Youth Courts and Children's Rights: The Irish Experience

AuthorUrsula Kilkelly
Published date01 April 2008
Date01 April 2008
DOIhttp://doi.org/10.1177/1473225407087041
Subject MatterArticles
ARTICLE
Copyright © 2008 The National Association for Youth Justice
Published by SAGE Publications (Los Angeles, London, New Delhi and Singapore)
www.sagepublications.com
ISSN 1473–2254, Vol 8(1): 39–56
DOI: 10.1177/1473225407087041
Youth Courts and Children’s Rights:
The Irish Experience
Ursula Kilkelly
Correspondence: Dr Ursula Kilkelly, Faculty of Law, University College Cork, Ireland.
Email: u.kilkelly@ucc.ie
Abstract
The Irish youth justice system is currently undergoing substantial reform. When complete,
the system will divert most f‌i rst-time young offenders away from the courts via the Garda
(police) Diversion Programme. Those who go to court may be offered the opportunity of a
family conference directed by either the Health Service Executive or the Probation Service as
an alternative to conviction, or if convicted, may receive one of a wide range of community
sanctions designed to present an alternative to detention. However, reform of the Children
Court, which is at the heart of the Irish system, is not part of this process despite diff‌i culties
with its operation and questions about the extent to which it meets international children’s
rights standards. This article highlights the problems faced by the Court and explains why, in
addition to the reforms above, it is vital that the Court be overhauled both to address its
effectiveness as the central agency in the youth justice system, but also to ensure that the rights
of the young people before it are fully vindicated.
Keywords: children’s rights, international standards, participation, youth court
Introduction
Reform of the Irish youth justice system has been underway since the Children Act was
passed in 2001. As the replacement for the long outdated Children Act 1908, the 2001
Act is an attempt to put in place a modern system for the treatment of children in
conf‌l ict with the law (def‌i ned as those under 18 years). Its key objective is to ensure
that children who commit criminal offences are diverted away from the courts and
from detention and to this end it puts the well-established police diversion scheme (The
Garda Diversion Programme) on a statutory basis, it introduces the family conference
as a means of empowering the offender and his/her family to prevent further offend-
ing, and it creates ten community sanctions to ensure that detention is a measure of
last resort for children. But continuing problems and the slow implementation of the
Act resulted in its review in 2005 (Department of Justice, Equality and Law Reform,
2005) the principal recommendation of which was that a new body be established to
co-ordinate youth justice services, develop a youth justice strategy and establish admin-
istrative structures at central and local level to implement the Children Act. To this end,
40 Youth Justice 8(1)
the Irish Youth Justice Service was established within the Department of Justice, Equal-
ity and Law Reform in December 2005, and amendments to the Children Act 2001
were passed in 2006 to facilitate its further implementation (Kilkelly, 2006a, 2007).
These changes notwithstanding, the Children Court remains the central and most
important institution in the Irish youth justice system. As the court of f‌i rst instance, it is
the body before which all young people who are prosecuted appear, and beyond its role
in the sentencing of children for minor offences (in more serious cases the young person
is prosecuted before the Circuit Criminal Court or the Central Criminal Court) this
means that it has potential to inf‌l uence the future behaviour of young people, and to
ensure, not least through its treatment of them, that their rights are protected.
Over the years, the Children Court has been identif‌i ed with the prevailing problems
in the youth justice system, notably the apparent failure to address offending behaviour.
General concerns about the inadequate state of youth justice are often linked to the
Court’s operation, if not also highlighted by the Court itself (McPhillips, 2005; Carroll
and Meehan, 2007). Recommendations for reform of the Court were made as early as
1980 when the Task Force on Child Care Services highlighted the need for judicial
training, in camera hearings and procedural modif‌i cations to reduce the formality of
proceedings and enable children and parents to be more positively involved as essential
to the success of the wider reform of youth justice. Despite this, neither the Children
Act 2001 nor the Youth Justice Review 2005 made provision for any substantial changes
to the operation of the Children Court.
Against this backdrop, this article considers the inadequacies of the current Children
Court system with reference to both domestic law and international children’s rights
standards. This is done with reference to primary research undertaken by the author
who observed the Children Court in operation in 2003 and 2004 (Kilkelly, 2005), and
an analysis of Children Court case-f‌i les also from 2004 (Carroll and Meehan, 2007).
Combined, this research highlights why the Court is in need of reform and why, until
this reform is undertaken, its potential to address offending behaviour, to vindicate
the rights of children and to ensure the success of wider youth justice reforms will
remain unfulf‌i lled.
The Youth Court: International Standards and Trends
United Nations standards
Youth courts have been in place for over a century in some jurisdictions, and it is well
established that juveniles have the same due process rights as adults (Tanenhaus, 2004).
At the same time, relatively little has been written about the type of institution the
youth court should be, how it should differ from an adult court, and what measures
should be taken to ensure that children enjoy their fair trial rights.
In 1985, the United Nations adopted the Standard Minimum Rules on the Adminis-
tration of Juvenile Justice (the Beijing Rules), which set out the broad principles which
should govern juvenile justice. In addition to recognizing that the juvenile justice system
must emphasize the ‘well-being of the juvenile’ and ensure that ‘any reaction to juvenile
offenders shall always be in proportion to the circumstances of both the offenders and

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