Treatment of child suspects in Garda custody

For the purpose of criminal law in Ireland a child is anyone under 18 years of age. As children are deemed vulnerable due to their age and level of maturity, the law has provided special provisions which protect the personal rights of child suspects while they are being detained in Garda stations. These laws place special duties or obligations on the Gardaí in their dealings with child suspects while in the Garda station. While it is the primary role of the Gardaí to investigate crime and protect the rights of the public, these obligations also include the proper treatment of suspects who are detained in Garda stations, especially child suspects.

Part 6 of the Children Act 2001 specifically deals with the treatment of child suspects while in Garda stations. Under Section 129 of the Criminal Justice Act 2006, which amended the Children Act 2001, children under 12 years of age cannot be arrested and detained in a Garda station unless the offence is one of the following:

• Murder
• Manslaughter
• Rape
• Aggravated sexual assault

In any other situation where a Garda has reasonable grounds for believing that a child under 12 years of age has committed an offence the Garda is obliged to bring the child to the child’s parents or guardian.

At all times during the investigation of an offence where a child is a suspect, the child should be treated with dignity in an age- and capacity-appropriate manner by Gardaí.

However, Gardaí are allowed to take necessary steps to prevent any escape from custody and remain under a duty to properly investigate any alleged crime.

Separation of children from adults in Garda stations

When a child is detained in a Garda station it is the duty of the Garda in charge of the station to ensure that, as far as possible, the child is not allowed meet with or associate with adult suspects being detained in the station at the same time. Children are usually not kept in a cell unless there is no other safe or secure accommodation available.

Notice to be given to a child

When a child suspect is brought to a Garda station, it is the duty of the Garda in charge to tell the child without delay in a way that the child understands:

• The details of the crime for which they are detained
• That they are entitled to consult a solicitor and
• That their parents or guardian have been or are being notified

If the parents/guardian cannot be contacted, or if they simply refuse to attend the Garda station, then the child must be informed that he/she can nominate another adult relative or other adult to be informed. Any such person (parent, guardian or other nominated person) is obliged to attend the Garda station without delay.

Where the Garda in charge believes the child may be in need of care or protection, he must also request the Child and Family Agency to send a representative to the station as soon as possible .

Notifying the child’s solicitor

When a child who is detained has asked for a solicitor, the Garda in charge is obliged to notify that solicitor as soon as possible. If the solicitor cannot be contacted or is unwilling or unable to attend, the child must be informed and allowed to ask for another solicitor. This solicitor must then be notified by the Gardaí. If the child requests a solicitor but doesn’t know one or doesn’t name one specifically then the Garda in charge gives the child the name of a number of solicitors who are willing to attend the Garda station.

The request for a solicitor extends to the parents or guardian or other relative. All of these people are entitled to ask for a solicitor on behalf of the child.

Section 61 of the Children Act 2001 provides that a child may not be interviewed or asked to give a written statement unless in the presence of his/her parent, guardian or other nominated adult. In cases, however, where the Gardaí believe a delay in questioning a child suspect would involve:

• a risk of death or injury
• serious loss of or damage to property
• destruction of or interference with evidence or
• the escape of accomplices

then the Garda in charge of the station can authorise the questioning of the child or the taking of a written statement in the absence of a parent or guardian. This is not a common practice, however, and very serious circumstances must exist before the Garda in charge would allow it.

The Garda in charge can also remove an adult during the questioning of a child suspect or during the taking of a written statement where:

• The parent or guardian is the victim of, or has been arrested in connection with, the offence being investigated
• The Garda in charge suspects the parent or guardian of being involved in the offence or
• The Garda in charge believes the parent or guardian would be likely to obstruct the course of justice if they were present during the interview of the child or during the taking of a written statement from the child.

If the Gardaí propose to question a child in the absence of a parent or guardian, they must try and arrange for another parent, relative or other responsible person to be present during the interview.

When the Gardaí decide to charge a child with the offence for which the child is detained he/she is charged on a charge sheet. A charge sheet is a document which contains particulars of the offence, the name of the Garda who is prosecuting and the name of the person being charged. Once the child is charged with the offence, the parents or guardian present is given a copy of the charge sheet. The Garda in charge of the station also ensures that details of the time, date and place of the child’s first appearance in court are given to the parents or guardian as soon as possible. The parents or guardian must also be informed of their obligation to attend the court.

Where the child’s parents or guardian is not present in the Garda station when the child is being charged the Garda in charge must ensure that a copy of the charge sheet and details of the time, date and place of the child’s first appearance in court are given to the parents or guardian as soon as possible. They must also be informed of the name of any adult who attended the Garda station at the request of the child and the name and address of any solicitor who may have visited the child while in custody in the Garda station.

Summonses

The Gardaí may decide to summons a child to appear in court in respect of an alleged offence. (This is mostly done in less serious cases involving minor crimes). In such circumstances, the child’s parents or guardian may be named on the summons and, if they are named, they are required to attend at the sitting of the court stated in the summons.

When a decision is made to charge a child with a criminal offence, the Garda in charge of the station may direct that the child be brought before the next available sitting of the Children Court. This could involve the child remaining in the custody of the Gardaí until the following morning.

Alternatively, the Garda in charge may release the child from custody on bail to appear at a sitting of the Children Court within 30 days. This is done by requiring the child to enter into a recognisance with or without sureties to appear in court at a future date. (A recognisance is a pledge or promise made and signed by the child and/or by the parents or guardian that the child and possible the parent or guardian will appear in court on the date requested).

The recognisance might be made with a surety attached. That is, in addition to making the promise to appear in court, a sum of money is guaranteed to ensure that the child does appear in court. If the child fails to appear then the sum of money is lost and must be paid over to the State. While a surety is a promise of money, the Garda in charge is also allowed to accept a sum of money in cash from the parents or guardian to ensure that the child appears in court. This money is returned when the child’s case is finally dealt with or the judge decides to reduce or vary the terms of the bail.

Further information on the consequences of breaching bail terms is available here.