How should Ireland treat children when it comes to criminal sentencing?

The best interests of the child is at the centre of the Children Act 2001, which is based on the United Nations Convention on the Rights of the Child.

The convention, as Ursula Kilkelly, professor of law at University College Cork and chair of the board of Oberstown Children Detention Campus, has stressed, permits children to be detained only as a measure of last resort and for the shortest appropriate period of time. Child offenders must be treated in line with their age and circumstances, with the particular focus on specialist, child-centred approaches.

In a general comment on children’s rights in juvenile justice in 2019, the UN High Commission on Human Rights expressed concern about trends relating to the minimum age of criminal responsibility and the “persistent use” of the deprivation of liberty.

The objectives of that general comment included promoting key strategies for reducing the “especially harmful” effects on children of contact with the criminal justice system, in line with increased knowledge about children’s development.

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The sentencing on Monday of a 17-year-old youth for the murder of Urantsetseg Tserendorj, carried out when the boy was aged 14, underlines those concerns.

In deferring sentence earlier this month, Mr Justice Tony Hunt referred to a “yawning gap” in the 2001 Act in that it confers no specific powers on the courts to review or suspend sentences imposed on children convicted of serious crimes.

In response, the Minister for Justice, Simon Harris, pledged that new sentencing structures will be introduced. The judge said yesterday he was encouraged by what he had heard and, while stressing the precise reform is a matter for the Oireachtas, said there “needs to be a proper way in which the interests of the offender and society ... can be synthesised at all stages of the process”.

He imposed a sentence of detention for life, backdated to January 2021 when the boy first went into detention, with a review after 13 years. The review will be preceded by a series of probation reports. As is the case with all convicted offenders, the youth is eligible to apply for parole after 12 years.

He will serve his sentence in Oberstown until he turns 18, after which he will be moved to an adult prison.

[ Urantsetseg Tserendorj’s husband: ‘Without her, everything is dark and heavy’ ]

Prof Tom O’Malley, senior counsel and law lecturer, whose expertise includes criminal law and sentencing, says the Children Act 2001 needs to be reviewed to cater more specifically for children convicted of all serious offences, not just murder. The position, he says, is further complicated by the Parole Act 2017 which provides that, in relation to all persons serving a life sentence, an arbitrary cut off point of 12 years before consideration of parole.

While the 2001 Act does not specifically confer a power on the courts to review or suspend sentences imposed on children convicted of serious crimes, the courts have exercised that power in a number of cases, he points out.

The legislature’s options include to review the law on murder to allow for imposition of a life sentence with specification of a time to be served before the offender is eligible for parole.

The courts could also be given powers to decide how long a life sentence prisoner should serve before being eligible for parole with the Parole Board entrusted with the final decision on release.

O’Malley shares concerns of juvenile justice specialists that a child who is sentenced to detention for life before they turn 18 is moved within six months of their 18th birthday to an adult prison which, unlike Oberstown, is not geared to rehabilitation and reintegration. He would like to see detention continue until age 21 or 24, saying that would be beneficial for young offenders and society in general.

“People often forget about that,” he says. “Rehabilitation benefits the offender and society, we have a vested interest in ensuring that people will be socially reintegrated and won’t reoffend. That is why parole is good, the offender does not just walk free, they are subject to supervision for the remainder of their sentence, there is a structured transition from custody to freedom.”

Circuit Court Judge John O’Connor, a juvenile justice specialist, has written that sentencing rules should be changed to take account, among other things, neuroscientific evidence about a child’s development and evolving capacity, since magnetic imaging has shown the adolescent brain is structurally different to a mature adult, particularly in the parts of the brain devoted to impulse control.

Sentencing, according to O’Connor, should focus on a child’s “needs, not deeds”.

Ireland, he has argued, would do well to look to the New Zealand youth justice system where reintegration, restorative justice, diversion programmes and family empowerment are strong components of its ethos and the emphasis is on rehabilitation, not detention.