First Previous (PART 11 Special Residential Services Board) Next (PART 13 Miscellaneous)

24 2001

CHILDREN ACT, 2001

PART 12

Protection OF Children

Interpretation (Part 12).

245. —(1) In this Part “registered medical practitioner” means a person registered in the General Register of Medical Practitioners established under the Medical Practitioners Acts, 1978 to 2000.

(2) For the purposes of this Part—

(a) any person who is the parent or guardian of a child or who is legally liable to maintain a child shall be presumed to have the custody of the child, and, as between parents, one parent shall not be deemed to have ceased to have the custody of the child by reason only that he or she has deserted or does not reside with, the other parent and child, and

(b) any person to whose charge a child is committed by any person who has the custody of the child shall be presumed to have charge of the child, and

(c) any person exercising authority over or having actual control of a child shall be presumed to have care of the child.

Cruelty to children.

246. —(1) It shall be an offence for any person who has the custody, charge or care of a child wilfully to assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to affect his or her wellbeing.

(2) A person found guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 7 years or both.

(3) A person may be convicted of an offence under this section—

(a) notwithstanding the death of the child in respect of whom the offence is committed, or

(b) notwithstanding that actual suffering or injury to the health of the child, or the likelihood of such suffering or injury, was obviated by the action of another person.

(4) On the trial of any person for the murder of a child of whom the person has the custody, charge or care, the court or the jury, as the case may be, may, if satisfied that the accused is guilty of an offence under this section in respect of the child, find the accused guilty of that offence.

(5) For the purposes of this section a person shall be deemed to have neglected a child in a manner likely to cause the child unnecessary suffering or injury to his or her health or seriously to affect his or her wellbeing if the person—

(a) fails to provide adequate food, clothing, heating, medical aid or accommodation for the child, or

(b) being unable to provide such food, clothing, heating, medical aid or accommodation, fails to take steps to have it provided under the enactments relating to health, social welfare or housing.

(6) In subsection (1) the reference to a child's health or wellbeing includes a reference to the child's physical, mental or emotional health or wellbeing.

(7) For the purposes of this section ill-treatment of a child includes any frightening, bullying or threatening of the child, and “ill-treat” shall be construed accordingly.

Begging.

247. —(1) A person is guilty of an offence if he or she causes or procures a child or, having the custody, charge or care of a child, allows the child to be in any street or public place, or to make house to house visits, for the purpose of begging or receiving alms or of inducing the giving of alms (whether or not there is any pretence of singing, playing, performing, offering anything for sale or otherwise).

(2) If a person who has the custody, charge or care of a child is charged with an offence under this section, and it is proved that the child was in any street, public place or house for any purpose referred to in subsection (1), the person shall be presumed to have allowed the child to be in the street, public place or house for that purpose, unless the contrary is proved.

(3) A person found guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding—

(a) in the case of a first offence, £250, or

(b) in the case of a second or any subsequent offence, £500.

(4) In this section—

“house” includes any building occupied for residential or business purposes and any part of a building so occupied;

“public place” means any place to which the public have or are permitted to have access whether as of right or by permission and whether on payment or without payment;

“street” includes any road, bridge, lane, footway, subway, square, alley or passage, whether a thoroughfare or not, which is for the time being open to the public, and any ground or carpark adjoining and open to a street shall be treated as forming part of a street.

Allowing child to be in brothel.

248. —(1) A person is guilty of an offence if, having the custody, charge or care of a child, he or she allows the child to reside in or to frequent a brothel.

(2) A person found guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both.

Causing or encouraging sexual offence upon child.

249. —(1) A person is guilty of an offence if, having the custody, charge or care of a child, he or she causes or encourages unlawful sexual intercourse or buggery with the child or causes or encourages the seduction or prostitution of, or a sexual assault on, the child.

(2) A person found guilty of an offence under this section shall be liable on conviction on indictment to a fine not exceeding £25,000 or imprisonment for a term not exceeding 10 years or both.

(3) For the purposes of this section a person shall be deemed to have caused or encouraged—

(a) unlawful sexual intercourse or buggery with any child with whom unlawful sexual intercourse or buggery has taken place, or

(b) the seduction or prostitution of a child who has been seduced or become a prostitute or a sexual assault on a child who has been sexually assaulted,

if the person has knowingly allowed the child to consort with, or to enter or continue in the employment of, any prostitute or keeper of a brothel.

(4) In this section—

“child” means a child under 17 years of age;

“keeper of a brothel” means a person referred to in section 11 (which relates to brothel keeping) of the Criminal Law (Sexual Offences) Act, 1993 ;

“sexual assault” has the meaning assigned to it by the Criminal Law (Rape) (Amendment) Act, 1990 .

(5) References in this section to sexual intercourse shall be construed as references to carnal knowledge as defined in section 63 of the Offences against the Person Act, 1861.

Amendment of Criminal Law (Sexual Offences) Act, 1993.

250. —The Criminal Law (Sexual Offences) Act, 1993 , is hereby amended by the substitution for section 6 of the following:

“6. A person who solicits or importunes another person (whether or not for the purposes of prostitution) for the purposes of the commission of an act which would constitute an offence under section 3, 4 or 5 of this Act or section 1 or 2 of the Criminal Law Amendment Act, 1935 , shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.”.

Power to proceed in absence of child.

251. —In any proceedings for an offence under this Part, or any offence mentioned in Schedule 1, it shall not be necessary for the child in respect of whom an offence is alleged to have been committed to be brought before a court or to be present for all or any part of the proceedings unless the court, either of its own motion or at the request of any of the parties to the proceedings, is satisfied that the presence of the child is necessary for the proper disposal of the case.

Anonymity of child in court proceedings.

252. —(1) Subject to subsection (2), in relation to any proceedings for an offence against a child or where a child is a witness in any such proceedings—

(a) no report which reveals the name, address or school of the child or includes any particulars likely to lead to his or her identification, and

(b) no picture which purports to be or include a picture of the child or which is likely to lead to his or her identification,

shall be published or included in a broadcast.

(2) The court may dispense to any specified extent with the requirements of subsection (1) if it is satisfied that it is appropriate to do so in the interests of the child.

(3) Where the court dispenses with the requirements of subsection (1), the court shall explain in open court why it is satisfied it should do so.

(4) Subsections (3) to (6) of section 51 shall apply, with the necessary modifications, for the purposes of this section.

(5) Nothing in this section shall affect the law as to contempt of court.

Mode of charging offences.

253. —(1) Where a person is charged with committing any offence under this Part, or any offence mentioned in Schedule 1, in respect of two or more children, the same information or summons may charge the offence in respect of all or any of them, but the person charged shall not, if he or she is summarily convicted, be liable to a separate penalty in respect of each child except upon separate informations.

(2) The same information or summons may charge such a person—

(a) with the offences of assault, ill-treatment, neglect, abandonment or exposure together or separately, or

(b) with committing all or any of those offences in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to affect his or her wellbeing, alternatively or together,

but when those offences are charged together the person charged shall not, if he or she is summarily convicted, be liable to a separate penalty for each.

(3) Where an offence under this Part or any offence mentioned in Schedule 1 charged against any person is a continuing offence, it shall not be necessary to specify in the information, summons or indictment the date of the acts or omissions constituting the offence.

Powers of arrest without warrant, etc.

254. —(1) Where a member of the Garda Síochána reasonably suspects—

(a) that an offence under this Part or any offence mentioned in Schedule 1 has been committed or attempted, and

(b) that a person has committed any such offence or attempted to commit it,

the member may arrest the person without warrant if the member—

(i) reasonably suspects that unless the person is arrested he or she either will abscond for the purposes of evading justice or will obstruct the course of justice,

(ii) having enquired of the person, has reasonable doubts as to the person's identity or place of abode, or

(iii) has reasonable grounds for believing that there is an immediate and serious risk to the safety, health or wellbeing of the child concerned.

(2) Subsection (1) is without prejudice to any other powers exercisable by a member of the Garda Síochána.

(3) Section 68 (which empowers members of the Garda Síochána to release a child on bail in certain cases) shall apply to a child arrested under this section and section 31 of the Act of 1967 shall apply to an adult so arrested.

(4) Where a member of the Garda Síochána makes an arrest under this section and the member has reasonable grounds for believing that—

(a) there is an immediate and serious risk to the safety, health or wellbeing of the child, and

(b) it would not be sufficient for the protection of the child from such immediate and serious risk to await the making of an application for an emergency care order by a health board under section 13 of the Act of 1991,

the member may remove the child to safety and the provisions of Part III of the Act of 1991 shall then apply as if the removal were a removal under section 12 of that Act.

(5) For the purpose of arresting a person under any power conferred by this section a member of the Garda Síochána, accompanied by such other members of the Garda Síochána or such other persons as may be necessary, may enter (if need be, by force) and search any place where the person is or the member reasonably suspects him or her to be.

Power to take deposition of child.

255. —(1) Without prejudice to section 4F of the Act of 1967, where a judge of the District Court is satisfied on the evidence of a registered medical practitioner that the attendance before a court of any child, in respect of whom an offence under this Part, or any offence mentioned in Schedule 1, is alleged to have been committed, would involve serious danger to the safety, health or wellbeing of the child, the judge may take the evidence either—

(a) by way of sworn deposition, or

(b) in case the evidence is to be given through a live television link pursuant to Part III of the Criminal Evidence Act, 1992 , or section 39 of the Criminal Justice Act, 1999 , through such a link.

(2) The rules mentioned in section 4F(3) of the Act of 1967 shall apply and have effect in relation to the taking of evidence under subsection (1).

(3) A deposition taken under subsection (1) or a videorecording of evidence given by a child under paragraph (b) of that subsection shall be deemed to have been taken under section 4F of the said Act of 1967, and section 4G (admissibility of deposition or videorecording) shall apply and have effect accordingly.

(4) Notwithstanding the provisions of this section, in any criminal proceedings for an offence under this Part or any offence mentioned in Schedule 1, the evidence of a child under 14 years of age may be taken or received otherwise than on oath or affirmation if the court is satisfied that the child is capable of giving an intelligible account of events which are relevant to those proceedings.

(5) If any child whose evidence is taken as aforesaid makes a statement material in the proceedings concerned which he or she knows to be false or does not believe to be true, the child shall be guilty of an offence and on being found guilty shall be liable to be dealt with as if he or she had been guilty of perjury.

Presumption and determination of age of child victim.

256. —(1) Where in a charge or indictment for an offence under this Part or any offence mentioned in Schedule 1, except an offence under the Criminal Law Amendment Act, 1885, or the Criminal Law Amendment Act, 1935

(a) it is alleged that the person by or in respect of whom the offence was committed was a child or was under or had attained any specified age, and

(b) the person appears to the court to have been at the date of the commission of the alleged offence a child or to have been under or to have attained the specified age, as the case may be,

the person shall for the purposes of this Part be presumed, unless the contrary is proved, at that date to have been a child or to have been under or to have attained that age, as the case may be.

(2) Where a person is charged with an offence to which subsection (1) applies in respect of a person apparently under a specified age, it shall be a defence to prove that the person was of or over that age.

Clearing of court in certain cases.

257. —(1) Where in any proceedings for an offence a person who, in the opinion of the court, is a child is called as a witness, the court may exclude from the court during the taking of his or her evidence all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons (if any) as the court may in its discretion permit to remain.

(2) The powers of a court under this section shall be in addition and without prejudice to any other power of the court to hear proceedings in camera or to exclude a witness until his or her evidence is required or to Part III (which relates to evidence through a television link in certain proceedings) of the Act of 1992.

(3) The said Part III and section 22 (which relates to compellability of spouses to give evidence at instance of prosecution in certain cases) of the Act of 1992 are hereby amended by the deletion of “17 years” wherever it occurs and the substitution of “18 years”.

(4) In this section “the Act of 1992” means the Criminal Evidence Act, 1992 .