Children and the Irish legal system


Sometime in the late-1970s or early-1980s (I can’t remember exactly) a 7-year-old child in Cork was charged with theft of a chocolate bar from a supermarket. He chose to be tried by judge and jury. He then further chose to be tried in the Central Criminal Court, which only sat in Dublin (an option which is no longer available to defendants). The prosecuting Garda, the shop-owner, the witnesses all had to travel up to Dublin for the court case, which lasted a whole day. The judge remarked that it was hardly “the trial of the century.” The young boy was found guilty and some minor penalty was imposed. We may comfort ourselves that this was a different Ireland, a less progressive Ireland, but children are still going to court for minor offences while justice evades others.

For all of the 20th century, the age of criminal responsibility was seven years. Children were treated as adults, to be held fully accountable for their actions under the criminal law; their anti-social or criminal behaviour considered to be the result of bad behaviour consciously chosen. Consequently, their behaviour had to be controlled and they had to be disciplined, through the imposition of punishments. Parents slapped their children, corporal punishment was used in schools and, where the behaviour was criminal, prosecution, even for relatively minor offences or for missing school, could lead to a lengthy spell in an industrial school.

One child, arrested for theft, was taken to the Garda station and given a hiding. “I hope,” the Garda said, “that you’ll now think twice about robbing again.” The child replied, “No, I won’t, you’ll never be able to hit me as hard as my father used to hit me.”

When I opened a community-based hostel in 1979 for inner city teenagers in trouble with the law, I was told by the authorities that they did not see the need for such a facility, they did not agree with it, and they certainly were not going to support it. I was told that these children were “bad” children and the appropriate response was to get them arrested and punished. I was seen as part of the problem, not part of the solution, as I was providing them with a safe place to live, feeding them properly, buying them clothes and taking them on holidays!  And I was going to court to try and persuade the judge not to lock them up, much to the frustration of many Garda.

Loughan House, formerly an adult prison, was opened in 1978 as a prison for young people, aged 12-16, mostly from Dublin’s inner city, involved in robbing cars and handbags. It was staffed by prison officers with two weeks child care training, one of whom, during their training, held up his fist and said, “This is all they understand.” After intensive criticism from child care agencies, it was replaced in 1983 by Trinity House Detention School, which was a secure unit operating as a care, education and rehabilitation unit rather than a prison. The boys were generally aged 14 or 15 when admitted to Trinity House.

Originally started in Clonmel in 1904, before moving to Dublin fifty years later, St Patrick’s Institution housed the older cohort of boys and young males aged 16-21.  Many of the young people there had suffered abuse, violence or serious neglect in their earlier childhood, sometimes in the industrial schools in which they had already spent some time. They were locked in cells for 18 hours a day, educational and training facilities were minimal due to cutbacks in funding.

St Patrick’s Institution was a “warehouse” for young people, many of whom were already broken by their childhood experiences. By entering into a harsh and punitive system, they were further broken down. It was a demoralising, destructive and dehumanising experience, with no redeeming features, characterised by idleness and boredom. Some politicians and tabloid media believed the regime was not sufficiently harsh to deter them from committing further crime on release. One young person there summed it up very succinctly when he said: “This place brings out the worst in you.”  It was only finally closed in 2017, just slightly over five years ago.

A key catalyst happened in 1989 which started the painfully slow process of changing how children were treated by the criminal justice system. The United Nations Convention on the Rights of the Child was adopted and ratified by every country (except the United States and Somalia!). Hence, by the 1990s, attitudes to children in trouble began to change. The Child Care Act 1991 was an attempt to address the complex needs of troubled and homeless children, which had, up to them, been largely ignored.  In 2001, the Children Act explicitly addressed the State’s response to children who broke the law.  It raised the age of criminal responsibility to 12 for all but the most serious offences, and required detention to be a response of last resort and to be imposed for the shortest time possible.

The amalgamation of Trinity House with three other children’s detention facilities created the Oberstown Children Detention Campus in 2017. The focus was now firmly on a child centred and rights-based approach to these children. From being considered, right up to the early 1990s, as bad children needing to be punished, they were now acknowledged as children with complex needs that had to be addressed. In a 2019 report, it was noted that of the children there:

  • 71% had a substance misuse problem
  • 57% were not engaged in education prior to detention
  • 41% had been in care or had significant involvement with child care service, prior to detention
  • 41% had mental health problems
  • 23% had a diagnosed learning disability
  • 19% were members of the Travelling community

The Oberstown Children Detention Campus, though not perfect and still with challenges and difficulties ahead, is a model of good practice in the care of children in detention. However, its effectiveness is somewhat limited by the absence of a statutory entitlement to aftercare, meaning that community –based services cannot be compelled to support a child leaving detention. A further problem is that children who reach 18 years are transferred to an adult prison, putting at risk the positive work done in the Oberstown Campus. Like our adult prisons, we must always, in spite of good practice, seek a decarceral approach in youth detention.


Author: Peter McVerry SJ