Children (Amendment) Act 2015

PART 1 Preliminary and General

1. Short title, collective citation, construction and commencement

1. (1) This Act may be cited as the Children (Amendment) Act 2015.

(2) The Children Acts 2001 to 2011 and Parts 1 and 2 of this Act may be cited together as the Children Acts 2001 to 2015 and shall be construed together as one Act.

(3) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

2. Definitions

2. In this Act—

“Act of 1960” means the Criminal Justice Act 1960;

“Act of 2006” means the Criminal Justice Act 2006;

“Minister” means the Minister for Children and Youth Affairs;

“Principal Act” means the Children Act 2001;

“Saint Patrick’s Institution” has the same meaning as it has in the Act of 1960.

3. Repeals and transitional arrangements relating to repeals

3. (1) The following provisions of the Principal Act are repealed:

(a) subsection (12) of section 88 (amended by section 135 of the Act of 2006);

(b) subsection (13) of section 88 (amended by section 135 of the Act of 2006);

(c) section 156A (inserted by section 143 of the Act of 2006).

(2) Section 144 of the Act of 2006 is repealed.

(3) The repeal of subsection (12) of section 88 of the Principal Act by subsection (1)(a) shall not affect the lawfulness of the remand of persons remanded to Saint Patrick’s Institution pursuant to the said subsection (12) of section 88 before the date of commencement of subsection (1)(a).

(4) Any person under the age of 18 years who, immediately before the commencement of subsection (1)(a), was remanded to Saint Patrick’s Institution by virtue of an order made or warrant issued by a court under section 88(12) of the Principal Act that was in force immediately before that commencement but which had not been executed before that commencement, shall be remanded to a remand centre specified in an order under subsection (11).

(5) A reference in an order made or warrant issued by a court referred to in subsection (4) to Saint Patrick’s Institution shall, on and after the date of commencement of subsection (1)(a), be construed as a reference to the remand centre specified by order under subsection (11), and the order made or warrant issued by the court shall have effect accordingly.

(6) The repeal of section 156A of the Principal Act by subsection (1)(c) shall not affect the lawfulness of the detention of persons detained in Saint Patrick’s Institution, or a place of detention, as the case may be, pursuant to the said section 156A before the date of commencement of subsection (1)(c).

(7) Any person under the age of 18 years who, immediately before the commencement of subsection (1)(c), was to be detained in Saint Patrick’s Institution, or a place of detention, as the case may be, by virtue of an order made or warrant issued by a court under section 156A of the Principal Act that was in force immediately before that commencement but which had not been executed before that commencement, shall be detained in a children detention school specified in an order under subsection (11).

(8) A reference in an order made or warrant issued by a court referred to in subsection (7) to Saint Patrick’s Institution or a place of detention shall, on and after the date of commencement of subsection (1)(c), be construed as a reference to the children detention school specified by order under subsection (11), and the order made or warrant issued by the court shall have effect accordingly.

(9) Notwithstanding the repeal of section 156A by subsection (1)(c), a person under the age of 18 years who is serving a period of detention in Saint Patrick’s Institution or a place of detention may, at any time on and after the date of such repeal, be transferred by the Minister for Justice and Equality, with the consent of the Minister, from Saint Patrick’s Institution or a place of detention, as the case may be, to a children detention school specified in an order under subsection (11).

(10) Nothing in this section shall affect the lawfulness and the period of the remand or detention, as the case may be, of a person where the person is, pursuant to this section, remanded to a remand centre or detained, including on foot of a transfer under subsection (9), in a children detention school, as the case may be, specified by order under subsection (11) .

(11) The Minister shall—

(a) on or before the date of commencement of subsection (1)(a), specify by order a remand centre for the purposes of subsections (4) and (5), and

(b) on or before the date of commencement of subsection (1)(c), specify by order a children detention school for the purposes of subsections (7), (8) and (9).

(12) An order under this section shall be laid by the Minister before each House of the Oireachtas as soon as may be after it is made.

(13) In this section “place of detention” means a place of detention provided under section 2 of the Prisons Act 1970.

PART 2 Amendment of Principal Act

4. Amendment of section 3 of Principal Act

4. Section 3 of the Principal Act is amended, in subsection (1) —

(a) in the definition of “children detention school”—

(i) by the substitution of “section 159,” for “section 159, or” in paragraph (a),

(ii) by the substitution of the following paragraph for paragraph (b):

“(b) a place, school, premises or building designated as a children detention school pursuant to section 160, or”,

and

(iii) by the insertion of the following paragraph after paragraph (b):

“(c) an amalgamated school within the meaning of section 163A (inserted by section 14 of the Children (Amendment) Act 2015);”,

(b) by the substitution of the following definition for the definition of “Minister”:

“ ‘Minister’ when used without qualification means the Minister for Justice and Equality, other than in subsections (4), (6), (9) and (11) of section 88, section 88A, section 88B and Part 10 where it means the Minister for Children and Youth Affairs;”,

(c) by the substitution of the following definition for the definition of “prescribed”:

“ ‘prescribed’ means prescribed by regulations made by the Minister or the Minister for Children and Youth Affairs, as appropriate;”,

and

(d) by the deletion of the definition of “Saint Patrick’s Institution”.

5. Amendment of section 88 of Principal Act

5. Section 88 of the Principal Act is amended—

(a) in subsection (4), by the substitution of “part or all of a children detention school, which in the Minister’s opinion is suitable for the custody of children who are remanded under this section (referred to in this Act as a remand centre ‘situated in’ a children detention school)” for “part of a children detention school, which in the Minister’s opinion is suitable for the custody of children who are remanded under this section”,

(b) in subsection (8), by the substitution of “situated in” for “part of”,

(c) in subsection (9), by the substitution of “situated in” for “part of”, and

(d) by the insertion of the following subsection after subsection (10):

“(10A) Where the Court remands a child to a remand centre under subsection (2), the lawfulness of the remand and the period of the remand shall not be affected should the child attain the age of 18 years during the period of the remand in question, and in such a case this Act shall apply to the person during the remainder of that period of the remand as it applies to a child on remand.”.

6. Provisions regarding children on remand

6. The Principal Act is amended by the insertion of the following sections after section 88:

“Transfer of children on remand

88A. (1) The Minister for Children and Youth Affairs may direct the transfer of a child remanded to a remand centre to another remand centre for the remainder of the child’s period of remand if the remand centre to which the child is to be transferred provides the conditions and facilities suitable for the custody of children who are remanded under section 88 and—

(a) the remand centre to which the child is to be transferred caters in accordance with the provisions of this Part for that class of child, or

(b) the Minister for Children and Youth Affairs considers that the transfer is necessary in the interests of good governance of remand centres.

(2) Before giving a direction under this section, the Minister shall consult the Director, or where a remand centre is not situated in a children detention school, the board of management, of the remand centre from which and to which it is desired to transfer the child so as to ascertain whether the transfer would be in the child’s best interests, or if the transfer would not be in the child’s best interests, what other course of action should be adopted in respect of the child.

(3) The Director, or where the remand centre is not situated in a children detention school, the board of management, of the remand centre to which the child was remanded may request the Minister to make a direction under subsection (1).

(4) In this section—

(a) a reference to a Director of a remand centre means a reference to the Director, within the meaning of section 180, of the children detention school in which the remand centre is situated, and

(b) a reference to a board of management of a remand centre means the board of management appointed under section 88(9) to manage the remand centre.

Discipline of children on remand

88B. (1) Subject to subsection (2), sections 201, 201A and 201B (other than subsections (1)(e), (5) and (8) of section 201A) shall apply, with any necessary modifications, to children on remand as they apply to children detained in a children detention school on foot of a children detention order.

(2) For the purposes of subsection (1) —

(a) references in sections 201, 201A and 201B (other than in relation to subsection (1)(e) of section 201A) to ‘breach of children detention school discipline’ or ‘disciplinary breach’ shall be construed as references to breach of remand centre discipline provided for under this Act or by regulations made under this Act, and

(b) where a child is remanded to a remand centre—

(i) that is situated in a children detention school, references to ‘Director’ in sections 201, 201A and 201B (other than in relation to subsection (1)(e) of, and in subsection (5) of, section 201A) shall be read as references to the Director, within the meaning of section 180, of the children detention school in which the remand centre is situated, or

(ii) that is not situated in a children detention school, references to ‘Director’ in sections 201, 201A and 201B (other than in relation to subsection (1)(e) of, and in subsection (5) of, section 201A) shall be read as references to the board of management appointed under section 88(9) to manage the remand centre.”.

7. Amendment of section 98 of Principal Act

7. Section 98 of the Principal Act is amended, in paragraph (h), by the deletion of “including an order under section 155(1),”.

8. Amendment of section 143 of Principal Act

8. Section 143 of the Principal Act is amended, in subsection (2), by the insertion of “in language that is appropriate to the age and level of understanding of the child concerned” after “give its reasons for doing so in open court”.

9. Provisions regarding period of detention imposed by court

9. The Principal Act is amended by the substitution of the following section for section 149:

“Provisions regarding period of detention imposed by court

149. (1) Where a child is convicted of an offence and a period of detention is imposed on the child by a court, the period of detention shall not exceed the term of detention or imprisonment that the court could have imposed on a person of full age and capacity who is convicted of such an offence.

(2) Where a court imposes a period of detention exceeding 3 years on a child, it shall give its reasons for doing so in open courtin language that is appropriate to the age and level of understanding of the child.”.

10. Amendment of section 151 of Principal Act

10. Section 151 of the Principal Act is amended, in subsection (4) —

(a) by the insertion of “on being granted remission of portion of his or her period of detention in a children detention school pursuant to regulations made under section 221,” after “detention”, and

(b) by the deletion of “on earning remission of sentence by industry or good conduct or on being given temporary release under section 2 or 3 of the Act of 1960,”.

11. Persons who attain 18 years of age while detained

11.(1) The Principal Act is amended by the substitution of the following section for section 155—

“Persons who attain 18 years of age while detained

155. (1) Where—

(a) a person is detained in a children detention school on foot of a children detention order following conviction for an offence, and

(b) the person’s 18th birthday (which in this section shall be known as the ‘relevant date’) will occur before the period of detention specified in the order expires,

that person shall serve any period of detention remaining to be served on the relevant date in a place that shall be determined in accordance with this section.

(2) The Director shall, before the relevant date, request the Minister for Children and Youth Affairs to authorise, under subsection (3), the transfer of a person referred to in subsection (1) on the relevant date or not later than 7 days from that date.

(3) On receiving a request under subsection (2), the Minister for Children and Youth Affairs shall, before the relevant date and after consultation with the Minister, authorise the transfer of the person to such—

(a) place of detention provided under section 2 of the Act of 1970, or

(b) prison,

as the Minister for Children and Youth Affairs, having consulted with the Minister, considers appropriate, to serve the period of detention that remains to be served by that person on the date that he or she is transferred.

(4) On receiving an authorisation under subsection (3), the Director shall transfer the person to the place of detention or prison concerned on the relevant date or not later than 7 days from that date.

(5) Notwithstanding subsections (2), (3) and (4), if—

(a) a person is engaged in a course of education or training in the children detention school, or

(b) the period of detention remaining to be served by a person in the children detention school on the relevant date is 6 months or less,

the Director may, instead of making a request under subsection (2), determine that the person shall continue to be detained in the children detention school for a period not exceeding 6 months from the relevant date.

(6) Where a Director has made a determination under subsection (5) that a person shall continue to be detained in a children detention school for a period not exceeding 6 months from the relevant date and—

(a) before the period has elapsed, the person—

(i) completes the course of education or training to which paragraph (a) of that subsection refers, or

(ii) ceases to be engaged in the course of education or training concerned,

or

(b) the period is about to elapse,

the Director shall, or in the case of a cessation of engagement referred to in paragraph (a) (ii), may, where a period of detention remains to be served by the person, make a request under subsection (2) as soon as may be in respect of that person and in such case, reference in subsections (2) and (3) to ‘before the relevant date’ shall be construed as ‘as soon as may be’ and reference in subsections (2) and (4) to ‘on the relevant date’ shall be construed as a reference to the day after the date of authorisation by the Minister for Children and Youth Affairs under subsection (3).

(7) Notwithstanding any provision to the contrary contained in any enactment, a child shall not be transferred from a children detention school to a place of detention provided under section 2 of the Act of 1970 or to a prison.

(8) In this section—

‘Director’ means the Director, within the meaning of section 180, of the children detention school in which a person referred to in subsection (1) is detained before the relevant date;

‘enactment’ has the same meaning as it has in the Interpretation Act 2005.”.

(2) The amendments to section 155 of the Principal Act effected by this section shall not apply to persons detained on foot of a children detention order that was made before the commencement of this section and section 155 of the Principal Act shall apply to such persons as if subsection (1) had not been enacted.

12. Amendment of section 157 of Principal Act

12. Section 157 of the Principal Act is amended—

(a) by the insertion of the following definitions:

“ ‘amalgamation date’ has the meaning assigned to it by section 163A;

‘amalgamation order’ has the meaning assigned to it by section 163A;

‘amalgamated school’ is a children detention school that is formed by the amalgamation of 2 or more children detention schools pursuant to an amalgamation order;

‘Appeal Tribunal’ shall be construed in accordance with section 201D;

‘approved absence’ means the absence of a child from a children detention school under section 202, 203, 204, 205 or 207, as the case may be;

‘disciplinary breach’ has the meaning assigned to it by section 201;

‘Inspector’ has the meaning assigned to it by section 186A;

‘Minister’ means the Minister for Children and Youth Affairs;”,

and

(b) by the substitution of the following definition for the definition of “child”:

“ ‘child’ means—

(a) a person under the age of 18 years in relation to whom a children detention order is in force,

(b) a person of 18 years or over in relation to whom a children detention order is in force and in relation to whom the Director of a children detention school has made a determination under section 155(5) that is in force, or

(c) for the purposes of any provision of this Part that applies to a person remanded under section 88 to a remand centre situated in a children detention school, a person who has been so remanded.”.

13. Permanent or temporary closure of children detention school or part thereof

13. The Principal Act is amended by the substitution of the following section for section 163:

“Closure of children detention school or part thereof