Ana Kriegel: Case exposes legal gap in handling of child killers
The murder of Ana Kriegel, and its disturbing circumstances, has generated much debate.
None of us can truly know why it occurred and some questions may remain unanswered.
The case has also opened discussion about wider issues, such as appropriate responses to bullying in schools and online, the knowledge parents have about the activities of their teenage children, the difficulties of growing up in the 24/7 digital age, the wide accessibility to pornography at critical stages of young people’s development, and how best we protect our children from exploitation, violence, and psychological trauma.
From a youth justice and youth welfare perspective, this case has highlighted gaps, deficits, and a lack of clarity in our laws and practices.
As a legal practitioner, I have witnessed the struggle to protect children from violence inflicted by other children and also inflicted by adults, and the awful consequences of failing to do so.
The Children Act 2001 provides a legal framework for responding to the issue of children in conflict with the law.
It is, in many respects, a very progressive piece of legislation.
Yet, as was pointed out at the sentencing stage in the Ana Kriegel case, it does not address, specifically, how children convicted of murder are to be dealt with by the courts. In hindsight, it should have been considered at the time the 2001 Act was drafted.
Even at that stage, we had seen the same debate evolve in the UK, in the aftermath of the murder of toddler, Jamie Bolger, in Liverpool in 1993.
The trial of Boy A and Boy B highlighted two specific areas of law where further clarity should be considered. These areas are relevant to much wider cases than those of murder and go beyond the considerations in this case.
Following a Court of Appeal decision, sentencing judges in Ireland are not permitted to suspend any portion of a child offender’s sentence. This is in marked contrast to the sentencing provisions for adults and is at odds with the principle that detention of a child must always be a sanction of last resort.
Secondly, in the cases of older children, who may become adults during the course of their sentences, detention and post-release supervision orders in serious cases may also not be an option as a sentencing tool.
These areas would benefit from greater legislative consideration.
Sentencing someone to a period of detention or imprisonment serves a number of functions. It highlights the need to punish and protect, to mark serious wrongdoing, and to promote the rule of law. Detention also is an opportunity to reform and rehabilitate, even in the most serious and violent of cases. At some point, however, long into the future, the offender will be released back into the community.
How we resource the therapeutic services and supports in institutions such as Oberstown, the children’s detention campus, is critical for future outcomes, not just for the individual child offender, but also for society at large.
We have no tailor-made beds or units that can competently address many of our most complex cases. In non-criminal special-care detention cases, children are detained by order of the High Court, to protect themselves and others, such is the level of risk that they are deemed to pose.
In those complex cases, we have often looked further afield, and even outside the jurisdiction, to source and secure the right therapeutic support or service to meet the level of assessed risk of those children and young people.
We don’t have, or avail of, the same approach in our criminal detention system.
Do we have the level of expertise, support, and resources required within our probation services, within our social work departments, within our psychological and psychiatric services, to meet these challenging and complex cases? Is this level of need available, not just within our criminal justice system, but in our communities more generally?
The answer is most definitely not.
In the most complex and challenging of cases, it can be difficult to understand the mindset of those who inflict such harm and violence upon another. I have seen a rise in the complexity and intensity of child offences and child offenders. These problems cut across all social classes and divides and occur throughout all types of communities and families in Ireland.
These problems are not going to be solved solely, or mainly, by the criminal justice system — by the police, the judiciary, or by those working within places of detention.
The time has long passed when we should continue to enable and facilitate the view that child protection is the job of ‘someone else’.
I could paper the GPO in Dublin with correspondence from state bodies (in response to issues and queries made on behalf of children and their families) which seeks to deflect or evade responsibility.
Solving this problem requires a massive shift in mindset across all agencies, state bodies, and organisations to truly see this work as a collective endeavour. It needs to be led by the centre in a cross-agency, cross-departmental manner.
My own view is that the Department of Children and Youth Affairs be charged with leading this vital work — by developing a national, coordinated response-and-action plan that examines issues including, but not limited to: the robustness of our response to bullying in schools; children’s online behaviour and access to the internet; mental health services and sustained supports; and education programmes for children and their parents around consent and relationships.
We have to break the alarming pattern of young people seeing some of their peers as objects and commodities on a screen.
This needs to examine whether the juvenile justice system is properly serving child victims and child perpetrators.
It requires maximum buy-in from across government: in Justice, Health, and in Education.
It also requires the constructive input of parents, educators, professionals working with children, and the social media organisations.
Most importantly, it needs to engage with young people and ensure that their voices are heard, respected, and acted upon.
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