointed to Monitor Effectiveness of the Garda Diversion Programme, no date - c: 3). Figures in the Report indicate the prevalence of ‘restorative justice’ on a regional basis, without specifying whether these events represent a caution or a conference under the Act.
The Gardaí operating the Programme have found some overlap between the family conference and the formal caution, although the emphasis is firmly on the ‘restorative’ features of both. The 2009 Annual Report explains as follows:
When the victim is invited to attend a family conference in relation to a child it is referred to as a restorative conference. The restorative conference is similar to a restorative caution in many respects. The victim is given a voice and the impact of the offending behaviour is humanised. Where it differs, is that the conference makes a greater effort to engage a broader range of expertise in an attempt to challenge the child’s behaviour and to support any change that might come about as a result of the conference. (Committee Appointed to Monitor Effectiveness of the Garda Diversion Programme, no date - a: 13).
It is apparent from the narratives and case studies provided by the probation service and the Garda Síochána in their annual reports that the ‘restorative’ element of the family conference – and indeed the formal caution − is the dominant feature. Although the term ‘restorative justice’ does not appear in the Children Act, the reference to victim attendance at the family conference in section 29, and the fact that its function is to uphold the victim’s concerns, have supported the conference’s restorative purpose.
Under the Diversion Programme, the essence of the family conference appears lost if not from practice, then from how that practice is being reported. As noted above, there is no reference to ‘restorative justice’ in the Children Act and instead the possibility to include the victim has been used as the basis for turning a formal caution into what is described as a ‘restorative’ caution. As the 2011 Annual Report confirms, ‘through the use of restorative practices a victim may be invited to attend and participate in the administration of the caution… (which) allows the victim to be heard and the young person (to be) confronted with the harm caused by his/her behaviour’ (Committee Appointed to Monitor Effectiveness of the Garda Diversion Programme, no date c: 16). The Report later provides that ‘restorative justice applies to the formal caution in accordance with sections 26 and 29 of the Children Act 2001’ (Committee Appointed to Monitor Effectiveness of the Garda Diversion Programme, no date d: 15) making it clear which provision of the Act is being interpreted to incorporate restorative justice.
A very similar narrative appears in the 2012 Annual Report of the Probation Service, where family conference, under section 78 of the Act, is described as follows:
A Family Conference is based on principles of restorative justice which, in essence, means healing the harm done to victims, while holding the offender accountable for his or her actions. The aim of the Family Conference is to divert the young person who has accepted responsibility for his/her behaviour from court, conviction and custody, and from committing further offences (Probation Service, 2012: 30).
While the latter sentence is undoubtedly true, the assertion that the family conference is based on principles of restorative justice is clearly an interpretation that emphasizes two of the four subsections in subsections 29 (b) and (d) dealing with victim mediation and interests. By contrast, the other more primary function – in subsections 29(a) and (c) – examining the child’s offending, how it can be further prevented and developing an action plan to that end – is hardly mentioned. This emphasis is reflected in national policy too. According to the National Youth Justice Strategy 2008−2010, the Children Act introduced on a statutory basis ‘a comprehensive restorative justice scheme, whereby, through conferencing, a victim- and community-oriented approach requires the offender to face up to the harm he or she has caused and repair or make good the damage done’ (Irish Youth Justice Service, 2008: 13). The same strategy makes little reference to engaging and supporting the family to prevent the child from further offending and no reference at all to the family conference. In the more recent strategy – the National Youth Justice Action Plan 2014−2017 – restorative justice has been elevated to a high level goal. Goal 4 aims to ‘promote and increase the use of community measures, including restorative justice, for young people who offend’ (Minister for Justice and Equality, 2014: 21) and again there is no reference to either the probation- or the Garda- convened family conference.
The 2011 Annual Report of the Garda Diversion Programme expressed satisfaction that ‘good progress is being made in the development of restorative justice in accordance with Part 4 of the Act’ (Committee appointed to Monitor Effectiveness of the Garda Diversion Programme, no date c: 15). This reflects the expectations set by the first Garda Youth and Children Strategy 2009−2011, namely to make greater use of restorative interventions (An Garda Síochána, no date a: 12), to promote greater awareness of restorative justice among An Garda Síochána and to provide all new Juvenile Liaison officers with training in this area (An Garda Síochána, no date a: 13). The more recent Strategy 2012−2014 is more muted in its goal in this area as it commits, as an initiative, to the utilization of ‘restorative interventions where appropriate to challenge offending behaviour’ (An Garda Síochána, no date b: 4).
There is little doubt that the goal of increasing the use of restorative justice is being met, especially in the Garda Diversion Programme. The most recent Annual Report of the Programme reports an increase in the use of restorative justice to deal with referrals from 378 in 2007 to 903 in 2011 ( Committee appointed to Monitor Effectiveness of the Garda Diversion Programme no date, no date c: 16−17). Moreover, the Committee both commends the increased use of restorative justice in the Programme and recommends the extension of restorative practices to staff working with young people in the Garda Youth Diversion Projects (ad hoc youth projects run by the police) (Committee appointed to Monitor Effectiveness of the Garda Diversion Programme no date, no date c: 24). It is clear that more widespread use of restorative justice is being advocated, including to aspects of the youth justice system not based on statute.
What is significant here is that the rise of restorative justice in Irish youth justice practice appears to have been at the expense of the family conference. What appears lost is that the section 29 family conference is first and foremost a family-based intervention, where the child’s parents and other relatives are engaged to support the child to avoid further offending. It may perhaps be a restorative event if the victim or his/her representative is present, but this is not its primary purpose under the legislation as its title suggests. Like the practice in Young Person’s Probation, the family conference appears to have all but disappeared from the practice of the Garda Diversion Programme as it is reported. In its 2012 Report, the monitoring committee notes that when ‘the victim is invited to attend a family conference in relation to a child it is referred to as a restorative conference’ (Committee appointed to Monitor Effectiveness of the Garda Diversion Programme, no date c: 15). It goes on to note that ‘[t]he restorative conference is similar to a restorative caution in many respects. The victim is given a voice and the impact of the offending behaviour is humanised’ (Committee appointed to Monitor Effectiveness of the Garda Diversion Programme, no date c: 15). Again, the restorative aspect (i.e. the attendance and role of the victim) of the event is the dominant feature here and, contrary to what the Act provides, the concept of engaging the family in the response to the child’s offending – which lies at the heart of the family conference − is all but ignored. This preference for events with a restorative ethos, over those whose purpose it is to strengthen the capacity of the family, is evident from the case studies highlighted in the Reports of the Garda Diversion Programme (Committee appointed to Monitor Effectiveness of the Garda Diversion Programme no date - b, c and d).
Discussion
Law plays an important role in framing and regulating the treatment of children by professionals and practitioners like probation and police officers. Legal rules set out what form interventions with children should take and provide the framework for decision-making and the exercise of discretion. There is some discussion in the literature about the tensions, for example, between lawyers and others who work in the legal system, but these result largely from different professional perspectives (e.g. Dickens, 2008; Souhami, 2007). Non-legal professionals like medical and health professionals sometimes struggle with the implementation of the law (Cairns et al., 2011) and in areas like social work, ‘[t]here is little literature on how legal knowledge actually informs decision-making in practice’ (Braye et al., 2013: 76) although some have examined the ‘governmentality gap’ in penological scholarship concerning the relationship between government rationality and practice (McNeill et al., 2009) or the context in which services are delivered (Healy, 2009).
These situations, while challenging, are different from those described above in a number of ways. Here, what is described is not the influence of ideology or professional background on decision-making or policy priorities. Nor is it a case of where one arm of the state (i.e. Government) has failed to legislate, and so another – the courts − must step in (Carr, 2008). Rather what are identified here are instances of where youth justice practice has diverged from the legal framework or alternatively where it has taken a highly selective path through its provisions. The examples above show that in some areas Irish youth justice practice is operating without reference to the applicable legal framework – the Children Court is not adhering to the requirements set by the 2001 Act in its operation and its use of community sanctions and the interventions used by the Garda Diversion programme and the probation service highlight a strong preference for the restorative justice based approach over a family based one. The latter is more interesting, than problematic, and it clearly requires more in-depth and empirical inquiry to understand why the influence of restorative justice has taken hold in the Diversion Programme in particular. Irish youth justice practitioners are not alone in their enthusiasm for restorative justice interventions (e.g. Lynch, 2012a; Newbury, 2011), however, and there has clearly been a strong national policy imperative supporting these developments in Ireland, including a National Commission on Restorative Justice which reported in 2009 (National Commission on Restorative Justice, 2009). It is noteworthy perhaps that the police and probation services are more familiar with ‘justice’ interventions, than ‘family’ based ones; perhaps this explains the preference for restorative justice rather than family conferencing in this area.
But the non-implementation of the Act is a different problem and it raises concern even without evidence that it affects directly the nature of the experience and the potential outcomes for children in conflict with the law (Kilkelly, 2008; Seymour and Butler, 2008). The Children Act 2001 was enacted to respond to the demand for a modern youth justice system and following multiple enquiries and reviews which highlighted the needs to be addressed (Kilkelly, 2006a). Respect for the rule of law demands that youth justice practice stays within the parameters of the law; in the same way, it is essential that the law is implemented in practice.
There are a number of possible reasons why youth justice practice diverges from the law in Ireland. First, as noted at the outset, it took nearly ten years to develop and commence the Children Act 2001 – a ‘complex’ and ‘sizable’ [sic] piece of legislation (Department of Justice, Equality and Law Reform, 2005) and during this time practitioners carried out their work as they had for decades. A related point, especially to the gradual implementation of the Act, is that the introduction of the Act was not accompanied by any systematic training on the ‘new’ youth justice framework in Ireland. What training did take place was undertaken by particular agencies, like the Juvenile Liaison Officers of An Garda Síochána. The Youth Justice Review undertaken in 2005 sought to identify ‘the leadership and co-ordination mechanisms necessary for effective service delivery in this area’ (Department of Justice, Equality and Law Reform, 2005: 3). This recommended that a Youth Justice Service be established to provide leadership in this area, to develop and implement policy and to co-ordinate service delivery. Having identified that [s]pecialized service delivery and specialized training for those involved in youth justice services was a feature of all other jurisdictions examined (Department of Justice, Equality and Law Reform, 2005: 26), the Review suggested that the development and implementation of ‘continuing and professional training’ was something for which the service ‘could’ have responsibility (Department of Justice, Equality and Law Reform, 2005: 40). In addition, it was proposed that the youth justice service ‘adopt a role in supporting and facilitating the convening of conferences… through the provision of training, standard setting and awareness-raising’ (Department of Justice, Equality and Law Reform, 2005: 41). It is not clear that any of these recommendations have been implemented. With respect to the operation of the Children Court, neither judges nor lawyers received any formal training during this period (notwithstanding the explicit reference in the Act to judicial training) and what education was provided to youth justice practitioners was neither widespread nor systematic. It is hardly surprising when those who operate the law are not educated or trained on its reform that practice does not follow its implementation.
Concern was raised at an early stage that the failure to place the Youth Justice Service on a statutory footing, like its counterparts in other countries, would reduce its authority to co-ordinate services and provide leadership (Kilkelly, 2006b: 5−6). The relatively small scale of the office, which is embedded in the Department of Children and Youth Affairs, does not compare well with the large, independent statutory agencies − like the probation service, An Garda Síochána and the Child and Family Agency − which exercise other functions in youth justice. The practice of the judiciary is considered out of its remit as any involvement could be interpreted as an interference with judicial independence. These factors help to explain IYJS’s limited impact on ensuring consistency and coherence in youth justice practice.
The importance of enshrining in law the principles that guide and inform youth justice practice and decision-making is clear from the New Zealand example (Lynch, 2012b). Lynch has documented the impact of statutory principles on the practice of youth justice in New Zealand (Lynch, 2012b). Research has indicated that New Zealand’s practitioners have a high regard for and attachment to the core principles underpinning their legislation (diversion, restorative principles, non-punitive approaches) and indeed Lynch associates the ‘innovation by practitioners’ as key in this regard. In this regard, it could be said in relation to the Garda Diversion Programme’s emphasis on restorative justice that its experienced and specialist practitioners – the Juvenile Liaison Officer is a specially trained in mediation for instance – are choosing to implement the law in a way that fits best with the circumstances. Perhaps, in this way, their emphasis on restorative justice in practice is emerging from the flexibility that the law offers, rather than diverging from it.
Conclusion
Understanding how youth justice operates in practice in Ireland is difficult. Data is poor and few empirical studies aid our understanding of law and policy implementation. Moreover, as the discussion above indicates, even the state data collection systems fail to provide a detailed, up-to-date and clear accurate picture of court outcomes for children and young people. While much good work is done by individual youth justice practitioners, practice is rarely evaluated. Concern not to interfere with the independence of the judiciary arguably prevents the Irish Youth Justice Service from intervening in the essential reform of the court process and the training of specialist staff.
If the Act is to be implemented properly and practice is to cohere better with what the law requires, then a range of steps are necessary. Widespread and systematic education and training about the Act and its provisions are essential. This needs to be done both within particular agencies and departments and on an inter-agency basis. Practical workshops need to focus on how to ensure that the Children Court operates in line with the Act and engagement between professionals – lawyers, judges and court personnel – needs to identify the responsibilities of each role. A Bench Book for the Children’s Court is an eminently sensibel way to provide guidance here. Judicial training on community based sanctions is also an urgent priority, as is reform of the Court Service’s data collection systems. None of these steps is particularly problematic or challenging. But taken together, they are absolutely vital to address the outstanding areas in which the Act is not currently being implemented. It is only then that the full potential of the Children Act can be realised.
Footnotes
Funding
This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.