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CHILDREN ACT, 2001
Interpretation (Part 4).
17. —(1) In this Part—
“caution” means either a formal caution or an informal caution, as appropriate;
“conference” has the meaning assigned to it by section 29 ;
“Director” means the member of the Garda Síochána assigned by the Commissioner pursuant to section 20 ;
“facilitator” has the meaning assigned to it by section 31 (4);
“formal caution” and “informal caution” have the meanings assigned to them respectively by section 25 (4);
“Programme” has the meaning assigned to it by section 18 .
(2) A reference in this Part to the parents or guardian, or a parent or guardian, of a child shall be construed, unless the context otherwise requires, as including an adult relative of the child with whom the child is for the time being residing or who, in the opinion of the juvenile liaison officer supervising the child, is exercising, or could exercise, a beneficial influence on the child.
18. —Unless the interests of society otherwise require and subject to this Part, any child who has committed an offence and accepts responsibility for his or her criminal behaviour shall be considered for admission to a diversion programme (in this Part referred to as the Programme) having the objective set out in section 19 .
Objective of Programme.
19. —(1) The objective of the Programme is to divert from committing further offences any child who accepts responsibility for his or her criminal behaviour.
(2) The objective shall be achieved primarily by administering a caution to such a child and, where appropriate, by placing him or her under the supervision of a juvenile liaison officer and by convening a conference to be attended by the child, family members and other concerned persons.
20. —(1) The Programme shall be carried on and managed, under the general superintendence and control of the Commissioner of the Garda Síochána, by a member of the Garda Síochána not below the rank of superintendent who shall be assigned for that purpose by the Commissioner and is referred to in this Part as the Director.
(2) The Commissioner may assign duties other than those relating to the Programme to the Director during his or her period of assignment as Director.
Temporary incapacity of Director.
21. —(1) Whenever it appears to the Commissioner that the Director is, through absence, ill-health or other sufficient cause, temporarily unable to act, the Commissioner may appoint a member of the Garda Síochána not below the rank of inspector to act as the Director for such period (not exceeding the duration of the incapacity) as the Commissioner thinks proper, and references to the Director in this Part shall include the member so acting.
(2) The Director may, in writing, delegate any of the functions assigned to the Director under this Part to a member of the Garda Síochána not below the rank of inspector and may revoke any such delegation, and references to the Director in this Part shall include any member to whom any such functions are for the time being so delegated.
Admission to Programme
Report on child to Director.
22. —Where criminal behaviour by a child comes to the notice of the Garda Síochána, the member of the Garda Síochána dealing with the child for that behaviour may prepare a report in the prescribed form as soon as practicable and submit it to the Director with a statement of any action that has been taken in relation to the child and a recommendation as to any further action, including admission to the Programme, that should, in the member's opinion, be taken in the matter.
Admission to Programme.
23. —(1) A child may be admitted to the Programme if he or she—
(a) accepts responsibility for his or her criminal behaviour, having had a reasonable opportunity to consult with his or her parents or guardian and obtained any legal advice sought by or on behalf of him or her,
(b) consents to be cautioned and, where appropriate, to be supervised by a juvenile liaison officer, and
(c) is of or over the age of criminal responsibility and under 18 years of age,
but paragraph (b) shall not apply where the Director is satisfied that the failure to agree to being cautioned or supervised is attributable to undue pressure being brought to bear on the child by any person and, in that event, the child shall be deemed to have consented for the purposes of that paragraph.
(2) The Director shall be satisfied that the admission of the child to the Programme would be appropriate, in the best interests of the child and not inconsistent with the interests of society and any victim.
(3) The criminal behaviour for which the child has accepted responsibility shall not be behaviour in respect of which admission to the Programme is excluded under any regulations made pursuant to section 47 , unless the Director of Public Prosecutions directs otherwise in a notification to the Director.
(4) When the admission of a child to the Programme is being considered any views expressed by any victim in relation to the child's criminal behaviour shall be given due consideration but the consent of the victim shall not be obligatory for such admission.
(5) For the purposes of subsection (1)(c), the age for admission to the Programme shall be the age of the child on the date on which the criminal behaviour took place.
Decision to admit to Programme.
24. —(1) It shall be a function of the Director to decide whether to admit a child to the Programme and the category of caution to be administered to any child so admitted.
(2) Where the Director decides that a child should be admitted to the Programme, he or she shall direct a juvenile liaison officer to give notice in writing to the parents or guardian of the child specifying the criminal behaviour in respect of which a caution is to be administered, whether the caution is to be formal or informal and the time and place where it is to be administered and stating that the parents or guardian are obliged to attend its administration.
(3) Every such notice shall be expressed in language designed to be understood by the parents or guardian of the child and shall be available in the Irish language to a child who is from a Gaeltacht area or whose first language is Irish.
Administration of cautions
25. —(1) A caution shall be administered to every child admitted to the Programme.
(2) A formal caution shall be administered in a Garda Síochána station or, in exceptional circumstances, elsewhere by—
(a) a member of the Garda Síochána not below the rank of inspector, or
(b) a juvenile liaison officer who has been trained in mediation skills,
in the presence of the parents or guardian and, if the caution has been administered by such a member of the Garda Síochána, a juvenile liaison officer.
(3) An informal caution shall be administered by a juvenile liaison officer in a Garda Síochána station, in the child's normal place of residence or in exceptional circumstances elsewhere, in the presence of the parents of guardian of the child.
(4) In this section—
“formal caution” means a caution to be administered to a child where—
(a) no previous caution has been administered, or
(b) one or more than one informal or formal caution has been previously administered,
and the Director considers that the child's criminal behaviour was of such a nature that it could not be adequately dealt with by way of informal caution;
“informal caution” means a caution to be administered to a child where—
(a) no previous caution has been administered, or
(b) one or more than one informal caution has been previously administered,
and the Director considers that the child's criminal behaviour was not sufficiently serious to warrant a formal caution.
Presence of victim at formal caution.
26. —(1) The Director may invite any victim whose views in relation to the child's criminal behaviour have been considered pursuant to section 23 (4) to be present at the administration of a formal caution.
(2) Where any victim is so present, there shall be a discussion among those present about the child's criminal behaviour.
(3) The member of the Garda Síochána administering the formal caution may invite the child—
(a) to apologise, whether orally or in writing or both, to the victim, and
(b) where appropriate, to make financial or other reparation to him or her.
Supervision of children admitted to Programme
27. —(1) (a) Subject to paragraph (d), where a child has received a formal caution he or she shall be placed by the Director under the supervision of a juvenile liaison officer for a period of 12 months from the date of the administration of the caution.
(b) Subject to paragraph (c), where a child has received an informal caution he or she shall not be placed under the supervision of a juvenile liaison officer.
(c) Subject to paragraph (d), in exceptional circumstances, a child who has received an informal caution may be placed by the Director under the supervision of a juvenile liaison officer for a period of 6 months from the date of the administration of the caution.
(d) The periods referred to in paragraphs (a) and (c) may be varied by the Director in a manner consistent with any regulations under section 47 or pursuant to any recommendation arising from a conference.
(2) Where a child who is placed under the supervision of a juvenile liaison officer is subsequently found guilty of an offence the period of supervision shall terminate forthwith, if it has not terminated at the time of the finding of guilt.
Level of supervision.
28. —(1) The level of supervision to be applied in the case of any child shall, subject to section 42 (1), be determined by the juvenile liaison officer who is supervising the child.
(2) The juvenile liaison officer shall have regard to the following matters when making a determination under subsection (1)—
(a) the seriousness of the child's criminal behaviour,
(b) the level of support given to, and the level of control of, the child by the child's parents or guardian,
(c) the likelihood, in the opinion of the juvenile liaison officer, of the child's committing further offences, and
(d) any directions from the Director on the appropriate level of supervision in any case or in any case of a particular class.
Holding of conference in respect of child
29. —In this Part “conference”, in relation to a child, means a meeting held pursuant to this Part of persons concerned with the child's welfare, and such a conference shall have the following functions:
(a) to bring together the child in respect of whom the conference is being held, his or her parents or guardian, such other family members, relatives and other persons as appropriate and the facilitator with a view to—
(i) establishing why the child became involved in the behaviour that gave rise to his or her admission to the Programme,
(ii) discussing how the parents or guardian, family members, relatives or any other person could help to prevent the child from becoming involved in further such behaviour, and
(iii) where appropriate, reviewing the child's behaviour since his or her admission to the Programme;
(b) as appropriate and in accordance with this Part, to mediate between the child and the victim;
(c) to formulate an action plan for the child; and
(d) to uphold the concerns of the victim and have due regard to his or her interests.
Recommendation that conference be held.
30. —(1) Where a child is placed under the supervision of a juvenile liaison officer, that officer may, if he or she so thinks proper, recommend in a written report to the Director that a conference be held in respect of the child.
(2) Without prejudice to any decision of the Director in a particular case, the agreement of a child's parent or guardian shall be required for, and the views of the child shall be ascertained on, the holding of a conference.
(3) (a) The juvenile liaison officer shall ascertain the views of any victim of the child's criminal behaviour as to the possibility of a conference being held and as to whether the victim would be agreeable to attend any such conference.
(b) Where the victim is a child, the juvenile liaison officer shall have regard to his or her best interests and shall also, where practicable, ascertain whether his or her parents or guardian would be agreeable that a conference be held and would attend it.
(4) The juvenile liaison officer shall, when he or she decides to make a recommendation pursuant to subsection (1), explain to the child concerned, and to his or her parent or guardian, the procedures and functions of a conference.
Decision on holding conference.
31. —(1) The Director, on receipt of a report pursuant to section 30 from a juvenile liaison officer, shall, having regard to subsection (2) and (3), decide whether or not a conference should be held.
(2) In deciding whether a conference should be held the Director shall have regard to—
(a) the report and recommendation of the juvenile liaison officer supervising the child concerned,
(b) whether in the Director's opinion a conference would be of assistance in preventing the commission by the child of further offences,
(c) the role and responsibilities of the child's parents or guardian and relatives,
(d) the views, if any, of the victim,
(e) whether the victim would attend the conference and, where the victim is a child, whether such attendance would be in his or her best interests,
(f) the interests of the community in which the child resides, and
(g) any other matter which the Director considers to be relevant.
(3) A conference shall not be held unless the child and the child's parents or guardian indicate that they will attend it.
(4) (a) Where the Director decides that a conference should be held, he or she shall appoint a person (in this Part referred to as a “facilitator”) to convene the conference and a person to be its chairperson.
(b) The facilitator shall be either the juvenile liaison officer supervising the child or another member of the Garda Síochána.
(c) The chairperson shall be the facilitator, another member of the Garda Síochána or another person, with that other person's agreement.
(5) In any case where the Director decides that a conference should not be held he or she shall direct the juvenile liaison officer supervising the child to inform the child and the child's parent or guardian accordingly.
Persons entitled to attend conference.
32. —(1) The following persons shall be entitled to attend a conference:
(a) the child in respect of whom the conference is being held,
(b) the parents or guardian of the child and members of the child's family or relatives of the child, if the facilitator is of opinion that they or any one of them would make a positive contribution to it.
(2) A conference shall not be held unless at least one person invited by virtue of subsection (1)(b) is in attendance.
(3) The facilitator shall invite any other persons who in his or her opinion would make a positive contribution to the conference, including one or more representatives from any of the following bodies:
(a) the health board for the area in which the child normally resides,
(b) the probation and welfare service,
(c) the school attended by the child,
(d) the school attendance service,
(e) the Garda Síochána.
(4) The facilitator shall also invite to the conference any victim of the child's criminal behaviour and any relatives or friends of the victim whom the victim requests to have in attendance, unless the facilitator is of opinion that their attendance would not be in the best interests of the conference.
(5) The facilitator may invite to the conference any other person requested by the child or the child's family who in the facilitator's opinion would be of benefit to the conference and, with the agreement of the persons attending the conference and the Director, any person engaged in carrying out research on or evaluation of conferences or their equivalent inside or outside the State.
(6) If, in the course of a conference, the facilitator is of opinion that the continued presence of any person is not in the best interests of the conference or the child, the facilitator may exclude that person from further participation in the conference.
(7) A person shall not disclose confidential information obtained by him or her while participating (or as a result of having participated) as a member of a conference.
(8) A person who contravenes subsection (7) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.
(9) In this section “confidential” means that which is expressed to be confidential either as regards particular information or information of a particular class or description.
Location of conference.
33. —The decision on where to hold a conference shall be made by the facilitator after hearing the views in that regard of the persons who are to attend it.
Time limit for holding conference.
34. —(1) A conference shall be held within the period during which the child concerned is under the supervision of a juvenile liaison officer.
(2) A conference may be held on more than one occasion but, subject to section 39 (10), not outside the period referred to in subsection (1).
Notification to participants.
35. —(1) The facilitator shall take all reasonable steps to ensure that notice of the time, date and place of the conference is given to every person who is entitled or has been invited to attend and has indicated a willingness to attend or an interest in attending.
(2) Failure to notify any person entitled or invited to attend a conference or failure of any person so invited to attend it shall not of itself affect the validity of its proceedings unless the facilitator is of opinion that any such failure is likely to affect materially the outcome of the conference.
Views of those unable or unwilling to attend conference.
36. —The facilitator shall take all reasonable steps to ascertain the views, if any, of any person who has been invited to attend the conference concerned but has notified the facilitator that he or she is, for any reason, unable or unwilling to do so and shall ensure that any views so ascertained are made known at the conference.
Procedure at conference.
37. —(1) Subject to the provisions of this Part and any regulations under section 47 , a conference may regulate its procedure in such manner as it thinks fit.
(2) Subject to sections 33, 34 and 39(10), a conference may be adjourned to a time and place to be determined by it.
(3) The facilitator shall ensure, as far as practicable, that any information and advice required by the conference to carry out its functions are made available to it.
Period or level of supervision.
38. —A conference shall consider whether the period or level of supervision of the child in respect of whom the conference is being held should be varied in the light of the following matters:
(a) the circumstances of the child as respects education, training or employment,
(b) the child's leisure time activities,
(c) the child's relationship with his or her family and the local community,
(d) the child's attitude to his or her being supervised,
(e) the child's progress under the supervision,
(f) the child's attitude to his or her criminal behaviour and, in particular, to the victim of that behaviour, whether or not the victim is present at the conference, and
(g) any other matters that may be relevant in the particular case.
39. —(1) The parents or guardian of a child, when present at a conference in respect of the child (or in their absence a member of the child's family or a relative of the child), and the child may, with the assistance of the other persons present at the conference, formulate an action plan for the child.
(2) Any such action plan shall be agreed unanimously by those present at the conference, unless the disagreement of any person present is regarded by the facilitator as unreasonable, in which case that person's agreement to the plan shall not be necessary.
(3) An action plan may include provision for any one or more of the following matters:
(a) an apology, whether orally or in writing or both, by the child to any victim,
(b) financial or other reparation to any victim,
(c) participation by the child in an appropriate sporting or recreational activity,
(d) attendance of the child at a school or place of work,
(e) participation by the child in an appropriate training or educational course or a programme that does not interfere with any work or school schedule of the child,
(f) the child being at home at specified times,
(g) the child staying away from specified places or a specified person or both,
(h) taking initiatives within the child's family and community that might help to prevent the commission by the child of further offences, and
(i) any other matter that in the opinion of those present at the conference would be in the child's best interests or would make the child more aware of the consequences of his or her criminal behaviour.
(4) When the action plan and its duration have been agreed, the facilitator shall produce a written record of the plan in language that can be understood by the child.
(5) The action plan shall be signed by the child (where possible), the chairperson and one of the other persons present.
(6) The action plan shall come into operation on the date it is signed.
(7) A copy of the action plan shall be given or sent to the child by the chairperson.
(8) Those present at the conference may appoint one or more of their number to implement the action plan and monitor compliance with it.
(9) The chairperson shall, after consulting the other persons present, appoint a date, being a date after the period covered by the action plan has expired, for reconvening the conference to review compliance with the action plan.
(10) The reconvened conference shall be held not more than 6 months from the date on which the action plan was signed and may be held outside the period of the child's supervision by a juvenile liaison officer.
(11) The chairperson may reconvene the conference at an earlier date than that appointed under subsection (9) if it comes to his or her notice that the child is not complying with any of the terms of the action plan.
(12) The persons present at any conference reconvened pursuant to subsection (11) shall ascertain why the child is not complying with the action plan and shall encourage the child to comply with the plan or any amended version of it that they may agree upon.
(13) The provisions of subsections (4) to (7) shall apply to any action plan amended in accordance with subsection (12).
(14) Subject to subsection (10), a conference may be reconvened on any number of occasions to discuss any aspect of an action plan.
(15) Nothing in this section shall prevent any person or persons who implemented, and monitored compliance with, the action plan from continuing, with the agreement of the child, to implement and monitor compliance with the plan after the period covered by it has expired and it has been reviewed at a reconvened conference.
Disagreement on action plan.
40. —Failure to agree on the terms of an action plan shall not invalidate the proceedings of a conference.
Report to Director.
41. —As soon as practicable after a conference has been held the facilitator shall report to the Director on the following matters:
(a) the terms of any action plan,
(b) the matters discussed at the conference.
(c) the views of those present, and
(d) any views ascertained pursuant to section 36 ,
and shall recommend, having had regard to the views referred to in paragraphs (c) and (d), whether in his or her opinion the period and level of supervision of the child concerned should be varied and, if so, to what extent.
Decision by Director on period or level of supervision.
42. —(1) On receipt of a report submitted pursuant to section 41 , the Director shall, where appropriate, decide whether the child's period or level of supervision should be varied and, if so, to what extent.
(2) Where the Director makes a decision pursuant to subsection (1), he or she shall inform the juvenile liaison officer supervising the child accordingly and that officer shall so inform the child and the child's parent or guardian as soon as practicable.
43. —The Director shall provide such administrative services as may be necessary to enable a conference to discharge its functions.
Committee to monitor effectiveness of Programme
Review of effectiveness of Programme.
44. —(1) The Minister shall appoint a committee to monitor the effectiveness of the Programme, review all aspects of its operation and monitor the ongoing training needs of facilitators.
(2) The chairperson of the committee shall be an Assistant Commissioner of the Garda Síochána and it shall have 3 other members, of whom one shall be a chief superintendent of the Garda Síochána and the remaining two shall not be members of the Garda Síochána.
(3) The Minister shall consult with the Commissioner in relation to the appointment of members of the Garda Síochána to the committee.
(4) The committee shall have access to and may examine any documents relating to the operation of the Programme and may discuss any aspect of it with the Director and any other person concerned with its operation.
(5) The chairperson and other members of the committee shall be appointed for a term of 4 years and shall be eligible for reappointment.
(6) The committee shall make annually, by such date as the Minister may direct, a report to the Commissioner on its activities during the year and the Commissioner shall, as soon as may be, submit the report to the Minister.
(7) A copy of each such report shall be laid before each House of the Oireachtas by the Minister.
(8) Before laying a report before each House of the Oireachtas pursuant to subsection (7) the Minister may omit material from it where the omission is necessary to avoid the identification of any person.
(9) The terms and conditions of appointment of members of the committee and of any of their allowances or expenses shall be such as may be determined by the Minister with, in the case of any allowances or expenses, the consent of the Minister for Finance.
(10) Subject to the Freedom of Information Act, 1997 , a person shall not disclose confidential information obtained by him or her while serving (or as a result of having served) as a member of the committee.
(11) A person who contravenes subsection (10) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.
(12) In this section “confidential” means that which is expressed to be confidential either as regards particular information or information of a particular class or description.
Vacancies in committee.
45. —(1) Whenever a vacancy occurs in the membership of the committee appointed under section 44 for any reason, the Commissioner shall notify the Minister of the vacancy and the Minister shall, as soon as may be, appoint a person to fill the vacancy.
(2) Any person so appointed shall be appointed for the residue of the term of the person whom he or she replaces and shall be eligible for reappointment.
(3) If the vacancy occurs in relation to one of the members of the Garda Síochána on the committee, the Minister shall, after consultation with the Commissioner, appoint a member to fill the vacancy who is of the same rank as the member whom he or she replaces.
Other matters relating to the Programme
46. —(1) The Commissioner shall ensure that all members of the Garda Síochána who act as facilitators receive whatever training the Commissioner considers sufficient and appropriate for the proper and efficient discharge of their duties while they are acting in that capacity.
(2) Any powers conferred by this Part or any regulations under it on or in relation to any member of the Garda Síochána are without prejudice to any other powers which the member may have in relation to the commission or suspected commission of an offence.
(3) A failure on the part of any member of the Garda Síochána to observe any provision of this Part or of regulations under it shall not of itself render that member liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of a detained child or the admissibility in evidence of any statement made by such a child.
(4) A failure on the part of any member of the Garda Síochána to observe any provision of this Part or of regulations under it shall render the member liable to disciplinary proceedings.
Regulations (Part 4).
47. —The Minister may make regulations prescribing—
(a) the procedures to be followed when the Director is deciding—
(i) whether or not a child should be admitted to the Programme,
(ii) whether an informal or a formal caution should be administered to a child,
(iii) whether the victim should be invited to the administration of a formal caution,
(iv) whether to convene a conference in respect of any child who has been placed under supervision;
(b) the level of supervision appropriate in any case or class of case;
(c) any criminal behaviour of a serious nature in respect of which admission to the Programme shall be excluded; or
(d) any other matter or thing which is referred to in this Part as prescribed;
or for the purposes of enabling any provision of this Part to have full effect and for its due administration.
48. —In civil or criminal proceedings against a child, evidence shall not be admissible of—
(a) any acceptance by the child of responsibility for criminal behaviour in respect of which the child has been admitted to the Programme,
(b) that behaviour, or
(c) the child's involvement in the Programme for that behaviour.
Bar to proceedings.
49. —A child shall not be prosecuted for the criminal behaviour, or any related behaviour, in respect of which he or she has been admitted to the Programme.
50. —No evidence shall be admissible in any court of any information, statement or admission disclosed or made only in the course of a conference or of the contents of any report of a conference.
Protection of identity of children
51. —(1) Subject to subsection (2), no report shall be published or included in a broadcast—
(a) in relation to the admission of a child to the Programme or the proceedings at any conference relating to the child, including the contents of any action plan for the child and of the report of the conference, or
(b) which reveals the name, address or school of the child or any other information, including any picture, which is likely to lead to identification of the child.
(2) Subsection (1) does not apply to the publication or broadcast of—
(a) statistical information relating to the Programme, and
(b) the results of any bona fide research relating to it.
(3) If any matter is published or broadcast in contravention of subsection (1), each of the following persons, namely—
(a) in the case of publication of the matter in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
(b) in the case of any other such publication, the person who publishes it, and
(c) in the case of any such broadcast, any body corporate which transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, or
(ii) on conviction on indictment, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 3 years or both.
(4) (a) Where an offence under subsection (3)—
(i) has been committed by a body corporate, and
(ii) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity,
he or she as well as the body corporate shall be guilty of the offence and be liable to be proceeded against and punished accordingly.
(b) Where the affairs of a body corporate are managed by its members, paragraph (a) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.
(5) Where a person is charged with an offence under subsection (3), it shall be a defence to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect, that the publication or broadcast in question was of a matter referred to in subsection (1).
(6) In this section—
“broadcast” means the transmission, relaying or distribution by wireless telegraphy of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;
“publish” means publish to the public or a section of the public, and cognate words shall be construed accordingly.