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’),

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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.

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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.

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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).

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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.

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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.

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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.