When is a ‘young offender’ also a ‘child in need' - and can the system tell the difference?
The most recent figures from Oberstown Children’s Detention Centre note 41% of children in its custody were either in care or had significant involvement with Tusla because of child protection and welfare concerns. Picture Colin Keegan, Collins Dublin.
There once was a young child (let’s call them ‘Child’) who took a liking to a lovely, new, shiny bicycle which was locked to a lamppost just off Grafton Street.
Looking around in a very “sketch” manner to see if anyone was looking, Child took heed of the moment’s opportunity being out of sight. With one swift pull broke the lock of the bike and cycled off. It was not long after cycling into the sunset when a patrolling Garda car caught glimpse of a much-notable green puffer jacket.
The guards stopped and called Child, asking where one purchased such a lovely bike. Unbeknownst to Child, who was acutely caught on CCTV, they began to tell the tall tale of their bike ownership. Fairly unimpressed by the lies being told to them, the Guards arrested, detained and charged Child under the Children’s Act 2001.
Those of us not far from criminal law lectures and tutorials will know, or at least should know, that theft = crime. This is a relatively straightforward case: the child committed an act of theft and as such will be tried in the juvenile justice system via the Children’s Courts.
But – plot twist: Child lost both parents to addiction and was placed into State care at the tender age of five. While in State care, Child experienced multiple placement moves and a chaotic trajectory through the care system with very limited stability. There is a diagnosis of ADHD, an evident attachment disorder and recently Child began to self-harm.
The current placement in which Child resides in is known by local gangs in the area and children living here are often targeted. It transpired that Child was encouraged to steal the bike to be affiliated with the gang. And, with an urgent want to belong, Child obliged.
How does one conceptualise the child in this story – do we see them as a ‘child in need’ or ‘a young offender’? Statutory care occurs when the State steps in to supply the place of parents. This is done in circumstances where it is determined that a child is not receiving adequate care and protection.
There is both a legislative and constitutional onus on the State to care for children in need. The responsibility of which is delegated to the Child and Family Agency – Tusla.
Children living in State care represent a miniscule cohort in comparison to the general population. In any given year, there are on average between 5,500-6,000 children living in statutory care. It is important to stress that the majority of these children do not encounter the criminal justice system. However, there is a small cohort that does.
You might ask, why this is significant given that, in relative terms, we are speaking of a number so few as to make it borderline irrelevant. But what we do know is that these children (while so few) are over-represented in both juvenile and adult prisons.
For example, the most recent figures from Oberstown Children’s Detention Centre note 41% of children in its custody were either in care or had significant involvement with Tusla because of child protection and welfare concerns. I commend Oberstown for collecting this data, as other than youth criminal detention stats, Ireland has very limited insight into the matter as a whole.
We do not collect any reliable or consistent data on the numbers of children in care having cross-experience with the justice system, not just in terms of detention but also figures for children in care who come to the attention of the guards, those who are processed through the courts, youth diversion and probation programme’s and for what reasons. Nor are we collecting any data on the numbers of care-leavers post-care in adult prisons.
In the grand scheme of things, children in care and care-leavers in Ireland are predominantly a faceless cohort. And their experiences are quite often spoken of in reductionist ways, where the complicating factors influencing their trajectory in life are sided for numbers and statistics.
Only recently did the Minister for Children, Roderic O’Gorman, announce the commissioning of a longitudinal, qualitative study on the outcomes of care-leavers. The commissioning of this research is in response to the Ryan Report which concluded with its recommendations in 2009. We are now in 2022, a mere 13 years later and Ryan’s recommendations are finally being acted on.
I have taken from various recent court, academic and media reports: where children in State care, specifically those who came to the attention of the juvenile justice system, were referred to as ‘unruly’, ‘delinquent’, ‘disturbed’ and ‘out of control’.
Read More
In one court report, the duty to care for these children is referenced as a ‘burden’ on the State and noted that nobody could ‘envy the task’ of social workers and care workers working with these children. Even currently on Tulsa’s website does it state that residential care, which is one type of care provision, is reserved for the most ‘challenging’.
Do we fully realise that children hear and acutely understand how we speak about them? There are often loaded calls for these children to be ‘held to account’. Yet, when we put faces and histories to these labels what we are frequently met with is children who are victims; scarred by neglect, emotional, physical, and sexual abuse coming primarily from communities marred by poverty, marginalisation, addiction, crime, and many other social ills all jumbled into one, big complex mess.
This is the juncture where specific tension unfolds, when children in State care present with complex needs and high threshold behaviours. In particular, where these children come to the attention of the criminal justice system, there is an interesting grappling that occurs between the provisions of welfare and criminal justice.
Whatever side we land on will determine the type of provision with which the child is met and may mark that child’s future indefinitely. Aside from being a ‘child in need’ or a ’young offender’, these are real lives - real children, with names and experiences.
- Aisling Bruen is a law student at King's Inn and Auditor of the Law Student’s Debating Society of Ireland. She is also a care-leaver. This is an edited version of her inaugural address to the LSDSI at King's Inn.
