Contextualising the Children Bill as a response to youth crime
Paper delivered at the National Conference of YOUTHREACH Co-ordinators, Nuremore Hotel, Carrickmacross, Co. Monaghan, 12 February 2001
Dr Paul O’Mahony
There are presently many different responses to juvenile offending in Ireland, but they are fragmented, unco-ordinated and sometimes self-contradictory. They fail to constitute an adequate, comprehensive system that would maximise the chances of persuading troubled and troublesome young people to avoid crime. They also fail to provide at risk young people with constructive alternatives and opportunities in life so that they themselves would not consider crime a feasible or desirable option.
Some of the preventative measures in current use are progressive and can, with certain individuals, be very effective, such as the juvenile diversion scheme or indeed your own work in Youthreach, but some are inappropriate and ineffective, such as our overuse of detention for people under 21. Others, such as preventative work with at risk youngsters as in the Garda projects, have great potential but are often under-resourced and not fully integrated into the overall strategy.
The Interdepartmental Group report on “Urban Crime and Disorder” published in 1992 represents a turning point in Ireland because of its recognition of both the chaos of our juvenile justice system and the causative factors underlying youth offending. This report was a landmark on the way to our current relatively enlightened position. Because of this reports and subsequent ones like it, government is at last prepared to move beyond simply blaming individual perpetrators to address social and structural factors, such as the physical condition of corporation estates and the inadequacies of the educational system. They are also, and this I believe is a very useful as well as a welcome departure, prepared and sometimes keen to learn from the social and human sciences and from models of best practice from abroad.
The Interdepartmental report stated that “failure to assign essential resources to the task of dealing with factors which contribute towards urban crime and disorder could have extremely serious and expensive consequences for Irish society as a whole in the longer-term”. While couching its argument in the almost obligatory economic terms, the group correctly identified, as crucial to an understanding of juvenile crime, social and economic factors. They focused on poverty and lack of educational and employment opportunities .and they recognised that these were preventable problems that could and must be tackled. The report also acknowledged that major socio-economic disadvantages are often compounded, in the background of vulnerable young people, by other prevalent ills, such as alcoholism in the home, juvenile alcohol and drug abuse, poor parenting including child abuse and neglect, lack of self-esteem, boredom and truancy.
In this context and given the intervening years of increasing commitment to social partnership and the abolition of social exclusion, what does the forthcoming Children Act have to offer?.
The main provisions of the Act are
1) That the age of criminal responsibility will be raised to 12 years (from 7 years);
2) The Garda Diversion scheme is to be placed on a statutory basis;
3) Detention is to be seen as a last resort (in spite of the creation of the extra custodial places in what are to be called Children Detention Schools) and this positive bias towards alternatives to custody is supported by an emphasis on diversion and community disposal of cases as seen for example in the provision of Day Centres and legal orders for attendance at them and sentences to treatment, especially for drug abusing offenders.
4) The Bill is also expected to more decisively separate the provisions and mechanisms for care and protection from the criminal justice system, especially by leading to the provision of a number of high and moderate support units under the control of the Health Boards. This it is confidently expected will see an end to the embarrassing spectacle of Judge Peter Kelly continually berating the executive for its failure to provide suitable accommodation for needy young people. These units will emphasise an individual, needs-based approach, including relationship- and trust-building, high standards of educational, health, leisure and material provision, and a maximum of continued parental involvement to maintain affectional ties within the family.
5) A Special Residential Services Board will also be established, for the purpose of ensuring the efficient, effective and coordinated delivery of services to children in special schools.
6) On a somewhat different tack, courts, under the new Act, will be empowered to order the parent or guardian of a child found guilty of an offence to pay compensation
7) The courts will also be able to order the parent of a child offender to enter into a recognisance to exercise proper and adequate control over the child. Reoffending by the child could in effect lead to a fine imposed on the parents.
8) Finally but perhaps most radically is the introduction of family conferences which are largely based on the restorative justice philosophy
These conferences which can be called at the diversion stage by the Juvenile liaison system, when they will be facilitated by a Garda or at the prosecution stage by the court, when they will be facilitated by a Probation and Welfare Officer, bring interested parties together to work in a consensual way that respects the needs of the child his family the victim and the wider community. The conference will attempt to gain a full and rounded view of why the child became involved in the offending behaviour and will discuss how the parents or guardian, family members and relatives or any other person or agency could help to prevent similar behaviour in future.
The conference will formulate an action plan for the child, which might include an apology, reparation, attendance or participation in a programme, being physically restricted to home at various times or from certain specific persons and places. However, the conference will also be committed to upholding the concerns of the victim and having due regard to his or her interests. If the victim is willing the conference will bring together the child and the victim, especially so that the child may be given the opportunity to understand the consequences of his or her actions on the victim. Finally a conference can be recalled to review the child’s behaviour since admission to the diversion programme.
It is often said that it is ludicrous and shameful that we still operate under a 1908 Act in the area of juvenile justice. Social conditions and the position of young people have changed dramatically since that Act, so it is reasonable to condemn the neglect and inertia of successive Irish governments in this area. However, it is worth remembering that in its time the 1908 Act was far from, as it is sometimes painted, the draconian, inflexible response of a more barbaric and heartless era to offending young people. In fact, there are many elements in that Act that echo aspects of the current Bill. For example, there was the possibility of restitution and a form of mentoring and some attempt to mobilise parents to act in a positive way. In short the Act in its time was quite an enlightened and flexible piece of legislation.
I think it is important to make the point that it is by no means entirely the fault of the 1908 Act that we have ended up with a chaotic and utterly inadequate juvenile justice system. Nor would it make any sense to approach the implementation of the new Act in an overly optimistic and confident frame of mind as if it offered a panacea for the present problems of the system or a genuine final solution to the juvenile crime problem. The Children Act could be a very significant stepping stone towards a better way of doing things but it will not revolutionise things nor immediately usher in a new and totally satisfactory system. There is often a huge chasm between the aspirations of the drafters of legislation of this kind and what eventually becomes the everyday reality of the system on the ground.
In part this gap is a result of the immense complexity and difficulty of the area, which is after all at the grand level a form of highly ambitious social engineering. The Children Act sets out to utilise the powers and resources of the State in an attempt to control the conduct of its young people. But it can, realistically only offer a framework and a small number of mechanisms that might in some way facilitate this purpose. The underlying social engineering task is immense and, the cynic might say, tantamount to abolishing unhappiness from the world.
I am going to draw attention to three of the areas of difficulty – first the difficulty of raising children even in the best of circumstances; second the underlying problem of social inequity that impacts on families and on the psychology of individuals and third the commonplace failure in Ireland to create effective systems to implement social programmes. The Children Act will almost certainly fall foul of all three of these problem areas.
First, then, in relation to parenting. Erich Fromm has said: “For a man to be stunted in his growth and become vicious is as much a real possibility as to develop fully and to be productive; the one or the other outcome mainly depends on the presence or absence of social conditions conducive to growth”. The most immediately and obviously relevant social conditions influencing these positive and negative outcomes are found in the family and care-giving environment of children. Each of us who is a parent, let alone society when it sets out to substitute for or intervene in parenting, is faced with a huge mountain of challenges.
Bruno Bettleheim has written a book very sensibly titled ‘A Good Enough Parent’. The title acknowledges that realistically being a good enough parent is all most of us can aspire to. Just two of Bettleheim’s descriptions of “good enough parenting” indicate how immensely difficult the task is even for those in harmonious two parent families with good personal and material resources. First, he argues that “the parent must not give in to his desire to try to create the child he would like to have, but rather help the child to develop – in his own good time – to the fullest, into what he wishes to be and can be, in line with his natural endowment and the consequence of his unique life history”. In other words we have to respond to the uniqueness of each individual child and this is far harder than it might seem. Second Bettleheim argues that “only the example of our own good behaviour will induce our children to make such behaviour part of their personalities – and only then if we are open about it and neither force our values on them nor expect them to be able to emulate our examples before their own development makes them ready to do so”. My point is that even “good enough parenting” calls for a whole pantechnicon of skills, sensitivities, and virtues that few of us can claim.
The human child has obvious needs for physical and material security but the need for a sense of positive identity and self-worth is equally basic and absolutely crucial to the successful, future development of the individual. Lack of unconditional love, neglect, emotional rejection or generally harsh treatment will contribute to a negative view of the self in the child, which can have damaging effects lasting into adulthood and can lead to aggressiveness and can undermine an individual’s capacity for self-control.
It is little wonder that many parents fail at the task of socialising their children in an appropriately positive way. Research findings are now quite consistent in describing both the positive forms of parenting that lead to balanced and well-socialised young people and the negative forms that greatly increase the chances of children growing up with problems of aggressive, anti-social and offending behaviours. For example Snyder and Patterson in their own research and in a review of the wider literature have identified four themes or aspects of parenting that have a key role. These are :
1] Monitoring which refers to the extent to which parents are aware of and set clear limits to what their children do, whom with and where and when
2] Discipline which should be consistent without being harsh or neglectful
3] Positive Parenting, which refers to the vital importance of frequent warm, loving, engaged and supportive interactions between parent and child -and
4] Problem Solving which refers to the readiness of parents to acknowledge, and their skilful ability to proactively address and resolve conflict within the family. It is easy to see how any parent might go wrong or fail at this extremely sensitive and skilled business.
A lack of rules in the family setting, or inconsistent rules, or a lack of enforcement of rules, especially when combined with punitive, power assertive methods of discipline have been associated with poorer outcomes as has a generally permissive but cold style of child-rearing. Parents who model anti-social attitudes and behaviours are also very influential, to the extent that the socialisation process within such families may succeed only in passing on an uncertain or inconsistent or perhaps even frankly anti-social set of values.
However, the many neglectful, incompetent and irresponsible parents are, themselves, very often part of the cycle of disadvantage and their weaknesses reflect the social conditions imposed on them in their own upbringing, their own background of deprivation and disadvantage, as much as their own moral frailty. Poverty and disadvantage often prevent parents from parenting in the way they want to parent. One way to break down this negative cycle is to provide positive, constructive and empowering programmes focused as much on the parents as on the child. Another, of course, is to abolish poverty. But already it is possible to see the flaws in the proposed Children Act, because its focus is on holding parents accountable and these parents will often be people who have always lacked the kind of supports that would enable them to exercise this kind of responsibility.
The influence of the family is absolutely critical. However, just as important, partly because of its role in conditioning the family environment, is the social environment beyond the family. The social and economic setting provides the context in which the family must struggle to exist. Conditions of poverty, poor housing, chronic unemployment, under-education and socio-cultural disadvantage can be seen to be actively criminogenic and to foster whole communities that tolerate or even encourage offending. .
Material conditions of disadvantage have a massive impact, often undermining the capacity of people to be effective parents. But the experience of growing up poor, devalued, excluded and stigmatised must itself be admitted as a direct and significant influence at the psychological level on the creation of youthful offending. The inequality of conditions and life chances in Irish society is itself criminogenic – over and above the fact that it makes good parenting less likely. The personal experience of inequality and injustice can create alienated, frustrated and angry people. In the same way that sexual and physical abuse in childhood is known to have a role in causing some of the victims to become adult perpetrators, the experience of extremely harsh conditions at the bottom of the social well can be expected to play a part in transforming the undeserving victim of these conditions into a perpetrator who will think little of victimising others
I have carried out two surveys of Mountjoy prisoners, in 1986 and 1996, which lead to a by now quite familiar profile of prisoners as having a history of stark social and economic disadvantage and personal adversity. It is sometimes argued that this picture is extreme because it relies on a sample at the very worst end of the spectrum, that is incarcerated adults. However, recent research completed for the Juvenile Justice Review Group has looked at the other end of the spectrum, at 84 children attending the Dublin Childrens’ Courts. It is very significant that the customary picture of social and educational disadvantage applied equally to these 84 children profiled by the researchers.
The 84 children aged from 10 to 17 came from relatively large (possibly still incomplete) families with an average of 4.6 children, more than twice the national average. Thirty percent of the total had suffered the loss of one or both parents either permanently or for long periods and only half of the children presently had two married parents in the home. Thirty-six percent of the children lived with the mother alone. On a rough estimate, 80% of the children lived in local authority housing. Only a third of fathers, in families where there were fathers present, were in full-time employment. For over a quarter of the children parental abuse of alcohol was recorded and for more than one in ten, parental drug abuse. Ten percent of the children came from homes where there was a record of domestic violence and 17% of them were known to have been victims of physical abuse. Unsurprisingly but most significantly, twenty five percent of the children had left school before the age of 14 , 85% before the age of 16 and 90% were currently out of school. Also about 30% had at some time been suspended or expelled from school. In a third of cases, the Probation and Welfare Officer had recorded a considered opinion that there was poor or inadequate parental supervision of the child. In almost 40% of cases, another member of the child’s family was known to have offended.
About half the children were involved in substance abuse of any form (i.e. including alcohol and tobacco) and about one in three (26 children) in drug abuse. Twenty of the 26 were described as having a serious problem and 18 of the twenty had an involvement with heroin. Only 5 of these more serious drug abusers had attended a detoxification programme. However, it was noted that 35 children out of the 84 had had some contact with Health Board psychological services and that a further 34 had been in contact with other agencies such as drug treatment centres and private counselling services.
The continuity of these results with those of the Mountjoy studies is stunning and it constitutes compelling evidence of an utterly defective social system and support for High Court Judge, Mr Justice Barr’s recent very forthright statement that the worst injustice in modern Irish society has is “our failure as a caring society to take sufficient steps to rescue from crime those who are born to it and have the misfortune of existence without reasonable support in the marginalised economically and socially deprived fringes of our society”.
According to this analysis, then, we must be realistic and cautious when pinning hopes on the Children Act. It is important not to expect too much of the Act and to remember the much wider context of positive social policy that is required if the Act is to reach its potential. First there is the immense difficulty of preventing juvenile crime by impacting positively on individuals and families. Second there is the gigantic task of social engineering which must go beyond intervening with maladjusted and disaffected people in order to make them fit better with society and must achieve the infinitely harder task of changing society itself so that it creates fewer maladjusted and disaffected people. Then there is the third problem area which is the very familiar and much less excusable Irish failure to organise effective public services and to comprehensively and effectively implement well-intentioned legislation such as the Children Act.
The current Children Bill recognises the limited culpability of young people for getting into trouble with the law and tries to find ways to realise the real potential for intervention at this stage in their development. But the same could be said of the 1908 Act in its era and there is a real danger that, like the 1908 Act. the current Bill will fail to live up to its promise because, through lacks of funds or genuine support and enthusiasm, things are simply not done properly. Cost-cutting and other compromises in resource provision, demarcation disputes between autonomous organisations, that are defensive and jealous of their own powers, or laziness, carelessness, and ignorance in adhering to and applying the important principles can all seriously and very easily undermine a system and introduce chaos and self-defeating inconsistencies of approach. An example from the criminal justice area is the farce of the bail referendum. The constitution was changed in order to make the refusal of bail easier at a time when the system was so ineffective that in only a tiny proportion of cases where bail was breached was the fine collected. In other words there was no serious system in place to enforce the law as it presently stood.
Closer to the subject of the Children Act, the published conclusions of a recent Breaking through Conference are a case in point. Among the conclusions drawn at the Conference were that while a multi-agency approach is of enormous benefit, policy can and does impact by sometimes enabling but sometimes blocking such cooperation. In general it was concluded that there is in the youth welfare area “a lack of long-term strategic planning, epitomised by short-term funding and a reliance on pilot programmes”.
The peculiarly Irish failure in this area of implementation may in fact be serving an underlying purpose. It may covertly be part of the system for maintaining a status quo that after all serves the majority very well. For example, we have a two-tier health system and a two-tier education system. The taxpayer subsidises these two systems and the way in which they look to the interests of the comfortable middle classes as a first priority. The existence of an underclass in Irish society and of a whole series of very obviously inferior public service systems designed to serve their needs is probably not the result of a deliberate government policy favouring their creation. However it is the result of deliberate policies aimed at other objectives, namely satisfying the middle class voter first and foremost, This well-established approach knowingly disregards the unfortunate but inevitable consequences of policies favouring the middle classes and indeed the wealthy for the weaker sectors of society. We seem to have a society dedicated to what Julian Tudor Hart has named the Inverse Care Law – Those in most need of care get least care.
Even within the juvenile justice system there are signs of a two-tier system. The Juvenile diversion programme for example is very successful with the children it accepts. However there is some evidence that the most vulnerable, most at risk and most needy children inspire only a lack of interest and hope and are from an early age excluded from genuine consideration. The research I have mentioned already on the Childrens’ courts also undertook an analysis of the contact with the Juvenile diversion scheme of 77 out of the group of 84 children. Most strikingly, for these as we have seen very disadvantaged children, prosecution final status was the result for 14% on their first offence and first referral to the NJO. Prosecution final status means that the individual has not been accepted for the diversion scheme but is instead sent forward for prosecution. It also means that the NJO have deemed this particular offender unsuitable for diversion with respect to any future offences. Prosecution only status, entails that the prosecution on this matter is without prejudice for decisions on possible diversion for future offences. This status was the result of initial contact with the NJO for a further 24% of the sample. In other words, fully 38% of the 77 children when making a first contact with the NJO were rejected for diversion and passed on for prosecution. This suggests to me another area of social policy which is successfully implementing the inverse care law despite all the lip service to the philosophy of social inclusion.
On the other hand, while it is reasonable to question policy-makers’ and the various public authorities’ commitment to the full and efficient implementation of the more difficult and demanding aspects of the Children Bill, it would be wrong to criticise the Bill because it doesn’t offer a prescription for wider problems such as impacting positively on socialisation within the family or on inequality within society.
The Children Act in its own right will be a major departure with huge potential for positive change in the juvenile justice system. The raising of the age of criminal responsibility to 12 is itself an enormous step. In one fell swoop the misbehaviour of children under twelve, however serious it is, is to be redefined as non-criminal. This alone will produce a revolution in thinking and in practical approaches. Troublesome children under twelve will in other words have to be dealt with under the aegis of the Health Boards or the Department of Education by way of purely educational and therapeutic methods. In theory this radical new approach will necessitate new truly child- and family- centred methods.
The reorientation of the system so that it prioritises community-based treatments and genuinely keeps custody as a last resort will be an immense challenge but it has real potential to radically improve on the present situation.
The restorative justice elements supported by the Bill also have potential. There is little doubt that victim offender mediation can be beneficial to both parties and that methods for increasing the community’s sense of ownership and participation in the law enforcement process are very welcome. Crime is a negative experience that comes out of negative experiences but a family group conference with strong agency and community involvement offers some hope of a more healing process that is less alienating of both the victim and the offender. It also offers the hope that some of the underlying needs of the offender will be acknowledged and properly addressed.
But examining the wider context allows us to see that the Children Act is not and should not be treated as a single isolated piece of legislation that says the last word on juvenile justice.
This Act is not the Holy Grail. Thinking that it might be or should be is partly to blame for the inordinate amount of time it is taking to get the Bill enacted. I would suggest that a more flexible pragmatic and speedy approach would be more appropriate. The real issues, after all. will be funding, resourcing, coordination across agencies and achieving clarity consistency and integrity in both objectives and means. We should be introducing this Act in a confident frame of mind – that this is the right approach – but we should also be flexible enough to be able to make amendments and adjustments to systems and indeed to legislation if they are found necessary. Showing how possible this is, speedy adjustments to other areas of criminal justice legislation have become commonplace in recent years sometimes for the wrong reasons. For example the Criminal Assets Bureau was brought in a matter of a few short months.
We should be approaching the new system with an open mind and an experimental outlook. This would entail a willingness to try out new approaches but also a readiness to have all aspects of the system open to scrutiny and careful scientific evaluation and to make improvements when they are found necessary..
On the one hand, it would be very useful if following the Austrian example there was cross party agreement to give the more radical aspects of the Bill breathing space for an agreed number of years – to give the new system freedom from highly damaging ,political point-scoring types of criticism. There will always be failures in juvenile justice, some of them sensational and headline grabbing, and these can very easily be exploited by politicians to seriously undermine programmes.
It is also important never to loose sight of the fact that the Children Bill and the approaches it proposes are only a relatively small component in a very much larger enterprise. They will not work or not work fully if the other elements are not in place and if they are not integrated with those other elements. This is to say that the success of the Children Act will finally be dependent on the success of all the other associated social policy initiatives – child care provision – anti-poverty measures – positive parenting training and supports – anti-drugs initiatives -and perhaps most centrally of all the initiatives in the area of education.
School and education has the potential, almost completely unfulfilled in this country – at least in the cities – to be a miraculous force for genuine and rapid upward social mobility for the least well-placed in society. Education really changes life chances and does this by empowering the child to better manage his or her own life. Unfortunately, in our points dominated system, educational success depends to a large extent on intellectual selection and many, indeed the majority of needy and at risk children simply do not fit the bill. The current attempts to change the education system so that it is more child-centred and more welcoming and meaningful for those who have up to now been dropping out at the first opportunity have been greatly strengthened by the turnaround in the Irish economy. There is now the possibility of offering all children an education suited to themselves and their talents which will provide the genuine prospect of a worthwhile and reasonably well-rewarded career.
It is obvious that this huge agenda of work to provide for young people and enhance their chances of avoiding crime requires a very well organised and cohesive system. I believe that this will require some kind of overarching Youth Authority that will have the power to oversee and co-ordinate policy in all of the different areas of enterprise, including those relating to criminal justice. There are some recent signs that government is willing to put in place such structures.
Finally, however, I think that the proof of the pudding will be in whether or not the whole enterprise is put on a truly professional footing. Not only should there be an end to seemingly endless pilot programmes, but there should be a thorough and effective and integrated system of qualification for the many people who will have to work at various levels in the system. A proper and attractive system of the incentives also needs to be provided. What I am saying is that youth workers should be recognised for the high levels of professional skill and dedication they require and show. The status of the work should be greatly enhanced – most particularly by providing secure, permanent and much better paid positions and an attractive overall career structure.
We live in a society where recently the great political visions all seem to be about sports stadia. The Taoiseach has a grand vision for the National Stadium at Abbotstown. This will be an elite, high prestige, showcase venue costing over half a billion pounds. An Irish Businessman has offered a cool £50 million gift towards this project. Think what this kind of money – the £50 million let alone the £500 million – could do for the youth welfare area. Perhaps even more importantly, think what it could do if Irish politicians and businessmen brought the same vision and energy to the business of youth welfare as they bring to the business of producing sports spectaculars.
© Dr Paul O’Mahony
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