Challenges in the Future of Restorative Youth Justice in Ireland: Minimising Intervention, Maximising Participation
| Published date | 01 August 2023 |
| DOI | http://doi.org/10.1177/14732254221122568 |
| Author | Ian D. Marder,Louise Forde |
| Date | 01 August 2023 |
| Subject Matter | Original Articles |
https://doi.org/10.1177/14732254221122568
Youth Justice
2023, Vol. 23(2) 201 –225
© The Author(s) 2022
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DOI: 10.1177/14732254221122568
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Challenges in the Future of
Restorative Youth Justice in
Ireland: Minimising Intervention,
Maximising Participation
Ian D. Marder and Louise Forde
Abstract
While restorative approaches encompass a small proportion of youth justice practices in Ireland, the
new Youth Justice Strategy (2021–2027) aims to include more victims in restorative justice, expand
family conferencing and train youth justice professionals in restorative practices. This article discusses
the legal, policy and practice contexts of these developments, considering how Ireland has defined, used
and researched restorative youth justice to date. It situates the ongoing efforts to meet victims’ and
children’s needs, and to change criminal justice cultures, in the international criminological and legal
literature on minimum intervention and child participation, analysing the possibilities and challenges
facing restorative youth justice in Ireland.
Keywords
child participation, minimum intervention, restorative justice, restorative practices, youth justice
Introduction
Youth justice in Ireland is often considered progressive – relative, at least, to more puni-
tive approaches in other developed, common law jurisdictions (Convery and Seymour,
2016). In particular, Ireland’s rate of child detention is low, and there is a substantial
emphasis on the statutory, police-led diversion scheme – the Garda Youth Diversion
Programme – that is considered strong by international standards, if not without its flaws
(Kilkelly, 2011).
Youth diversion is governed by the Children Act 2001, as amended, which sets out the
core priorities and requirements for the treatment of children in conflict with the law.
Beyond providing a statutory basis for diversion, the Children Act outlines procedural
protections during investigation and prosecution, and sentencing principles and options.
Corresponding author:
Ian D. Marder, School of Law and Criminology, Maynooth University, Room 54, New House, Maynooth W23 F2H6, Co.
Kildare, Ireland.
Email: ian.marder@mu.ie
1122568YJJ0010.1177/14732254221122568Youth JusticeMarder and Forde
research-article2022
Original Article
202 Youth Justice 23(2)
It provides that children are entitled to the same rights as adults before the law, criminal
proceedings should not be used solely for care and protection and penalties should pro-
mote the child’s development and cause as little interference as possible with their legiti-
mate activities. These principles seek to ensure that Ireland’s generally ‘justice’-based
youth justice system is not excessively punitive, and that it accounts for children’s indi-
vidual circumstances. As discussed elsewhere, this Act also introduced police- and proba-
tion-led restorative processes into law for the first time (Forde, 2018; Marder, 2019). The
term ‘restorative’, however, is notably absent from the Act, which provides that police
specialists (Juvenile Liaison Officers, or JLOs) can invite victims to youth cautions (s.26)
or organise ‘conferences’ (with or without victims present) alongside a caution (s.29). The
Children Court can also direct that a (probation-led) ‘family conference’ (s.78) develop an
action plan as an alternative to traditional court proceedings.
In recent years, criminal justice in Ireland has been in a state of flux, from which youth
justice has not been immune. In Hamilton’s (2019: 15) assessment of Irish criminal justice
culture, ‘we are living through a time of unprecedented change for the Irish criminal jus-
tice system’, with growing pressure on policymakers and practitioners to engage with
research(ers) and evidence and ensure convergence with European standards and norms
(Hamilton, 2022). This contextualises ongoing work to develop restorative justice in
Ireland (Department of Justice, 2021a; Government of Ireland, 2020) since a new Council
of Europe (2018) Recommendation on restorative justice stipulated that all those harmed
by, and responsible for, crime should be enabled to decide whether to participate in such
a process.
This article is concerned specifically with the implications of these developments for
children in conflict with the law, and particularly with allusions to restorative justice and
restorative practices in Ireland’s Youth Justice Strategy (2021–2027) (Department of
Justice, 2021b). The Strategy’s guiding principles reflect Ireland’s main international
obligations under the United Nations Convention on the Rights of the Child (UNCRC),
including commitments to ensure ‘respect for [children’s] rights, in a way that strengthens
their capacity for positive participation in community life [and] reinforces respect for the
human rights and freedoms of others’ (p. 4). Striking a further progressive tone, it says
that ‘young people in conflict with the law will be treated as children first’ (p. 7). Most
importantly for the present discussion, the Strategy supports the greater use of restorative
processes involving children and their victims and/or families and wider practitioner
training in restorative practices to support ‘child/family centred’ (p. 23) ways of
working.
The implications of these developments depend on how the term ‘restorative’ is inter-
preted and applied. On one hand, using restorative justice and restorative practices with
children in conflict with the law (or ‘restorative youth justice’) can support diversion,
enable child participation and build beneficial forms of social capital (Chapman et al.,
2015). On the other hand, research suggests that this can perpetuate the inequitable and
excessive qualities of youth justice, even consolidating professionals’ power over vulner-
able, criminalised children (Suzuki and Wood, 2018). Restorative practices likewise can
be critiqued as nebulous – or, at least, as complex to operationalise and to evaluate (Brown,
2021). Given these concepts’ centrality to reform efforts in Ireland and beyond, we must
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