Human Rights in Ireland is delighted to welcome this guest post from Siobhan Drislane, Law Reform Commission. This post is published in Siobhan’s personal capacity and may not necessarily reflect the views of the Law Reform Commission.

One of the core concerns of the law relating to juvenile justice, and indeed child law as a whole, is that of detention. Firstly, it is a well established principle that detention of a child should only be used as a measure of last resort. This principle has been expressly identified by:

• Rule 13.1 (in the context of detention pending trial) and Rule 19 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) 1985
• Article 8 of the United Nations Convention of the Rights of the Child 1990
• Rules 1 and 2 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990.

Furthermore, all of the above provisions specify that detention of a child should last for the minimum period appropriate.

In the Irish context the Children Act 2001, per section 96(2), states that “a period of detention should be imposed only as a measure of last resort”. This statement expressly mirrors the position set out in international instruments. Additionally, section 143(1) of the 2001 Act states that a court “shall not make an order imposing a period of detention on a child unless it is satisfied that detention is the only suitable way of dealing with the child”.

In circumstances where a child is in fact detained, a considerable number of principles have been established in international law, protecting the child and his or her rights to the utmost degree. One such fundamental principle is that a child should be detained separately from adults. It is notable at this point that a child is defined by Article 1 of the UN Convention on the Rights of the Child (UNCRC) as any person under the age of 18 (unless under the law applicable to the child majority has been attained earlier). Similarly in Ireland section 3 of the Children Act 2001 states that a child is a person under the age of 18 years.

Article 37(c) of the UNCRC provides that every child deprived of liberty shall be separated from adults “unless it is considered in the child’s best interests not to do so”. The older International Covenant on Civil and Political Rights, adopted by the UN in 1966, states at Article 10(2)(b) that “accused juvenile persons shall be separated from adults”.  Rule 13.4 of the Beijing Rules 1985 provides that juveniles held in detention pending trial “shall be kept separate from adults and shall be detained in a separate institution or a separate part of an institution also holding adults”. While the UN Rules for the Protection of Children Deprived of their Liberty 1990 state at Rule 29 that “[i]n all detention facilities juveniles should be separated from adults, unless they are members of the same family”. A principle of separation in respect of children and adults in a detention setting reflects the fact that due to differences in development and capacity it is not suitable for a child to remain in an adult environment. Rather, it is necessary for a child to be detained in an environment which adequately protects and provides for his or her requirements, such as security, educational, emotional, psychological and social needs.

In Ireland the Children Act 2001 provides, at section 56, that the member in charge of a Garda Síochána station shall, as far as practicable, ensure that any child detained in the station (for example where he or is being treated as a suspect) shall not associate with an adult who is also being detained at that station, and shall not be kept in a cell unless there is no other secure accommodation available. The 2001 Act does not contain a comparable express principle that a child who is detained on remand or subsequent to trial should be detained separately from adults. Despite there not being an express acknowledgement of the principle however, section 147 of the 2001 Act has provided that children under the age of 18 shall be detained in specialised children detention units (the Act distinguishes between children under the age of 16, who will be detained in a Children Detention Schools, and children over the age of 16 and under the age of 18 who may be detained in a Children Detention Centre). Thus a child shall not be detained in an adult unit. In addition, section 156 specifies that a court shall not impose a sentence of imprisonment on a child or commit a child to prison. This is a further point of clarification that a child shall not be detained in a unit designed for the detention of adults.

In practice there are some complications within the Irish setting. Currently St Patrick’s Institution is used for the detention of 16 and 17 year old males. However, St Patrick’s is not exclusively involved in the detention of under 18’s, rather it accommodates males, both on remand and who have been sentenced, from the ages of 16 to 21. This practice clearly fails to recognise the principle that children under the age of 18 should be detained separately from adults. Furthermore, St Patrick’s Institution is under the control of the Irish Prison Service. Thus a male under the age of 18 who is detained in St Patrick’s is held in a unit which is managed by the Prison Service. By contrast, Children Detention Schools are managed by the Irish Youth Justice Service, a specialised branch of the Department of Justice, Equality and Law Reform. Therefore, children detained in detention schools are, unlike those held in St Patrick’s, not within the remit of the Prison Service.

This issue has not gone unnoticed or without criticism. Kilkelly (2006) has commented that although the Children Act 2001 establishes 18 as the age of majority, males who are aged 16 and 17 “for no reason other than their age” are subjected to the adult system two years earlier than they should be.[1] The Annual Report of the Office of the Inspector of Prisons 2008 has stated (at 12.10) that “detaining juveniles, who possess specific requirements, in a prison setting with adult prisoners militates against their rehabilitation potential. Detaining a juvenile in a prison environment cannot be in his best interests”.  While the UN Committee on the Rights of the Child in its concluding observations in respect of Ireland in 2006 expressed (at 71) that it was deeply concerned that 16 and 17 year old males were being detained in St. Patrick’s. It recommended that children under 18 should be provided with separate facilities.

In 2008 it was announced that a national detention facility to accommodate all children under the age of 18 was being planned. The plan provided that the new unit would have sufficient capacity so that minors held in St Patrick’s could be transferred there. The Irish Youth Justice Service welcomed the announcement in its 2008 Annual Report, commenting (at 15) that the decision was a major step in delivering appropriate detention facilities for young offenders in Ireland.

Initially it was estimated that the first phase of this development would be completed by 2012 (Irish Youth Justice Service Annual Report 2008, at 16; Office of the Inspector of Prisons Annual Report 2008, at 12.3) However, it now appears that this completion date has been delayed and the Irish Youth Justice Service has stated in its Spring 2010 newsletter (at 9) that it will now be mid-2013 when the first phase is ready.

Until such a time as this unit is completed and all under 18’s are removed from St Patrick’s Institution, Ireland is failing to abide by the fundamental principle and international rule that children should be detained separately from adults. As the Office of the Inspector of Prisons Annual Report 2008 noted, “every effort should be made to expedite the completion of the new unit for juveniles” (at 12.13). One can only hope that such effort is in fact realised in the very near future.

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[1] Kilkelly. Youth Justice In Ireland (Dublin: Irish Academic Press, 2006), at 235.