THE CHILDREN COURT- DUBLIN METROPLOITIAN DISTRICT COURT
DIRECTOR OF PUBLIC PROSECUTIONS (DPP)
1. The child defendant [AB] was born in 2000 and is now aged 17 years. His initials for the proposes for this written judgement have been changed to protect his anonymity due to the fact that only a small number of children are at any time detained in special care units.
2. AB is currently residing in residence which is run by a charitable organisation. This is a placement organised by Tusla [“the Child and Family Agency”]. The services provided offer a highly individualised developmental programme that supports his progression towards adulthood and endeavours to equip him with the necessary skills needed for positive self-care, independent living and social integration. The placement involves a tailored daily plan which AB believes meets his needs and he has a positive relationship with the staff of the residence.
3. AB has very supportive and stable parents who have struggled to manage their child’s significant needs particularly as he entered adolescence.
4. AB also has a good relationships with his guardian ad litem, social worker and key workers. He has had the benefit of a wide range of professionals such as an addiction counsellor. speech and language specialists and mental health professionals. AB has engaged in risk taking behaviour and in particular has been reported as Absent at Risk [AAR] on several occasions which puts a strain on his maintaining his placement. However he has also demonstrated a good awareness of identifying issues triggering his anger, physical aggression and regulation of his emotions.
5. AB has a diagnosis of:
Autism Spectrum Disorder [ASD], a neurological, developmental disorder which affects how children communicate, socialise and interact with others;
Oppositional Defiant Disorder [ODD], a pattern of angry/irritable mood, argumentative/defiant behaviour, or vindictiveness lasting at least six months;
Attention Deficit Hyperactivity Disorder [ADHD], which is a brain disorder marked by an ongoing pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development; and
Conduct Disorder [CD], an emotional disability characterized by an inability to build or maintain satisfactory interpersonal relationships with peers and/or teachers.
6. As a result of his diagnosis AB has severe difficulties managing his feelings and behaviours. He has a background history of below average intellectual ability, speech and language impairment and dyslexia. He has a history of violent and aggressive behaviour and has experienced emotional disability and suicidal ideation in the past.
7. AB was tried in the Children Court in the summer 2017 in respect of the following charges:
Three criminal damage charges contrary to section 2(1) of the Criminal Damage Act 1991 while residing at a care home in the Spring of 2016;
One assault charge causing harm charges contrary to section 3 of the Non –Fatal Offences Against the Person Act 2017 in the Spring of 2016 while residing at Special Care Unit;
Two assault charges causing harm charges contrary to section 3 of the Non –Fatal Offences Against the Person Act 2017 in the summer of 2016 while residing at Special Care Unit; and
A failure to appear at the Children Court contrary to section 13(1) of the Criminal Justice Act 1984 [as amended by section 23 of the Criminal Justice Act 2007] while residing at a Special Care Unit.
There were also a number of charges against AB which were dismissed on their merits.
Special Care Units
8. According to the criteria for appropriate use of “Special Care” homes [“Special Care Units”] in a report [“ the HSE Document”] by the Health Service Executive [“the HSE”] dated 15th September, 2008, it states:
“Special Care Units are facilities where young people who are in need of special care or protection are placed with the explicit objective of providing a stabilising period of short term care which will enable a young person to return to less secure care as soon as possible. Given the exceptional nature of this intervention the number of such units and places should be strictly limited. The supply of beds and their use will be closely monitored by the relevant stakeholders, i.e. the Health Service Executive/Children Acts Advisory Board.”
9. The objectives of Special Care Units are to:
1. Provide a short- term period of safe and secure care in an environment for young persons whose emotional and behavioural needs can only be met at this time in a special care setting.
2. Stabilise an ‘extreme’ situation which has been persistent and severe, following on a risk assessment.
3. Provide a controlled and safe environment in which care and appropriate intervention with young people who satisfy the admission criteria is undertaken.
4. Improve the welfare and development of young people in a model of care based on relationships, containment and positive reinforcement.
5. Provide a model of care which promotes consistency, predictability, dignity, meaningful controls and external structure which will assist young people in developing internal controls of behaviour, self-esteem, personal abilities and strengths, and capacity for constructive choice and responsibility.
10. The criteria for placement are:
1. The young person is aged 11 – 17 at admission.
2. The behaviour of the young person is such that it poses a real and substantial risk to his/her health, safety, development or welfare unless placed in a Special Care Unit, and/or on “an objective basis” is likely to endanger the safety of others.
3. The young person will present with a history of impaired socialization and impaired impulse control, and may also have an established history of absconding which places them at serious risk.
4. If placed in any other form of care, the young person is likely to cause self-injury or injury to other persons.
5. Consideration has been given to placement history and the elimination of all other non-special care options, based on the child’s needs. [Emphasis added by the HSE document ]
6. It is clear that a less secure structured environment would not meet the young person’s needs at this particular time.
7. Applications for placement in Special Care Units should be based on a comprehensive needs assessment.
Special Care Order
11. A Special Care Order is therefore granted in exceptional circumstances by the High Court and is usually for an initial period of 3 months and renewed on a monthly basis thereafter. It is effectively a needs based civil detention. Section 10 of the Child Care (Amendment) Act 2011 will substitute Part IVA of the Child Care Act 1991 [as inserted by section 16 of the Children Act 2001, (“the 2001 Act”)]. Although this section has not yet been commenced, it is important to make a reference to it because it will define the characteristics of “Special Care”, whereas the current provision does not. When the new Part IVA is commenced, section 23C will define “Special Care” as the provision to child of care which addresses his or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare, and his or her care requirements including medical and psychiatric assessment, examination, treatment and educational supervision.
12. At the conclusion of the trial, the defence solicitor applied for a dismissal on the basis that at the time of the charges, AB was either detained, or about to be detained, in a Special Care Unit as a result of his challenging behaviour and that it was precisely the escalation of his behaviour that facilitated a successful application to the High Court. His detention in a Special Care Unit acknowledged that his personal circumstances were of such magnitude that a less secure structured environment would not meet his needs. Therefore, the defence solicitor submitted for the Court to convict AB of the charges would amount to a double penalty. While not invoking the doctrine of double jeopardy, the defence stated that AB would be criminalised for conduct which is compounding the effects of his civil detention. The defence solicitor also submitted that the court must have a doubt as to the mens rea of the defendant while he was residing in a Special Care Unit and in the period leading up the successful application to the High Court.
13. The prosecution argued that this is a criminal trial and the charges and summons are entirely separate and distinct from the legal issues placed before the civil proceedings in the High Court. Both the High Court and the District Court are charged with fulfilling entirely different functions within the justice system and enjoy the presumption that they will uphold the constitutional and international rights of the child.
14. The legal test applied by the High Court in reaching its decision was based on the civil standard of proof, namely, “the balance of probabilities “. The application for the High Court Special Care application is moved by an agent of the State whose duty it is to look after the welfare of children at risk. The application is not made by a prosecuting authority on the basis of the lodging of a valid criminal complaint, such as a summons or charge sheet and a Special Care Order is not a punitive sanction.
15. In contrast the Children Court is charged with hearing criminal complaints validly placed before it by way of summons or charge sheet by the appropriate prosecuting authority. The Children Court does not have jurisdiction to deal with a child save on foot of the lodging of a valid criminal complaint. Once the complaint has been validly placed before the Court, it must adjudicate upon the matter and establish either guilt or innocence of the child. As the prosecutions against the child were validly placed before the Court it was therefore submitted that the Court must determine the prosecutions in due course of law.
16. The Children Court is at the end point of the juvenile justice system in Ireland. There is a well-established statutory scheme of police diversion and it is compulsory for all charges brought against children to be reviewed by the Director of the Diversion Programme before a charge is brought to court [sections 17-51 of the 2001 Act; section 158 of the Criminal Justice Act 2006]. However, there are some children for whom the scheme is ineffective or who have offended frequently or seriously, who end up in court. The Children Court is a division of the District Court [section 71 of the 2001 Act] and deals with all charges against children aged 12- 18 years of age in respect of minor offences and the vast majority of indictable offences where the child consents.
17. The current Irish jurisprudence is summarised by McGuinness J. (as she then was) in D.P.P. (Murphy) v. P.T 3 IR 254, where she held that the “real and primary issue” before the Children Court, as in all criminal proceedings, is “guilt or innocence” and while she found that the Court was “engaged in a bona fide effort to promote the welfare of P.T.”, there was, according to the judge on the facts in that case:
“a danger that in so doing the constitutional parameters relevant to a criminal trial may be ignored or unjustly postponed. In addition the pursuit of general assessments and wide ranging reports may well result in evidence being presented to the Court which would in the normal course of a trial be inadmissible.” [at page 270]
18. In HSE v. D.K. (a minor)  IEHC 488, MacMenamin J. held, having regard to the judgment of D.P.P. v. P.T., that “it is impermissible that there should be a hybrid form of civil/criminal proceedings in any form.”
19. The Children Court does not, however, ignore welfare concerns. Specific sections of the 2001 Act, also deal with welfare. For example, section 77 of the 2001 Act, permits the court, if it considers that the child before it is in need of care and protection, to adjourn proceedings and direct a Child and Family Welfare conference. The “best interests” of the child is also a significant part of sentencing in criminal cases concerning children as evidenced by the criteria set out in section 96 of the 2001 Act.
20. However, the issues of welfare do not override the rights of the child and the issues of guilt and innocence are dealt with separately to civil proceedings. Rights and welfare are a balancing exercise in the Children Court in that they must be approached on the basis that where there is a conflict between the rights of the child and the welfare of the child, the issue of rights prevail.
21. Helpful guidance and check lists in regards to children in care of the State and whom are also involved in the Criminal Justice System are provided by the Youth Justice Legal Centre [United Kingdom], the Howard League for Penal Reform, the UK Crown Prosecution Service Legal Guidance on Young Offenders [Offending Behaviour in Children Homes] and by the Children Homes: National Minimum Standards Guide [Department for Education, England] and the Irish Office of the Director of Public Prosecutions’ Guidelines for Prosecutions [4th Edition, October 2016, Chapter 5].
22. The effect of these guides is to promote the welfare of children and the prevention of reoffending. It achieves this by guarding against the unnecessary criminalisation of children and by ensuring that court disposal or the decision to prosecute should always be taken as a last resort so that informal measures and diversions are first explored and considered.
23. A referral to the Children Court should not be regarded as an automatic response to alleged offending behaviour by a child in a Special Care Unit, irrespective of the child’s history including, if relevant, criminal history. A referral to the Children Court is only appropriate where it is clearly required. In particular, a child’s challenging behaviour, prior criminal history and unsuitability of diversion should not alone be reasons for a referral to the Children Court.
Best Practice Model
24. While the decision to prosecute is one to be made by the Director of Public Prosecutions, it is important to elaborate on a number of points that have arisen in this case, which led to a significant but appropriate amount of court time and which may be of guidance for future cases in the Children Court:
(i) to ensure that that vulnerable children in a Special Care Unit have a fair trial;
(ii) that children, their families, victims and the public have confidence in the criminal justice system; and
(iii) to comply with the provisions of the 2001 Act and international best practice.
It is also important to state that these points are not exhaustive and that each child is a separate individual - that there is not a “one size fits all“ process for all children. It is also important to emphasise that these are merely guidelines arising out of this case and are not intended as a legislative substitute or binding on other courts.
25. A Special Care Unit should have an individual disciplinary policy incorporated into their Care Plan for each child and this should be tailored to each child, bearing in mind the child’s needs. The consequences of unacceptable behaviour should be clear to staff, the child and the child’s parent or guardian. The plan must also be appropriate to the child’s age and level of understanding. It should also recognise that individual circumstances such as the child’s medical and psychiatric history, educational and psychological needs and communication issues may affect a child’s behaviour.
26. There should be clear guidelines and agreement with An Garda Síochána [“the Gardaí”], the Child and Family Agency and the Care Unit as to when it is appropriate to involve the Gardaí.
27. A copy of the written policy, a statement from the Special Care Unit and how the policy has been applied to a particular incident should always be available for inspection.
28. All cases should be reviewed by the Garda Diversion Programme before the case is brought to court.
29. The reasons for the charge and unsuitability for the Garda Diversion Programme [if applicable] should be clearly recorded. The factors that determine how the public interest is satisfied in bringing the charges should also be clear and recorded.
30. The views of the child’s social workers counsellor or other relevant support person should be obtained as to the effect of the criminal justice intervention on the child, particularly where the child suffers from an illness or disorder.
31. The views of the victims and their willingness to attend court, give evidence, attend Family Conferences or other restorative justice or diversionary programme should be ascertained at an early stage and at a minimum prior to the case being set down for trial.
32. The views of the child and how this should be addressed should be ascertained. It is important to bear in mind that a child detained in a special care unit is, by definition, vulnerable and many children such as in this case will need special assistance.
33. Subject to the consent of the child’s defence lawyer any apology or reparation of the child should be available to the court. The matter should be discussed prior to court.
34. All aggravating and mitigating factors should be presented to the court and should be recorded. Aggravating factors, for example, include: the offence is violent or sexual, the victim is vulnerable and the offences are part of a series of serious offences. Mitigating factors, for example, include: the damage is minor, appropriate action is taken under the disciplinary procedures, genuine remorse appropriate to the age and maturity of the child is shown, apology to the victim, the offence is an isolated incident, the child was under stress and the child’s behaviour cannot be controlled by medication and diet.
35. The child’s medical history should be available but care should be taken that matters are not disclosed to the court which could prejudice a child’s rights without consent.
Non-Fatal Offences against the Persons Act 1997 (“the 1997 Act”)
36. The relevant provisions of the 1997 Act are:-
“2.- (1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly—
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact, without the consent of the other.
(2) In subsection (1) (a), “force” includes—
(a) application of heat, light, electric current, noise or any other form of energy, and
(b) application of matter in solid liquid or gaseous form.
(3) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person.
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both.
3. - (1) A person who assaults another causing him or her harm shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.”
37. In D.P.P. v. T.C.  IEDC 7, this court outlined the sentencing general principles in regards to children appearing in the Children Court. In particular, Part 9 of the 2001 Act deals with the powers of the court in relation to child offenders. Section 96 of the 2001 Act, as amended by section 136 of the Criminal Justice Act 2006 and S.I. No. 65 of 2007, provides as follows :
“96.—(1)Any court when dealing with children charged with offences shall have regard to—
(a) the principle that children have rights and freedom before the law equal to those enjoyed by adults and, in particular, a right to be heard and to participate in any proceedings of the court that can affect them, and
(b) the principle that criminal proceedings shall not be used solely to provide any assistance or service needed to care for or protect a child.
(2) Because it is desirable wherever possible—
(a) to allow the education, training or employment of children to proceed without interruption,
(b) to preserve and strengthen the relationship between children and their parents and other family members,
(c) to foster the ability of families to develop their own means of dealing with offending by their children, and
(d) to allow children reside in their own homes, any penalty imposed on a child for an offence should cause as little interference as possible with the child’s legitimate activities and pursuits, should take the form most likely to maintain and promote the development of the child and should take the least restrictive form that is appropriate in the circumstances; in particular, a period of detention should be imposed only as a measure of last resort.
(3) A court may take into consideration as mitigating factors a child’s age and level of maturity in determining the nature of any penalty imposed, unless the penalty is fixed by law.
(4) The penalty imposed on a child for an offence should be no greater than that which would be appropriate in the case of an adult who commits an offence of the same kind and may be less, where so provided for in this Part.
(5) When dealing with a child charged with an offence, a court shall have due regard to the child’s best interests, the interests of the victim of the offence and the protection of society.”
38. Section 143(1) of the 2001 Act provides that:
“[t]he court shall not make an order imposing a period of detention on a child unless it is satisfied that detention is the only suitable way of dealing with the child and that a place in a children detention school is available for him or her.”
39. This mirrors section 37 of the United Nations Convention on the Rights of the Child 2007 which provides:-
“(a) the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; and (b) no child shall be deprived of his or her liberty unlawful or arbitrarily.”
In jurisprudence practice the Children Court follows the guiding principles of Section 37 of the United Nations Convention on the Rights of the Child in interpreting Section 143 (1) of the 2001 Act.
40. In D.P.P. v. J.H. IECA 206, the Court of Appeal, per Mahon J. stated:
“[s]ection 143 is primarily designed to ensure that the detention of a child offender should be a sanction of last resort because such detention is likely to disrupt the child’s normal development and education and thereby hamper the opportunity for the child to achieve adulthood in what might be described as normal circumstances. Undoubtedly also, there is the concern that places of detention facilitate children getting into bad company and paving the way towards criminality in adulthood.” [at para. 13]
“… the philosophy of restricting sentencing powers in relation to young persons reflect both (a) society’s acceptance that young offenders are less responsible for their actions and therefore less culpable than adults and, (b) the recognition that in consequence, sentencing them should place greater emphasis on rehabilitation, and less on retribution and deterrents than in the case of adults …” [at para. 31]
Applying the law to the Facts
42. I find that the charges are validly before the court and I do not propose to dismiss them on the grounds of double penalty. AB has the capacity, and with the necessary assistance from his guardian, to follow the proceedings. He had a fair trial and he was found guilty on the specific charges mentioned in this judgement
43. I also find AB had the requisite mens rea to commit the offences alleged. Specifically in regards to section 2 of the 1997 Act, he had the intention to effect the assault on the victim and was aware of the consequences of his actions. In regards to section 3 of the 1997 Act, he had the intention of causing harm to his victims “with either an intentional or reckless assaults foreseeing the risk of that harm and ignoring same by culpably proceeding with his actions.“ [see Charleton, Criminal Law, (2nd Edition, Butterworth’s, 1999), at pages 714-5]
Sentencing in the Children Court
44. Judicial discretion is at the heart of a humane criminal justice system, but the latitude exercisable by a judge in the Children Court is subject to the 2001 Act and by Irish legal jurisprudence. By way of an example, in D.P.P. v. Keane IECA 118, Hedigan J. in the Court of Appeal recently stated that:
“… the element of deterrence that must be contained in every sentencing process demands that the courts make clear that of the type involved here will not be tolerated and will meet with the strongest response in sentencing.” [at para. 33]
45. Historically there was the rebuttable presumption that a child aged 7-14 years was doli incapax [“incapable of evil “] and the prosecution had to establish beyond reasonable doubt that the child committed the actus reus with the necessary mens rea at the time of the offence. It also had to be proved by clear evidence that the child knew it was seriously wrong: the facts of the offence alone were not sufficient to rebut the presumption. Even though the doli incapax presumption was abolished by section 52(3) of the 2001 Act and replaced with a new restriction on criminal proceedings for children aged between 12 and 14 years, childhood issues are a relevant factor for a judge in the Children Court in crafting an appropriate sentence for the child convicted of the offence.
46. Sentencing in the Children Court is not done in isolation and is dependent on many factors. On the one hand the court, in complying with the legislative and judicial requirements should, where possible, strive for consistency. On the other hand, the particular circumstances of a child frequently require an individualised response. Within this framework it is important to be realistic as to what the child is capable of and what can be achieved by a sentence. In reconciling the various issues, the court may apply a different type of sentence for similar crimes to different children but in doing so the court will explain its reasons in making that decision.
Family Welfare Conference
47. The Children Court cannot sentence a child on welfare grounds but it can take welfare concerns into account both during the proceedings and during the sentence hearing. Specifically the Children Court can direct the Child and Family Agency to convene a Family Welfare Conference under Part 2 and section 77 of the 2001 Act. Section 77 of the 2001 Act provides:
“(1) Where, in any proceedings in which a child is charged with an offence, it appears to the Court that it may be appropriate for a care order or a supervision order to be made under the Act of 1991 with respect to the child, the Court may, of its own motion or on the application of any person –
(a) adjourn the proceedings and direct the Health Service Executive to convene a family welfare conference in respect of the child, if in the Court’s view it is practicable for the Health Service Executive to hold such a conference having regard to the age of the child and his or her family and other circumstances.
(2) Where a family welfare conference has been held by the Health Service Executive pursuant to a direction under subsection (1)(a) –
(a) if the Health Service Executive applies under the Act of 1991 for a care order, a supervision order or a special care order with respect to the child, it shall inform the Court of the outcome of its application and of any other matter likely to be of assistance to the Court, or
(b) if it decides not to apply for any such order, it shall inform the Court of –
(i) its reasons for so deciding,
(ii) any service or assistance which it has provided, or intends to provide, for the child and his or her family, and
(c) any other action which it has taken, or intends to take, with respect to the child.
(3) The Court, on being informed by the Health Service Executive of the matters mentioned in subsection (2), may, if satisfied that it is appropriate to do so, dismiss the charge against the child on its merits.”
Legislation relating to this Sentence
48. Section 99 of the 2001 Act states:
“(1) Subject to subsections (2) and (3), where a court is satisfied of the guilt of a child, it—
(a) may in any case, and
(b) shall, where it is of opinion that the appropriate decision would be to impose a community sanction, detention (whether or not deferred under section 144) or detention and supervision, adjourn the proceedings, remand the child and request a probation and welfare officer to prepare a report in writing (a “probation officer’s report”) which—
(i) would assist the court in determining a suitable community sanction (if any) or another way of dealing with the child, and
(ii) would contain information on such matters as may be prescribed, including any information specifically requested by the court.
(2) The probation officer’s report shall, at the request of the court, indicate whether, and if so how, in his or her opinion any lack of care or control by the parents or guardian of the child concerned contributed to the behaviour which resulted in the child being found guilty of an offence.
(3) The court may, in addition, request that a victim impact report be furnished to it in respect of any victim of the child where it considers that such a report would assist it in dealing with the case.
(4) The court may decide not to request a probation officer’s report where—
(a) the penalty for the offence of which the child is guilty is fixed by law, or
(b) (i) the child was the subject of a probation officer’s report prepared not more than 2 years previously, (ii) the attitude of the child to, and the circumstances of, the offence or offences to which that report relates are similar to his or her attitude to, and the circumstances of, the offence of which the child has been found guilty, and (iii) the previous report is available to the court and the court is satisfied that the material in it is sufficient to enable it to deal with the case.
(5) Where a court requests a report under this section, it may at any time summon as a witness any person whose evidence in its opinion would assist it in dealing with the case.”
49. Section 78 of the 2001 Act states:
“(1) Where, in any proceedings in which a child is charged with an offence—
(a) the child accepts responsibility for his or her criminal behaviour, having had a reasonable opportunity to consult with his or her parents or guardian and obtained any legal advice sought by or on behalf of him or her,
(b) it appears to the Court that it is desirable that an action plan for the child should be formulated at a family conference, and
(c) the child and child’s parent or guardian, or members of the child’s family or relatives of the child who in the opinion of the Court could make a positive contribution at a family conference, agree to attend such a conference and to participate in its proceedings,
the Court may direct the probation and welfare service to arrange for the convening of a family conference in respect of the child and adjourn the proceedings until the conference has been held.
(2) The Court may direct that the conference consider such matters relating to the child as the Court considers appropriate.”
50. Section 98 of the 2001 Act states:
“Where a court is satisfied of the guilt of a child charged with an offence it may, without prejudice to its general powers and in accordance with this Part, reprimand the child or deal with the case by making one or more than one of the following orders:
(a) a conditional discharge order,
(b) an order that the child pay a fine or costs,
(c) an order that the parent or guardian be bound over,
(d) a compensation order,
(e) a parental supervision order,
(f) an order that the parent or guardian pay compensation,
(g) an order imposing a community sanction,
(h) an order (the making of which may be deferred pursuant to section 144) that the child be detained in a children detention school,
(i) a detention and supervision order.”
Applying the law to the Facts
51. The Probation Service by way of assistance to the court produced a comprehensive pre sanction Probation Report under section 99 of the 2001 Act. The court made substantial efforts in attempting to craft a suitable sentence to take into account the factors that would reflect the seriousness of the offence: the mitigating factors and the court’s obligations under section 96 of the 2001 Act to the child’s best interests, the interests of the victim and the protection of society. It was also structured to assist in the prevention of AB’s reoffending. The court does not consider a custodial sentence or the various variations of custody such as detention and supervision order [as per section 151 of the 2001 Act] as a suitable sentence for the child. Although there is difficulty in drafting a suitable alternative sentence to detention, the court does not accept that this difficulty would be sufficient grounds in imposing a custodial sentence.
52. Due to the nature of AB’s personal circumstances, it did not appear to the court that a Family Conference under section 78 of the 2001 Act or that a restorative type justice programme would be achievable by him.
53. In relation to the options under section 98 of the 2001 Act, the court was initially of the view that the only suitable option in this case was a Probation Bond, which would allow the AB to do specified work personally adapted for him based on his circumstances and which the Probation Service and the child had discussed in detail. However, very recently AB’s behaviour has seriously deteriorated and to such an extent that it isn’t possible for the AB and the Probation Service to work together. In addition some of the behaviour is of such significance that there are serious concerns for his well-being and mental health.
54. I therefore propose to make a direction under section 77 of the 2001 Act to the Child and Family Agency to convene a Family Welfare Conference and I propose to adjourn these proceedings to a date I have specified in Court.