The Interface between Youth Justice and Child Protection In Ireland
Helen Buckley and Eoin O’Sullivan
There is a widespread acceptance that factors such as poverty, abuse and neglect, poor educational outcomes and behavioural problems are characteristic of the majority of children and young people who find themselves embroiled in either the child protection system or in the juvenile justice sector. In the light of this, recent developments in Ireland indicate an ideological acceptance that the most effective provision of services to children and young people is through proactive community-based interventions that draw on local resources and incorporate familial involvement. One of the provisions of the new and not yet fully implemented Children Act, 2001 raised the age of criminal responsibility from 7 to 12 years of age. This modification, accompanied by the implementation of diversionary programmes for young offenders, signifies a refocusing on local participatory methods to address the underlying causes of children and young people’s problems. This chapter will look at the Irish systems for child care and protection and for youth justice, with a focus on some of the challenges to the provision of a comprehensive, holistic and non-stigmatised approach to troubled children and young people.
Sociological analyses demonstrate that the development of social systems rarely occurs in a logical or systematic manner, but is rather the result of what are described as ‘radical ruptures’, global, local and political events, as well as ideological movements that have waxed and waned at different times (Skehill 2004). To that extent, the system in each society has been shaped by the combination of a number of specific and unique events, rather than a rational progression informed by international knowledge and research. For example, in Ireland, two forces combined to produce a system that was initially very reactive, taking large numbers of children into state care: namely the power and dominance of the Catholic Church, and the readiness of different governments to adopt a model of child care and protection orientated to use of residential institutions, particularly during the early and mid-twentieth century (Raftery and O’Sullivan 1999).
This approach further evolved under the legislative framework of the Children Act 1908, a relict of British rule in Ireland that regulated the provision of welfare services to children until the enactment and implementation of the Child Care Act 1991. A series of tribunals and child abuse inquiries is still dealing with the legacy of that approach, an inheritance that, unfortunately, transcended international borders following the travels of Irish religious orders to Canada, Australia and other parts of the world. As O’Sullivan (1997) has argued, the 1908 Act was largely concerned with protecting children from ‘moral danger’ and dealing with the very small number of crimes committed by children, and paid little attention to the maltreatment of children or interventions to protect them. Despite a common perception that the Irish state could do little to intervene in Irish family life due to the exalted status of the family in the Irish Constitution (1937) (e.g. the Kilkenny Incest Inquiry, 1993), the historical evidence shows that the state intervened in multiple ways and removed thousands of children from their families for reasons such as non-attendance at school (Fahey 1992).
Thus, for many years, Ireland followed a ‘social risk’ model of child care. It was only from the late 1960s that this was displaced by a more developmental model (O’Sullivan 1979). This was brought about by the discovery of the ‘deprived child’ in Ireland. Prior to this period child care intervention was viewed as ‘a means of social control rather than of individual fulfilment’. The primary facets of the emerging developmental model were a disenchantment with institutionalisation and the espousal of a wider interpretation of the basis for child care policy. Rather than focusing almost exclusively on the physical needs or moral behaviour of the child, increasingly attention was paid to emotional and psychological dimensions in promoting the welfare of children.
Thus, the discourse of the (morally) ‘depraved’ child, which had long shaped intervention by the state and those to whom it delegated child care responsibilities, shifted to a discourse that placed a premium on the notion of deprivation. In this spirit, the Child Care Act 1991, fully implemented in 1996, placed a statutory duty on Health Boards to promote the welfare of children who are not receiving adequate care and protection up to the age of 18; it enhanced the powers of the Health Boards to provide child care and family support services; enabled the courts to place children who have been assaulted, ill-treated, neglected or sexually abused or who are at risk, in the care of or under the supervision of regional Health Boards; and it established new procedures for the registration and inspection of residential centres for children. In 1987 the Status of Children Act was passed, which abolished the concept of illegitimacy. In 1996, a Children Bill was published, which aimed to repeal the provisions of the Children Act 1908 in respect of juvenile justice and introduce an amendment to the Child Care Act 1991, allowing Health Boards to detain children in their own interest. The Children Bill 1996 was, for various reasons, abandoned and replaced three years later with the Children Bill 1999, which was signed into law in 2001 as the Children Act 2001.
The triggers for policy change in the 1990s have undoubtedly been the child abuse inquiries and high-profile scandals that have challenged two of Ireland’s strongest institutions: the family and the Catholic Church. The media have played an enormous role in both raising and reflecting public concern, and much of the impetus for change emerged from publicity given to the criminal trials of perpetrators as well as some hard-hitting television documentaries about abuse in residential care. The system is now characterised by a vastly expanded network of services, more elaborate structures and increased accountability. These have, together, contributed to the new paradigm of child care and protection that has developed alongside a growing realisation of the value of family support, prevention, co-operation and inclusiveness. However, despite the aspirations underpinning the Child Care Act 1991, research, policy and inquiry reports continued to highlight the absence of preventive services and the piecemeal nature of interventions in the overall continuum of child welfare provision (Buckley 2002, 2003; Buckley, Skehill and O’Sullivan 1997; Department of Health 1993; Ferguson and O’Reilly 2001).
A parallel development, at the border between child protection and youth justice, demonstrated a ‘new’ concern of the late 1990s and early 2000s, which evoked considerable political and media reaction. This was the emergence of the alleged ‘out of control’ or ‘hard to manage’ child, who was not necessarily offending but was seen to require a special type of intensive intervention. There has also been a concern to destigmatise very troubled children who may otherwise have entered the justice system, and maintain them within the child care and protection system. As a result, a small but significant number of children whose behaviour puts their health and safety, and that of others, at risk come to the attention of the statutory services each year, requiring a particular type of response. In the absence of legislation to place children needing special care in appropriate settings, individual case law in the form of high court orders has been the main determinant of practice, resulting in an uneven and fragmented delivery of services in this sector and attracting considerable criticism (Kenny 2000). It has meant that disproportionate amounts of public money are being spent on cases that have attracted significant attention in the courts, to the detriment of preventive services (O’Sullivan 1996).
In the broader field of child care and protection, research has also indicated that a greater proportion of resources are invested and expended in responding to suspicions of child abuse rather than in the sort of support services that may prevent abuse from occurring (Buckley 2002; Department of Health 2001; Eastern Health Board/Impact 1997). There is evidence too, that even though child neglect, associated with poverty and disadvantage, continues to be the most widely identified and reported category of maltreatment, child sexual abuse still tends to be the most dominant and symbolically powerful form of child abuse in terms of its propensity to attract an assertive multidisciplinary response (Buckley 2002, 2003; Buckley et al. 1997). Despite the fact that research continues to demonstrate the link between child neglect and diminished life chances, the child care and protection system has, to date, been unable to provide the sort of integrated response or early intervention necessary to tackle the issue in a holistic way.
Integration of services
Meeting the challenge of integrating justice, health, education and social welfare services for children and young people will require strategic planning. This is particularly pertinent given the involvement of police, probation officers, teaching and Health Board staff in the operation of the legislation, and the fact that funding of services is divided between different government departments. The first and most basic hurdle will be to deal with the structural aspects of integrated service delivery. As Lupton et al. (2001) argue, provider networks are rarely context-free but are rooted in substructural influences. Government departments that deal with a range of issues will inevitably have competing priorities, and will be subject to pressure from different sectors. An example would be the announcement by the government in 2002, following an incident where two police officers were killed in a car chase involving two young people, of plans to open a juvenile prison for 14- to 16-year-olds, staffed by prison officers. This was a move that flew directly in the face of the aspirations underpinning the proposed legislation, which sought to use incarceration only as a last resort when all other alternatives had been tried. These plans were later shelved, but illustrate how political forces can create a rift between organisations allegedly pursuing the same goal.
There are few existing formal links between, or even within, protective, mental health and juvenile justice services, either at community or residential levels (Barnardo’s 2000; Children’s Legal Centre 1996). As the foregoing section has pointed out, certain recent policy initiatives have been put in place to address these difficulties, but in the meantime research demonstrates that child care and protection systems are operated differently both between and within different regions (Buckley 2002; Horwarth and Bishop 2001) and there is little evidence to demonstrate that youth justice services operate any differently. When a service is itself disjointed, it is very difficult to see how it can promote partnership and participation among those whom it is intended to serve and with whom it is intended to collaborate. An alternative model exists in New Zealand, where a single government ministry of Child, Youth and Family (CYF) deals directly with provision of child welfare, protection and youth justice services. If a similar model were applied in Ireland it would eliminate the chasm between policy-making and service delivery by creating strong connections between the front line and central government, ensure greater accountability from voluntary services, eliminate the influence of local politics and facilitate the flow of information.
The dual aspirations of the current children’s legal framework in Ireland are to enhance the welfare of children and protect them from adverse outcomes including early school leaving and involvement in crime. This is heavily dependent on a commitment to provide universalist services embedded in a broad welfare system. While this is the case in certain parts of Europe, the tendency in Ireland and the UK, and indeed most of the English-speaking world, is towards residual and selective provision where services are offered to children when harm or abuse has already occurred. The latter model tends to produce the often-identified tension between a narrow form of child protection and broad-based child welfare (Parton 1996). International research has demonstrated that in the UK, Ireland, Australia and New Zealand child welfare services for families who need help receive less attention and fewer resources than child protection services focused on child abuse, despite evidence that most children coming to the attention of services are ‘in need’ rather than abused (Department of Health (UK) 1995; Ferguson and O’Reilly 2001; Thorpe 1994). In Ireland priority is given to cases identified as ‘at risk’ partly because this is seen as a statutory duty, even though the Child Care Act 1991 obliges Health Boards to promote the welfare of children in need. The dearth of early intervention and family support services means that more children end up requiring much stronger interventions with less positive outcomes. The absence of a preventive framework, within a context of relatively defensive practice means that front-line practitioners have become accustomed to working in a very proceduralised, reactive fashion that functions well when dealing with some of the more severe manifestations of child abuse but does not lend itself to less easily defined concerns about children, such as neglect and vulnerability (Buckley 2005; Graham 1998). It is suggested that the reasons why the systems in England, North America, Canada, Australia and New Zealand are so focused on harm rather than need are the shortage of resources, combined with defensiveness and a lack of confidence prevailing in agencies, which are afraid of being open to criticism if issues like child safety or juvenile crime are seen to have been inadequately addressed (Parton 1996; Spratt 2001). The raising of the age of criminal responsibility from 7 to 12 by the Children Act 2001 means that child care and protection staff will inherit from the police an area of work for which they have little expertise or capacity at present. Hence it is over-optimistic to expect that supportive interventions to divert vulnerable youngsters from crime will be readily provided by these services.
Participation and partnership
One of the more positive developments in both the child protection and youth justice areas has been the development in Ireland of the Family Welfare Conference model. Legislation now requires that conferences involving families will be held to deal with situations where secure care is being considered, and in certain instances where offences have been committed by children. The main principle underpinning the family conference is the prioritising of a family- and community-based solution to the presenting difficulty, and the limiting of the state’s role in direct intervention.
The Children Act 2001
The remainder of the chapter aims to highlight some of the implications for children at the interface of the child protection and youth justice system through interrogating some of the tensions evident in the Children Act 2001. This Act is the culmination of over three decades of agitation, research and debate on how to reform children’s services in Ireland (Burke, Carney and Cook 1981; CARE 1978; Dail Eireann 1992; Department of Health 1980; Reformatory and Industrial Schools Systems 1970).
Both the Children Act 2001 and its predecessor the Child Care Act 1991, were claimed by their respective authors to be radical departures from past practices in the manner in which Irish society regulated those parents and young people who were deemed to have transgressed both societal and legal norms. Nevertheless, they represent a striking continuity of ideology regarding the treatment of errant children and their families. This new legislative framework results in ‘a new emphasis on the personal responsibilities of individuals, their families and their communities for their own future well-being, and upon their own obligation to take active steps to secure this’ (Rose 1996, pp. 327–328).
It is of note that in the various debates leading up to the Children Act 2001, more attention was given to the additions to the Child Care Act 1991 than the sections dealing with juvenile justice. Two issues dominated the debates: first, when was the legislation going to be implemented and, second, the structures for gaining a special care order. Many of the other amendments and changes were relatively minor. For example, existing places of detention for 16- and 17-year-olds were renamed ‘Children Detention Schools’ and remand institutions became ‘Remand Centres’. In relation to the operation of the Children Detention Schools, a minimum period of three months’ detention is now specified, regular inspections are now defined as at least every six months, and the Inspector of Children Detention Schools has been given the power to investigate the grievances of individual children.
Implementation of the Act
In light of the considerable delays in implementing the Child Care Act 1991 and the long gestation of the Children Act 2001, members of the Irish parliament (Oireachtas) were particularly concerned at what stage the legislation would be implemented. Although the government’s stated intention was to implement the legislation as soon as possible, in practice, by the end of 2004, the only sections enacted were Part 2, which deals with family welfare conferences, and Part 3, the special amendment to the Child Care Act 1991 (see below). Thus, none of the sections dealing with youth justice is currently operational.
Special care orders
The second substantive issue was in relation to Part 3, Section 16, which amends the Child Care Act 1991 in relation to special care units (secure accommodation for non-offending children) and private foster care. The changes made included a requirement that the Special Residential Board be consulted before an application to court for a special care order can be made. Also, the minimum time that a child can be detained in special care is three months, on the understanding that a special care unit should be used only as a last resort and for as short a time as possible.
Custodial vs non-custodial sanctions
The 2001 Act declared a preference for utilising non-custodial sanctions, which has been welcomed in most quarters. Two principal provisions raised the age of criminal responsibility to 12 (from 7) and stipulated that the detention of children will be utilised only as a last resort. However, the actual commitment to developing such services must be questioned in light of the Minister for Justice’s statement that the Children Act 2001, will create a requirement for a separate, secure detention centre, for up to 20 juvenile female and 90 juvenile male offenders. Funding additional detention places appears to indicate a readiness on the part of government to incarcerate more young people rather than divert them from custody. Furthermore, if non-custodial sanctions are developed we need to be wary of how they are utilised. It has been argued (Cohen 1985; Muncie 1999) that, unless carefully monitored, such measures can result in the tendency for non-custodial sanctions to become additions, rather than alternatives, to custodial sanctions.
Given the preoccupation of recent governments with incarceration (Kilcommins et al. 2004; O’Donnell and O’Sullivan 2001), and a media that sensationalises and distorts the reality of crime in Ireland (O’Connell 1999), it is difficult to see any substantial change in the ideology of the juvenile justice system in the new Act. More significantly, the recommendations of the 1998 Report of the Expert Group on the Probation and Welfare Service, which argued for a decisive shift from custodial to non-custodial sanctions, have not been implemented and the urgency evident in recruiting prison officers and Gardai (police) has not been replicated with regard to probation and welfare officers.
Children Detention Schools vs Special Care Units
Effectively, the Children Act 2001 proposes three sites for the ‘incarceration of children’. Existing Reformatory and Industrial Schools will be known as Children Detention Schools. These are aimed at those young people between 12 and 16 convicted of a criminal act, and are managed by the Department of Education. Detention Centres are for those aged between 16 and 18 convicted of a criminal act, and Special Care Units are aimed at children under 18 who have not committed an offence but are deemed to be a risk to themselves and others.
In practice, we could argue that there would be very little difference in the personal characteristics of the children committed to these places (Harris and Timms 1993) – that is, they are likely to be poor and underachieving educationally. The role of the experts charged with regulating unruly children will change to one of evaluating the child’s capacity for self-management. Failures to govern oneself appropriately will trigger different professionals depending on the degree or form of lack of self-government and the age of the child (i.e. out of control or engaged in delinquent activity). In some cases, the young person will be subject to the ‘gaze’ of all the experts as they travel through the panoply of expert interventions (Geiran et al. 1999). Most importantly, it signals that any attempt to locate offending by children within a welfarist framework is now effectively terminated.
The role of the expert is not to engage in seeking out the ‘cause’ of the offending behaviour or most certainly not to locate it in any socio-economic context, but to evaluate the site of appropriate intervention by means of audit that can best induce a successful ‘output’ (Feeley and Simon 1994). Thus, while we may welcome the fact that children under 12 will no longer be subject to the formal criminal justice system, this does not mean that children under the age of criminal responsibility will not be ‘incarcerated’, rather they may be subjected to the ‘special care’ of the Health Boards. In practice, the regime in a Special Care Unit will not be very different from that of a Children Detention School, except for one ironic difference: those children committed to Detention Schools and Places of Detention will have stronger procedural rights than those placed in Special Care Units because they will have determinate sentences, regular inspections and access to a visiting panel. Children placed in Special Care Units have, under the Children Act 2001 weaker safeguards (Child Care Regulations 2004). This leads us to the third key issue in the Act.
Parental responsibility vs state responsibility
As indicated above, over the past decade or so, the central role of parents in both regulating and protecting their children has been reinvented as the panacea to the perceived deficits in state management of these issues (Bessant and Hil 1998). Family welfare conferences, parental sanctions, community sanctions, restrictions on movement, group work programmes that challenge offending behaviour, and other family-based crime prevention projects have been developed and are incorporated in the Children Act 2001. These measures co-opt families into the child regulation and protection systems. Parents are urged to exercise more effective care and control of their children in order to prevent or curtail juvenile offending. Under the Children Act 2001 parents and guardians may be subjected to a range of ‘normalising’ activities and required to engage in practices that ensure compliance with judicial interpretations of appropriate behaviour. For example, under Section 111 (6), parents may be ordered by the courts to: undergo treatment for alcohol or other substance abuse, where facilities for such treatment are reasonably available; participate in any course that is reasonably available for the improvement of parenting skills; comply with any other instructions of the court that would in its opinion assist in preventing the child from committing further offences. This to be done by judges who, if appointed prior to 1995, do not have to undergo any training to assist them in making these decisions (Section 72).
Although this could be regarded as a recent instance of neo-liberal governance, historically the state has more or less continuously attempted to apportion responsibility for protecting and regulating children to their parents (Allen 1991; Brank and Weiss 2004). For example, When Herbert Samuel was introducing the Children Act 1908, he outlined three principles informing the section on juvenile justice, the second of which was:
that the parent of the child offender must be made to feel more responsible for the wrong-doing of his child. He cannot be allowed to neglect the upbringing of his children, and having committed the grave offence of throwing on society a child criminal, wash his hands of the consequences and escape scot free.
The basic philosophy underpinning the concept is that parents must be made responsible for the offences committed by their offspring. At the heart of this concept is the notion that the aetiology of much juvenile crime is the result of inadequate supervision and care of children, and defective socialisation into the norms of society. This interpretation of juvenile crime has been reinforced in public discourses by nostalgic yearnings for tradition, and appeals to idealistic notions of family values, community norms and consensus. For example, Mr Paddy Culligan, the former Garda Commissioner (chief of police) identified some of the causes of crime in Ireland as ‘dismantling the authority of the family; dismantling teachers’ authority; the abandonment of the religious ethic and the social pressures for both parents to go into the labour force’ (Culligan 1994).
In contrast, the assumption that the state might have some responsibilities to its vulnerable citizens has dissipated. Indeed, the Children Act 2001 appears to exempt the state, acting in loco parentis, from the sanctions that can be imposed upon parents. It becomes clear that there are discrepancies between the laws imposed on individual parents and guardians in society and those accepted by the state in its capacity as the responsible parent/guardian. In light of recent revelations regarding the experiences of children in the care of the state in Ireland, this instance of differential justice hinders the development of meaningful relationships between state agencies and the families of children ensnared in child care and protection/youth justice systems.
The legislative framework for both the protection and punishment of children has changed considerably over the past decade or so. Indeed the pace of change compared to the relative inertia of the previous 60–70 years is remarkable, which explains in part the hesitant, fragmentary and fragile nature of many services as they attempt to adapt to changing realities. The Children Act 2001 represents a combination of traditionalism and new regulatory practices to ensure compliance with this traditionalism. It also signals that responsibility for juvenile crime is located both at the level of the individual and that the individual child and parent must be empowered to exercise responsibility and become a good citizen. That social conditions and the state might have a degree of responsibility for the creation of the conditions that could have contributed to such actions in the first instance is minimised. Instead an infrastructure has been developed to ensure that children, through teaching, coaxing, cajolement, threats and ultimately banishment, conduct themselves responsibly.
The challenge of inter-agency co-operation, greater scrutiny and accountability of service delivery, active rather than passive clients and fear of litigation are but some of the elements that are reshaping the manner in which services to children are evolving. The interface between the services and agencies that manage and deliver both child welfare and youth justice services are, as a consequence of these developments, particularly fluid and unsettled. Ideologically, the dominant professional view appears to be that those children who are involved with child welfare services and those who appear before criminal justice agencies share many of the same difficulties and many of the same characteristics. Thus, the interface between the differing agencies requires greater coherence and tangible relationships, but administrative and legal boundaries remain powerful impediments to the development of such practices.
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