The Developmental Nature Of Children and a Proposal for a Specialised Irish Youth Justice System
Author | John O'Connor |
Position | LLB, LLM (NUI), M. Litt (DUBL), D Prof (NTU), solicitor and judge of the Irish Circuit Court |
Pages | 30-45 |
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THE DEVELOPMENTAL NATURE OF
CHILDREN AND A PROPOSAL FOR A
SPECIALISED IRISH YOUTH JUSTICE SYSTEM.
Abstract: This article provides an insight into one aspect of the Irish juvenile justice system, namely the
developmental nature of children and young persons who appear before the courts. In doing so it observes
current judicial practice, both from the perspective of judges, and through the lens of young people’s probation
officers (‘YPPO’), child offenders and child victims. It acknowledges the importance of international treaties
such as the UN Convention on the Rights of the Child (‘UNCRC’),
1
and child friendly best practice as
envisaged at the European regional level.
2
However, it also acknowledges the Irish constitutional position: the
Oireachtas determines whether an international agreement has any effect in domestic law.
3
Therefore, this
article moves beyond the theoretical concept of the implementation of international treaties into domestic law
by challenging the Irish juvenile sentencing system with a reform agenda that is not entirely dependent on the
Oireachtas. In doing so it, it explores innovative sentencing case law in the USA, New Zealand and in
England.
Author: Dr John O’Connor LLB, LLM (NUI), M. Litt (DUBL), D Prof (NTU), solicitor and judge
of the Irish Circuit Court.
Introduction
This article explores some of the findings from the author’s recent professional doctorate on
the sentencing of child and adolescent sexual offences in the Irish Youth Justice System.
4
The doctorate incorporated a heavy emphasis on practice-based research and praxis, in the
sense of developing legal practice. Its aim was to provide a bridge between academic theory
and professional practice, by providing insights into how the yo uth justice system might
address the justice and welfare dichotomy in sentencing. It entailed a methodology which
respected the existing judicial doctrinal approach to sentencing but also advocated best
practice by reference to international treaties, scientific developments and rights compliant
youth judicial systems. It therefore needed a comprehensive methodology to enable research
questions to be addressed which was achieved by adopting a combination of a legal doctrinal
model as its primary model, with socio-legal and comparative analysis as subsidiary or
complimentary processes. This methodology recognised that new issues are constantly
emerging such as, for example, neuroscientific and behaviour research and also
acknowledged that new academic studies and judicial thinking create a greater understanding
of child and adolescent behaviour.
During the course of the research, the author explored how existing Irish judges approached
the competing priorities in youth justice sentencing by way of semi structured interviews with
18 practising judges.
5
These findings revealed that judges although emphatic to children in
conflict with the law were heavily dependent on pre-sanction reports from probation officers
1
United Nations Convention on the Rights of the Child (adopted 20 November 1989, enter ed into force 2
September 1990) UNTS 1577 (UNCRC).
2
Committee of Ministers of the Council of Europe, Guidelines of the Committee of Ministers of the Coun cil of Europe
on child-friendly justice (17 November 2010).
3
Article 29.6°.
4
John O’Connor, ‘The Sentencing of Child and Adolescent Sexual Offences in the Irish Youth Justice
System: Judicial Discretion and the Justice/Welfare Dichotomy’ (DProf, Nottingham Trent U niversity 2021).
5
John O’Connor, ‘Document 3: A critical examination of the Irish judges’ assessment of justice
and welfare issues with particular regard to sexual offences’ (DProf, Nottingham Trent University 2019)
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in formulating sentences for children who sexually offend. In light of this conclusion, a
sample of 12 Young People Probation Officers (YPPOs) were interviewed (via focus groups
and telephone).
6
Findings revealed that although YPPOs are highly specialised and trained,
there were gaps in assessing complex development needs in sexual abuse cases arising out of
childhood trauma and the child offenders own sexual abuse.
7
Calls for guidance for the
judiciary were loud in the research conducted. Against this background, the thesis analysed
a detailed study of sentencing case law. However, all trial courts in Ireland (as opposed to
appellate courts) furnish oral sentencing decisions. Therefore, the study was supplemented
by a selective examination of transcripts of sentencing decisions in the Central Criminal
Court.
Dualistic legal system in Ireland
At the outset it is acknowledged that while the incorporation of international treaties into
Irish law represents a utopian ideal, the reality is represented by dualism as expressed by
Article 29.6° of the Irish Constitution. This provides that the Oireachtas (Irish Legislature)
determines whether an international agreement has any legal effect in domestic law.
Therefore, dualism potentially creates a significant gap by not incorporating all of the
provisions that apply to the international framework of best practice into domestic law.
However this realism also recognises that the UNCRC and international treaties are not
autonomous vectors of change. Therefore, this article goes beyond the theoretical concept
of the implementation of international treaties into domestic law by challenging the existing
Irish juvenile sentencing system with a reform agenda that is not entirely dependent on the
Oireachtas.
Emerging Interdisciplinary Research
Societal changes have meant that 21st century adolescents grow up in a much more mobile
and globalised world than their parents. This is amplified by contemporary technologies such
as the internet and social media, where children can negotiate their social identities but can
also have risks in relation to exposure to exploitation, extreme pornography and peer abuse.
However, while technology, such as mobile phones, may be the most visible aspect of
contemporary changes, the reality is that it is our recent understanding of neurological brain
development, which is the most dramatic change in assessing how the judicial system should
deal with children in conflict with the law. Effectively, changes to the brain can now be
accurately detected from Magnetic Resonance Imaging (MRI) which was largely unknown
prior to this century. MRI has shown the prefrontal cortex is developing dramatically in
teenagers and young adults. The implications for assessing risk behaviour is profound. MRI
imaging takes a snapshot or a photograph, at a high resolution, of the inside of the human
brain. The prefrontal cortex is involved in a whole range of high-level cognitive functions,
like decision-making and inhibiting inappropriate behaviour. Other functions include
involvement in social interaction, understanding other people and self-awareness.
8
It is also
accepted that the environment and trauma, or in some cases multiple traumas, can and does
shape the developing adolescent brain. For judicial sentencing it has practical implications
on how best to deal with both rehabilitation and therapeutic intervention aspects of children
in conflict with the law.
6
John O’Connor, ‘Document 3: A critical examination of the Irish judges’ assessment of justice
and welfare issues with particular regard to sexual offences’ (DProf, Nottingham Trent University 2019).
7
ibid, section 1.2.1
8
Sarah-Jayne Blakemore, ‘Development of the social brain in adolescence ’ (2012) 105(3) Journal of the Royal
Society of Medicine 111.
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