A High Court judgment that found all young offenders have the same remission rights as adults will have major implications and must be carefully handled, the Government's rapporteur on child protection has said.
All young offenders who have served three-quarters of their sentences with good behaviour will be released after Mr Justice Gerard Hogan this week ruled that they had the same right to remission as other prisoners. The judgment was given in a case taken by a 17-year-old at the Oberstown centre in Lusk, Co Dublin, who argued that his continued detention was unconstitutional.
Commenting on the judgment, rapporteur Dr Geoffrey Shannon said it was "very significant" and would have an impact far beyond the specific case heard in the High Court.
Caution urged
He urged a cautious response and said that if the Children Act 2001 – the main legislation governing the juvenile justice system – was to be amended, it should be done with a view to prioritising the interests of the child.
“Given the fact that the Act focused on rehabilitation, there needs to be some sort of differentiation between that approach and the approach in the adult world,” he said.
“What I am suggesting is that a different regime should apply in respect of minors.”
Dr Shannon said there were significant differences between Oberstown, which had individualised education and care plans for each child, and St Patrick’s Institution, a prison-type environment.
“There is a limited window to bring children back from the brink and I think there’s a real opportunity there,” he said. “Oberstown provides that limited window.”
He was speaking at an event organised by the Children's Rights Alliance to mark the publication of its new guide to children's EU rights in Ireland.
The boy at the centre of this week’s High Court case was 14 years old when he committed an attempted robbery in 2011 for which he received a sentence totalling 15 months in Oberstown. Another 12 months was suspended on condition he undergo post-release supervision.
The boy brought an application to the High Court seeking his release on the grounds his continued detention was unconstitutional. It was claimed prison rules, applicable in all prisons including St Patrick's Institution for young offenders, also applied to Oberstown.
Right to protection
Remission is applied to prisoners of good behaviour and can account for a quarter or a third of a sentence. The director of Oberstown school opposed the application brought on behalf of the boy under article 40.4.2 of the Constitution.
Dr Shannon said that, in considering how to respond to the judgment, there was a need to reconcile the rights and welfare of a child. “Surely one of the key rights a child has is the right to be protected. It’s important that we look at that broader issue,” he said.
He stressed that once a child had been released from a detention facility, it was important to invest significantly in supporting that child’s rehabilitation.
The chief executive of the Children's Rights Alliance, Tanya Ward, said last year's referendum showed that Irish people wanted to strengthen children's rights in the Constitution.
She noted, however, that the Supreme Court had yet to rule on a challenge to the referendum result "and we still await the children's amendment in our Constitution."
