4,228 entries for Historical Context

The memo acknowledged the reservations of the Department of Education in his regard stating: The Department of Education has been consulted and has expressed serious reservations regarding the proposed transfer of responsibility in respect of special schools. It regards these as establishments the prime purpose of which is educational and suggests that this purpose is reflected in the preponderance of the activity in the institutions arising from their programmes of rehabilitation and reform. It considers that any measures which would have the effect of removing these schools from the mainstream of education would not be in the interests of the children. In the Department’s view, the care elements involved are being and can continue to be adequately catered for through the format of management and services available and through arrangements for consultation and co-ordination with care authorities.314

Having duly acknowledged these reservations, the memo nonetheless argued: the Minister for Health considers that unification of responsibility is particularly desirable in the area of residential care. In accordance with the general tenor of the Task Force Report, the special schools should be seen as being mainly concerned with child care rather than with education at present. There is no doubt that education must be a major element no matter which Minister is responsible for these centres, but the major factor in deciding on responsibility for the schools must be the fact that they cater for those children who are probably the most seriously deprived, both emotionally and socially and should, therefore, be the concern of the Department which will have the main responsibility in relation to the general welfare of deprived children. It is hardly necessary to point out that if one Minister has authority for all centres for deprived children, the organization, operation and effectiveness of the system as a whole will be facilitated. Such a transfer would also be desirable for the purposes of facilitating continuity of services to the child and its family, with particular reference to the input of social work in relation to the child while in the centre and the provision of continuing care which would be required after discharge.315

In relation to St Joseph’s Special School in Clonmel the memo stated: The Department is not seeking a transfer of responsibility for St. Joseph’s Special School, Clonmel but he considers that discussions might be held between his Department, the Department of Education and the authorities of the School before a final decision is taken regarding its future roles. The Minister now seeks government approval to the transfer of special schools to the Department of Health, as is provided for in the Scheme of the Bill.316

On the issue of juvenile justice, the memo outlines the broad principles that informed thinking on the issue, claiming that the proposed new system contained ‘elements of both the main Task Force Report and the Supplementary Report’. The memo went on to state: the proposed system is based on the principle that arrangements made for children must be consistent with their dependent status, the principle that intervention in a child’s life should be limited to what is necessary to ensure that the child’s interests or the interests of others and the principle that children who need special help should also, as far as possible, have the same experience of growing up as is normal in their society (all of which principles were implicit in both the Main Report and the Supplementary Report).317

The broad scheme for a new juvenile justice system was as follows: (a)If the state is to intervene in the life of a child on a compulsory basis, and interfere with the responsibility of his parent or guardian it should usually be with a view to helping the child; this intervention should be by order of a court to be made following care proceedings. (b)Care proceedings should be conducted by a newly constituted juvenile court, consisting of a specially trained district justice and two lay assessors. (c)The age of criminal responsibility should be raised to 12; persons under that age should not be subject to the criminal law i.e. they should not be prosecuted. (d)A new type of control proceedings should be instituted, under which children under 12 who are a threat to the public can be made the subject of a control order; control proceedings should be conducted before the juvenile court, in separate hearings. (e)In regard to children under 12 the Garda Síochána should be responsible for initiating Control Proceedings. (f)In the case of a child between 12 and 15, prosecution should continue to be an option, although no child in this age range should be convicted unless the justice is satisfied as to his criminal capacity. (g)Young persons between 15 and 17 years should be dealt with separately under the criminal law, as they are at present, with additional provisions to take account of their youth.318

On the issue of the age of criminal responsibility, the Bill proposed the age be raised from 7 to 12 on the basis that: the Minister considers that this represents a more reasonable level at which to draw the line between children who might be regarded as lacking in understanding of the criminality of their acts and those who might be regarded as having reached a sufficient degree of maturity to understand substantially the nature of their wrong doing. The Minister accepts that in view of the present extent of juvenile delinquency any extension in age may provoke a certain amount of controversy. He feels, however, that public indignation at the extent of crime should not be allowed to prevent a non-retributive approach to troublesome children whose background in many instances will be one of considerable psychological or physical deprivation.319

For those children under the proposed age of criminal responsibility, the legislation included provision for a new form of ‘control proceedings’ which will enable the State to intervene in the lives of such children, with the express purpose of affording necessary protection to others. In such extreme cases it would have to be a serious offence if committed by an adult, or that the child had committed an act or acts which caused (or were likely to cause) serious loss or damage to persons or property. The court would be empowered to make an order to ensure such minimal restraint or control as was necessary for the protection of the community.’320

The background to the drafting of the Children Bill 1982 by the Department of Health lay in the Government decision of October 1974 to transfer the ‘main responsibility’ for childcare services to the Department of Health. In a memo to the Minister for Health in 1987, the background was outlined. Having outlined the recommendations of the Task Force on Child Care Services, the memo observed that: The question of who was to take over responsibility for the new juvenile justice legislation was not settled at that time nor has it been since. This Department was prepared to co-ordinate the preparation of a comprehensive Children Bill with the juvenile justice aspects being drafted by the Department of Justice. The Department of Justice, on the other hand, held that it was up to the Department of Health to formulate the proposed bill in its entirety. Justice offered to comment on the proposals once they had been prepared but would take no part in their preparation. Faced with this attitude and under strong political pressure, the Department of Health attempted to prepare the outline of a comprehensive Children Bill, which would include provisions on the treatment of juvenile offenders, reform of the Children’s Courts and the age of criminal responsibility. Without the assistance and expertise of the Department of Justice it proved an almost impossible task. However, just before the change in Government in December 1982, the Minister (Dr. Woods) directed the Department to circulate for comment to the other Departments involved the (as yet incomplete) Heads of a Children Bill.321

With the change in Government, in February 1983, the new Minister directed that the heads of Bill were to be reviewed, particularly those aspects relating to juvenile justice. At this stage the Department of Justice had submitted its observations on the Bill, particularly in relation to juvenile justice, which ran to 38 pages and ‘identified a number of serious flaws and weaknesses in the proposals’. The Department of Justice firstly observed: In the context of juvenile justice, the Bill apparently provides for a ‘welfare model’. In this model juvenile justice forms part of a more encompassing child care and protection system and it is interwoven with other more general services which the Heads would make available to children and young people. It also involves a high level of interference by the State’s Social Services. Furthermore, it emphasises in the first place the needs of the child irrespective of the act committed or its seriousness; much attention is given to social and psychological conditions surrounding the offence and decisions are aimed at the individual needs and interests of the juvenile. What is generally accepted as the main alternative to this ‘welfare model’ in this area, namely, the ‘justice model’ emphasises the committed act, the responsibility of the juvenile himself, the punishment related to the offence and the guarantees of due process. The Minister for Justice, in responding to the proposals from the Department of Health, is not advocating one or other of those models as being preferable to the other but, he considers that it would be useful for Government to be aware of the international experiences in this area. As far as the Minister for Justice is aware, it has been the experience in Europe – particularly in Holland and in Britain – that where ‘welfare models’ of criminal justice have been operating the countries concerned are reverting in varying degrees to the ‘justice model’.322

On the issue of Departmental responsibility for certain children, the Department of Justice noted that the memorandum: stated, ‘under the new legislation, it is proposed that committal to prison should not be an option in dealing with young persons (15-17 years old) although committals to other forms of institutional care will be possible’. The Minister would be concerned about where members of this age group are to be detained when charged or convicted of what in the case of an adult at any rate would be a criminal offence. The cumulative effect of the Heads seem to be that (a) ‘unruly’ children or young persons (12 to 17 years) on remand or convicted of particular serious offences and (b) convicted persons between the ages of 15 and 17 should be detained in such institutions (other than prisons) as may be ‘designated’ or ‘directed’ by the Minister for Justice. The Minister is assuming that the words ‘designate’ and ‘direct’ is intended to mean that the Minister for Justice should have responsibility for the actual day-to-day running of the institutions. The Minister for Justice, however, has the strongest objection (now that a fundamental revision of the whole area of juvenile justice is being undertaken) to the proposal that young person under 17 should be committed to institutions under his control. The Government will be aware of the outcry from certain groups (some of whose views are reflected in the Task Force Report) when the Government, in 1978, decided that 12 to 16 year old boys should be held in Loughan House under the control of the Department of Justice. At that time the Minister for Justice agreed to make Loughan House available for that age group as a temporary arrangement until such time as the Department of Education would have the secure school at Lusk (Trinity House) ready. Trinity House is now almost ready and on transfer of the boys to it from Loughan House the latter will revert to general prison usage – for which, it is badly needed -around April, 1983. In the circumstances it is strange, to say the least, that a Bill whose guiding concern is for the care and welfare of the child should now be providing that children as young as 12 years of age should be committed to institutions (presumably similar to Loughan House) under the control of the Minister for Justice. Indeed, over 40 years ago – in the Children Act, 1941 – the age at which a youthful offender could be committed to a certified reformatory school under the control of the Minister for Education was raised from sixteen years to 17 years.323

The Department of Justice then outlined: In the Minister’s view, the appropriate age at which youthful offenders should be committed to institutions under his control should be 17 years. However, if the Government consider that 17 years is too high in this context, the Minister would hope that, at least, there would be general acceptance that it would be unthinkable that a new ‘Children’s Charter’ should provide for the detention of anybody under 16 years of age in institutions under the control of the Minister for Justice. The proposal whereby a child or young person of unruly character could be committed to such an institution should, in the Minister’s view, be rejected. Apart from the objections already stated which apply to all children and young persons, such a provision could easily develop into a means whereby agencies who would hold primary responsibility for the care of children and young people could opt out of their responsibility to these young people where they proved difficult to control. To summarise on this point, it is the Minister’s view that nobody below 17 years should be detained in institutions under his control but that if the Government considers 17 too high, he would urge that the age should not be set as less than 16 years. Furthermore, he is of the view that persons under 17 or 16 years (as may be decided) should not be committed to such institutions on the ground that they are unruly. They should be detained in institutions run by caring agencies operating under the control of the Minister for Health or the Minister for Education and those agencies should be required to receive them and provide proper custodial facilities for them.324

When the Department of Justice was contacted by the Department of Health in relation to redrafting the section on juvenile justice, the Minister for Justice replied that: his Department would continue to give whatever assistance was possible by way of commenting on texts and by participating at occasional meetings but made it clear that Justice was not prepared to take over the preparation of the juvenile justice aspects of the bill.325

The Department of Health, however, were of the view, that: The preparation of new juvenile justice legislation is essentially a matter of refining and modifying criminal law and procedure as it affects children. Changes in the criminal law are entirely a matter for the Minister for Justice; similarly, changes in the role and procedures of the Gardaí and the Courts in relation to children are unlikely to take place without the active support and involvement of the Minister for Justice and his Department. Having examined the matter over the last few months I am convinced that the input which this Department is skilled to make in reforming the juvenile justice system and the role which health boards could be expected to play in any new system is limited to: — (i)ensuring that the correct balance is maintained in the legislation between the protection of the public and the provision of care, support and rehabilitation to the young offender; (ii)identifying children at risk of getting into trouble with the law and making available services and facilities which would seek to stem the drift towards crime and vandalism; (iii)extending the range of options available to the courts by equipping health boards to provide counselling and remedial treatment programmes for young offenders who do not require custodial care.326

At this stage, the Department of Health concluded that any attempt to introduce a comprehensive bill to replace the Children Act 1908 and the various Health Acts would face considerable difficulties and instead it was agreed that separate legislation would deal with the core substantive areas of child welfare and protection, adoption and juvenile justice. This series of reforms were agreed by Government and in 1984 a formal announcement of this decision was outlined by the Government in its national plan, Building on Reality, 1985-1987. Building on Reality stated: It is intended to introduce three Bills in relation to the care and protection of children. Much of the existing legislation in this area is now outdated and not sufficiently in keeping with current concepts in regard to the well-being of the child. The first of the new Bills is at an advanced stage of preparation and will provide a wide range of new measures as well as considerable up-dating of the Children Act, 1908, which is the basis of much of the existing law in regard to child care. This Bill will impose a clear obligation on health boards to promote the care and protection of children. It will inter alia; provide for the registration and control of day care services for children; make amendments to the present provision in relation to foster care and give greater protection to children; provide for the registration and supervision of children’s homes; provide better and more flexible arrangements for taking children into care; include a range of new provisions aimed at protecting the child in regard to such matters as volatile substances; and provide protection for children in relation to pornography. The emphasis in the Bill will be on keeping the child in a family setting rather than in residential care....The Government is also committed to bringing forward revised measures in regard to juvenile justice. This will be the subject of a third Bill which is under examination at the moment.327

However, the Department of Health noted that: The plan gave no indication as to which Minister or Department would prepare the third Bill. The Department understood from the Minister that it would be done by Justice while Justice apparently believed that Health were to do it. In the event, neither Department has taken any initiatives in relation to the juvenile justice bill. There the matter rests. There have been no further contacts between the two Departments in the matter, apart from occasional skirmishes about responsibility for answering Parliamentary Questions on the subject. The Department of Justice have availed of every possible opportunity to promote the idea that this Department is responsible for new juvenile justice legislation. Their repeated attempts to have inserted in the Child Care Bill a provision prohibiting the hanging of persons under 18 is a typical example of this campaign.