Children and the criminal justice system
Children are among the most vulnerable members of society. The law of the state protects children until they are deemed to be able to interact in society as adults. For this reason children are treated differently from adults by the criminal justice system. The law which deals with children found in breach of the criminal law is contained in the Children Act, 2001 which was amended by the Criminal Justice Act 2006, the Children (Amendment) Act 2015 and other acts.
The Children Act 2001 Act became law in July 2001 and since then most of the provisions of the 2001 Act and the amendments have been brought into force. The 2001 legislation is based on the philosophy that children in conflict with the law should only be detained (custody) by the state as a last resort. There are many community based measures which must be explored and exhausted before detention can be considered.
There were three Departments of the Government with the responsibility for overseeing the implementation of the Children Act, 2001. These were as follows:
The Office of the Minister for Children and Youth Affairs was set up in December 2005 to bring greater coherence to policy-making for children. While it was part of the Department of Health it also included units from the two other departments, such as the Irish Youth Justice Service.
The Irish Youth Justice Service was established in December 2005 within the Department of Justice and Equality. The Service brought together all of the State's youth justice services in one place. It provided strategic direction to the development of services and promote necessary reforms.
In June 2011, the Department of Children and Youth Affairs was established. It took over the functions of the Office of the Minister for Children and Youth Affairs. Certain units from other departments also became part of the new Department, such as the Irish Youth Justice Service.
Definition of a child in criminal law
Until the introduction of the Children Act 2001 many expressions were used to identify someone within the scope of the juvenile justice system. Expressions such as minor, juvenile, youth offender and young person were commonplace. However, the word child is now defined by Section 3 of the 2001 Act to mean a person under the age of 18 years.
The Children Act 2001 does not distinguish between a child and a young person. Any provisions in earlier Acts distinguishing different classes of children (for example, young persons, minors, child) no longer exist.
Age of criminal responsibility
The age of criminal responsibility is covered by Section 52 of the Children Act 2001 as amended by Section 129 of the Criminal Justice Act 2006. This came into effect in October 2006, raising the age of criminal responsibility from 7 years of age to 12 years of age. This means that children who have not reached the age of 12 years cannot be charged with an offence. There is an exception, however, for children aged 10 or 11 who can be charged with murder, manslaughter, rape or aggravated sexual assault. In addition, where a child under 14 years of age is charged with an offence, no further proceedings can be taken without the consent of the Director of Public Prosecutions.
Although the 2001 Act in general prohibits children under 12 years of age from being charged and convicted of a criminal offence, they do not enjoy total immunity from action being taken against them. Section 53 of the Act as amended by Section 130 of the Criminal Justice Act 2006 places an onus on the Gardai to take a child under 12 years of age to his/her parents or guardian, where they have reasonable grounds for believing that the child has committed an offence with which the child cannot be charged due to the child’s age. Where this is not possible the Gardai will arrange for the child to be taken into the custody of the Child and Family Agency (Tusla) for the area in which the child normally resides. It is possible that children under 12 years of age who commit criminal offences will be dealt with by Tusla and not the criminal justice system.
Detention of a child
Under Section 142 of the Children Act 2001, a court may impose a period of detention on a child. Children between the ages of 10 and 16 sentenced by the courts to a period of detention are sent to the Oberstown Children Detention Campus. 17-year-olds sentenced after 31 March 2017 are also sent to the Oberstown Children Detention Campus. You can find out more in our document on the detention of children.
Under Section 258 of the Children Act 2001 an offence committed by a child under the age of 18, for which they have been found guilty, can be automatically expunged from the record as if never committed, once certain conditions are met. The conditions are as follows:
- The offence was committed before the child reached the age of 18 years
- The offence is not one required to be tried by the Central Criminal Court (such as murder or rape)
- At least 3 years have elapsed since the finding of guilt and
- The child has not been dealt with for another offence in that 3-year period
If these conditions are met, they are no longer regarded under Irish law as having committed an offence. If they have received a caution or have been dealt with under the Probation of Offenders Act 1907, Section 258 also applies.
When looking for employment or applying for an educational course or insurance, they can claim to have a clean record. However, if they are travelling or emigrating to a country such as the USA or Australia, they are subject to that country’s immigration laws and may have to disclose such convictions.