Committee Reports::Report No. 13 - Liability of Parents for Contributing to the Delinquency of their Children::01 November, 1986::Report

1.1The Select Committee is aware of, and shares, the general public concern at the level of crime, lawlessness and vandalism which is attributable to young persons. The Select Committee is very conscious of the need to find practical solutions to this serious problem and decided to examine the issue and report to the Dail thereon.

1.2In so far as indictable crimes are concerned, the Garda Commissioner’s Annual Report on Crime provides information in relation to, inter alia, the number of young persons convicted for indictable offences. The 1985 Report shows that the number of persons under 14 convicted of an offence amounted to 386 while the number aged between 14 and 17 totalled 1,679. Juveniles (persons under 17 years of age) accounted for 13.5% of the total number of persons convicted of an indictable offence.

1.3In addition to the indictable crimes contained in the Commissioner’s Report, children and young persons are, and have been, engaged in many other types of crimes which are classified as less serious. These crimes are, however, a major issue for the general public which suffers from widespread vandalism and hooliganism. The Committee considers that it is important to differentiate between the various types of criminal activity in which children and young persons engage. On the one hand, there are the serious crimes such as theft, burglary and assaults. On the other, the public are the victims of many acts of vandalism and malicious damage, of general lawlessness and hooliganism which at its worst is manifested in instances of elderly people being afraid to leave their homes for fear of being attacked or robbed.

1.4The problem of vandalism and malicious damage is principally an urban one and has become more widespread in recent years. The evidence of such acts of vandalism is very obvious for all to see. There are regular reports of malicious damage to schools, churches and community centres; vandalism in public places, such as the damage of trees and shrubs, and scrawling on walls, roads and footpaths, as well as damage to private property. There is, however, no statistical data as to the precise extent of vandalism and malicious damage. This arises in part no doubt from a reluctance on the part of many people to report minor instances of vandalism. However, the fact that such activities go unreported is no indication that the public is not concerned. Quite the contrary in fact. It is the accumulation of many instances of relatively minor offences which forms and colours public opinion as to the crime position in their area or in the country as a whole. This is the main type of contact that exists between the general public and criminal activity. The number of people directly affected by serious criminal activity is relatively small compared to the numbers affected by vandalism, malicious damage and hooliganism.

1.5The problem of crime, lawlessness and vandalism by children and young persons is alarming and is out of control in some areas. The situation has deteriorated for too long and the problem is different from the problems of vandalism and lawlessness which have existed in the past. The present wave of lawlessness arises in a situation where there has been a major change in attitudes towards responsibility and authority. We have reached a situation where we are faced with a breakdown in discipline and in respect for authority. This process has been accompanied by an increased tolerance towards delinquent behaviour. However, the situation has now deteriorated to such an extent that it can no longer be tolerated and the process must be reversed as a matter of urgency.

1.6When considering the increase which has taken place in delinquent behaviour, there are two aspects to the problem which need to be examined, namely, why has there been such a movement and what can be done to halt the slide towards a higher level of criminal activity and to reduce the incidence of lawlessness and vandalism. The Committee considers that the breakdown in discipline and an increased lack of respect for authority are major factors contributing to increased lawlessness. The stabilising influence of the churches and schools has declined in recent years. At a practical level this may be seen from the major problem faced by school teachers and managers arising from disciplinary matters in schools. This problem has become particularly acute in recent years since the abolition of disciplinary sanctions - corporal punishment - without any other sanctions being provided. School teachers and authorities act in loco parentis. As the centre of authority for children attending school they should be able to effectively exercise their authority. There is an urgent need to provide effective sanctions for breaches of discipline. There is a very real risk that society will create a climate where authority becomes meaningless and respect for authority becomes a thing of the past.

1.7When considering what can be done about the current prevailing lawlessness by young persons, the question frequently arises as to the position and responsibility of parents for the actions of their children and young persons. This is particularly relevant in the case of vandalism, malicious damage and hooliganism, where very often damage is caused by children and young persons out late at night and obviously not being subjected to parental control. There is no doubt but that the primary responsibility for children and young persons lies with parents. This responsibility arises not only in the home, but also while their children are at school or in the community.

1.8What responsibility can be put on parents when their children come into conflict with the law? The Children Act, 1908 provides that parents may be ordered to pay a fine, damages or costs, unless the court is satisfied they have not conduced to the commission of the offence by neglecting to exercise due care of the child or young person. The Committee was informed by the Department of Justice that it had advised the Department of Health to examine the constitutionality of this provision. The Committee was very concerned about the extent of the problem, which is estimated to cost £20 million per annum, but which has an impact on society which cannot be measured in financial terms.

1.9The Committee decided to examine this question and to prepare a Report for the Dail. From the point of view of the community the problem is how to deal effectively with the present increased lawlessness and reduce the level of vandalism. The Select Committee considers this issue and also the types of sanctions and penalties that are appropriate now for children and also for parents who neglect to control their children.

1.10The Committee decided to engage the services of Mr. Donagh McDonagh B.L., to assist it in this examination and would like to express its gratitude to Mr. McDonagh for his comprehensive statement of the law and for his research and advices in this area.

2. Recommendations of the Committee

2.1The Select Committee is very concerned about the unprecedented levels of vandalism, malicious damage and hooliganism carried out by young persons. This high level of delinquency affects all levels of society and has had the effect of creating a siege mentality in certain sectors of the community, particularly the elderly.

2.2The increasing incidence of vandalism, for example, writing on walls and roadways, malicious damage to schools, community centres, churches and to public and private property, has been accompanied by a loss of respect for authority and a decline in the influence of the authority symbols in society. There has also been a withdrawal of supervision from many areas of the community, for example, shopping areas close in the evening and are vacant until the next morning. Such lack of supervision creates an opportunity for vandalism and hooliganism which can often be the starting point for involvement by persons in more serious forms of criminal activity. This lack of supervision exists also in the home, where parents do not take their critical role in this regard as seriously as they should and exercise the level of control which young persons need if they are to become responsible members of society.

2.3The Select Committee is aware that the public is no longer prepared to put up with the present levels of crime and vandalism and that there is a demand for action to be taken to restore normality to society. People should be free to go about their daily business without having to worry if they are going to be the victims of vandalism and hooliganism. There is an urgent need to tackle this problem and it was with this in view that the Committee undertook this examination and makes the recommendations contained in this section of the report.

2.4The Select Committee was advised that parents can be held legally responsible for the actions of their children. There are no provisions in the present legislation which makes parents directly responsible. Indirect responsibility is provided for in the 1908 Children Act which provides for the imposition of the punishment on the parent where they have failed to exercise due care of the child or young person.

2.5The majority of the States in America have statutes - commonly called “contributing statutes” - holding parents criminally responsible for contributing to the delinquency of their children.

2.6The Select Committee recommends that parents/guardians should be accountable to the courts if they wilfully contribute to the delinquency of their children. This question of accountability can arise in two ways, namely,

(i)where a child is being charged in a court with an offence. The Committee recommends that it should be incumbent on a parent/guardian to be present in court when their child is being charged in the court. A copy of the summons for a child should be served on the parent/guardian who should be compelled to attend at the court. At this stage, the parent is not a defendant in the proceedings. However, if in the course of the proceedings against the child, it is shown that there is serious blame attaching to the parent, it should be open to the judge to refer the matter for consideration as to whether a prosecution for wilfully contributing to the delinquency of the child should be instituted.

(ii)where the child has become involved in criminal activity but not been charged with an offence, for example, a child placed under supervision of a Juvenile Liaison Officer. In this type of situation, it should be open to the DPP to institute proceedings for such failure on the part of the parents. There should be a preliminary examination by a District Justice of the evidence available and on which it is proposed to prosecute the parent. The District Justice should be empowered to seek reports from the Probation and Welfare Service, before arriving at a decision as to whether or not to send the case forward for hearing.

The Committee recognises that, despite the best efforts of parents/ guardians, some children and young persons will become involved in criminal activity. The Committee’s recommendation is not aimed at such parents, but rather at parents who encourage, or wilfully neglect to control, their children becoming involved in criminal activities.

2.7The Constitution confers certain rights on parents, for example, in relation to education, but it does not say anything about the duties of parents towards their children. The duties parents have towards their children should be specified before direct responsibility is placed on parents for their children’s actions. The duties of parents would include, for example, the duty to feed, clothe, shelter, educate, including social education, and control. In the event of a child showing anti-social behaviour and committing criminal offences, the parents could be answerable to the courts by, for example, statutes similar to the Contributing Statutes or by charging the parent/parents as accessories. The Select Committee understands that there is some controversy as to the effectiveness of the contributing statutes. This question would need more detailed examination before that option could be adopted. What is required is a mechanism which makes parents realise that they have duties towards their children and that they must exercise those duties for the benefit of society.

2.8In the case of children who get into trouble with the law, there is a need to strengthen the services available to the courts and to provide greater options for dealing with young offenders. The Committee has identified three particular ways in which the existing facilities for dealing with young offenders could be improved:-

(i)There is a need for an expanded Probation and Welfare Service to assist the Courts. This Service provides a very valuable contribution at present, but a strengthened service would be able to undertake a greater number of cases and provide extra time to help and assist offenders. At a practical level, the Committee has been considering the merits of an Auto-Project and has recently received from the Probation and Welfare Officer Branch of UPTCS, a proposal for an Auto-Project. This and other similar proposals appear to offer a constructive approach to young persons found guilty of offences. In this regard, the Committee also had a meeting with a group - Adventure Sports Project - involved in the Sean McDermott Street area of Dublin. The Committee recommends that funding should be provided to enable this group to proceed with its activities in providing an auto-project in this area. This group has been operating on a voluntary project for a few years but lack of funding is hampering its operations.

(ii)An expanded Juvenile Liaison Officer (JLO) Scheme. The present Scheme has a total of 79 members of An Garda Siochana attaching to it dealing with young offenders. This Scheme deals with persons who are regarded as potential delinquents. The aim of the service is to befriend people and to try and help them out of trouble. The JLO service is also very much occupied with visits to schools and this is an activity which could usefully be greatly expanded.

(iii)There should be greater resort to the use of restitution. Restitution may be voluntary as where the offender voluntarily agrees to make restitution for the damage caused. Alternatively, it may be imposed by the court. Restitution could be ordered, for example, where an offender has been found guilty of causing malicious damage. Payment of restitution would be ordered by the court, or failing payment, a fine in excess of the amount of restitution would be imposed.

2.9Despite the introduction of direct parental responsibility and the strengthening of the resources available to the courts to deal with young offenders, the Committee recognises that special additional measures will be required to deal with some seriously deprived and disadvantaged children. Where parents faild to fulfill their duties, society has an obligation to fill the void that exists. Where this happens, the courts should appoint a Family Liaison Officer who would work in very close contact with the child and the parents. While the parents would retain custody, the Family Liaison Officer would have a major role to play in seeing to the care and welfare of the child.

2.10Any such committal to a Liaison Officer would entail a requirement to attend at special schools and engage in supervised extra-curricular activity. This would require the establishment of a small number of non-residential special schools, with a wide variety of educational courses on offer, a low teacher-pupil ratio and a commitment to provide facilities outside of the normal school system. This involves a recognition that the exam-orientated educational system is not appropriate for a certain number of young offenders and that society should recognise that need and act accordingly. This proposal is very much on the lines of the Youth Encounter Projects which were set up in Dublin, Cork and Limerick and which provide an integrated school and out-of-school programme. The school programme assists in developing basic educational skills while the out-of-school programme includes provision for recreational and cultural pursuits as well as tours and outings. The resources devoted to such a programme will be better spent than the cost of damage caused by malicious acts, of custodial accommodation, and perhaps, eventually a prison sentence. What is needed is a radical approach to the problem of dealing with a small number of young delinquent offenders who lack the normal controls that exist in society, yet who must be members of that society.

2.11There is a need for close liaison between the School Attendance Officers, the Juvenile Liaison Officers, the Probation and Welfare Service and the Family Liaison Officers. This is necessary to identify, at an early stage, youngsters who may be heading towards delinquency by not attending at school. The Family Liaison Officer should have a major role to play in monitoring and assisting in the future development of such youngsters.

2.12A major preventative measure for young persons is the provision of employment/apprenticeship. There can be no doubt but that the absence of work and apprenticeship opportunities and the discipline arising from the work ethic is a major contributing factor to juvenile delinquency. The involvement with society, which work brings to young persons, has a stabilising and a socialising influence on those persons.

3. Crime, Lawlessness and Vandalism

3.1The Committee considers that it is necessary to examine and to differentiate between serious crime, general lawlessness and vandalism. Each of these aspects of criminal behaviour has a different impact on society and may more appropriately be tackled by society by adopting differing solutions. For example, vandalism, such as breaking public trees or writing on walls, is totally different from armed robbery, burglary or assault and a different approach should be used in dealing with such offenders.

3.2It will be useful at this stage to define the term “crime”. A “true crime” is typified by commonly known offences such as robbery and burglary and is defined by one American Commentator as:-

“A voluntary and intentional violation by commission or omission, by a legally competent person, of a legal duty that commands or prohibits an act for the protection of society, punishable by judicial proceedings in the name of the State”.

(i)Actus Reus, an act or omission,

(ii)Mens Rea or intent to commit the act,

(iii)Concurrence of the Act with intent,

(iv)Causation or harm resulting from the Act, and

(v)Harm.

3.4In addition to liability for a “true crime”, a person may be held liable for offences of “strict liability” and “vicarious liability”. In “strict liability”, the accused is held liable whether he intended to commit a wrongful act or not, e.g. driving while driving licence has expired, inadvertent sale of adulterated foods. This type of offence differs from the true crime in that the usual requirement of a mens rea need not be satisfied. A person is held liable for the wrongful acts of another person under the concept of “vicarious liability”. Vicarious liability cannot be the basis of true crime because the mens rea requirement for criminal responsibility of one person cannot be satisfied by the state of mind of another.

3.5Apart from the serious crimes, the community has been subjected to an unprecedented rate of petty crime, malicious damage, vandalism and hooliganism. Persons cannot be charged directly within the general heading of vandalism or hooliganism, but rather with the specific offence committed, for example, malicious damage. Hooliganism, vandalism or behaviour is only criminal where it constitutes a crime of a major or a minor nature.

4. The present position regarding the criminal responsibility of young persons

4.1The assumption that the average man realises and intends the consequences of his acts is the basis of the legal doctrine of absolute liability. It follows that, after the notion was accepted that moral delinquency was a prerequisite of criminal guilt, a realisation of consequences could not in every case be imputed to very young children. Originally, it was held that a child could not be guilty of crime unless it had reached the age of 12. Later, the law became more severe and the common law fixed the age for the termination of immunity at 7 years of age. Until that age no evidence of maturity would avail for it was an irrebuttable presumption of law that the child had no adequate discretion or understanding. Hence the conclusive presumption that no child under the age of 7 years can be guilty of an offence (1 Hale, P.C. 27, Marsh -v- Loader (1863) 14 CB (NS) 535).

4.2In the United Kingdom, this age of immunity was raised from 7 (as at common law) to 8 by the Children and Young Persons Act, 1933; this age was further raised to 10 by the Children and Young Persons Act, 1963. The 1963 Act had followed upon the recommendations of the Ingleby Committee [Cmnd. 1911 (1960)] which had recommended that the age of criminal responsibility be raised to 12. No equivalent Statutes have been passed in Ireland. However, an amendment restricting provisions of the Criminal Justice Act, 1984, to persons over 12 years of age, was adopted by the Oireachtas.

4.3Infants, or Minors as they are known since the passage of the Age of Majority Act 1981, are those who are not of full age and capacity (excluding unsoundness of mind). In the context of criminal liability minors are divided into three categories:-

(1)Those under the age of 7 years,

(2)Those between the ages of 7 and 15,

(3)Those over 15.

Those under the age of seven years.

4.4This is the first category of minor and all children under seven years of age are entirely exempt from criminal responsibility in all circumstances. The rule is commonly stated as a conclusive presumption that the child is doli incapax. Even though there may be the clearest evidence that the child caused an actus reus with mens rea, he cannot be convicted once it appears that he had not, at the time of the act or omission, attained the age of seven years. Nothing, therefore, that he does can make him/her liable to be punished by a Criminal Court; on the contrary, a precedent has been set whereby a child of six, who was arrested for a crime, obtained damages from the arrester (Marsh -v- Loader, Supra) and goods taken by a child under seven are not stolen and therefore cannot be received (Walters -v- Lunt (1951) 2 All E.R. 645).

Those between the ages of seven and fifteen.

4.5In this category a minor is prima facie presumed incapable of knowing right from wrong or of forming a wrongful or felonious intent. This presumption can be rebutted; if proof can be given of his being able to distinguish between right and wrong and that he had a mischevious discretion, he can be convicted.

4.6At this age the infant/minor is presumed to be doli incapax but the presumption is no longer conclusive, and may be rebutted by evidence. The presumption of innocence is so strong that in this age group clear proof of the mental condition is necessary. The law requires strict affirmative proof that the child, at the time of the offence had the mens rea, the guilty knowledge that he/she was doing wrong (R -v- Smith (1845) 1 Cox 260; R -v- Owen (1830) 2 C & P 236); what amounts to guilty knowledge must vary with the circumstances of each case. A Jury trying a case of this nature is asked not only the ordinary question “did he do it” but the additional one, “had he guilty knowledge that he was doing wrong”.

4.7The Summary Jurisdiction Over Children (Ireland) Act, 1884 Section 9 as amended provides:-

“The expression “child” means a person who in the opinion of the Court before whom he is brought is under the age of 15 years”.

“For the purposes of this Act unless the context otherwise requires, the expression “child” means a person under the age of 15 years”.

4.8There is an irrebuttable presumption of law that a boy under the age of fourteen years is incapable of committing rape (R -v- Groombridge (1836) 7 C & P 582). This presumption has been held to extend to assault with intent to ravish (R -v- Philips (1839) 8 C & P 736). However, subject to guilty knowledge being proved, he can be guilty as principal in the second degree of rape, i.e. by aiding and abetting (R -v- Eldershaw, (1828) 3 C & P 396). While the language may be archaic and the cases very old, the principals laid down are still valid irrespective of the changes in statute law which have not affected these presumptions. As regards rape, the law presumes a person under 14 years of age to be impotent as well as wanting in discretion. No evidence is admissible to show that the accused had arrived at the full state of puberty and could commit the offence.

Over 15 years

4.9It appears that at 15 a person comes under full criminal responsibility and is no different in this regard from an adult. A trial of a person over fifteen years of age will require no special considerations as in the case of a person under 15. The age grouping of fifteen to seventeen is retained for the purposes of the method of trial (e.g. summary disposal of indictable offences) in certain circumstances and is relevant when a Court considers sentence both with regard to the extent of sentence, the kind of sentence (e.g. detention, imprisonment) and the place of detention. These matters do not impinge on the full criminal responsibility of persons over fifteen and only become relevant in a trial, after guilt has been established by either a Judge sitting alone or with a Jury.

“The expression “young person” means a person who is fifteen years of age or upwards and under the age of seventeen”.

The Summary Jurisdiction Over Children (Ireland) Act, 1884 Section 8 as amended provides:

“The expression “young person” means a person who in the opinion of the Court before which he is brought is over the age of fifteen years and under the age of seventeen years”.

Juvenile Offender

4.11The term “juvenile offender” is used in the Children Act 1908 Part V as a heading, but its use is as a generic term embracing the “child” and “young persons”. The term is not used in any of the ensuing sections of the Act. Section 111 states that a court of summary jurisdiction when hearing charges against children or young persons “is in this Act referred to as a juvenile court”.

Doli incapax

“The presumption of doli incapax is a presumption of law to the effect that a person under the age of fourteen is incapable of forming the necessary intent to commit a crime. The presumption is compelling, but rebuttable. The burden of proving mens rea is normally, of course, in any event upon the prosecution, but in the case of an accused of fourteen or more the prosecution is assisted in the discharge of this burden by the presumption of fact that a person intends the natural consequences of his acts. However, if the accused is shown to have been under fourteen at the time of the crime charged, the prosecution may be faced with a presumption of doli incapax which can be rebutted only by the equivalent of proof beyond reasonable doubt.

If the accused is under ten, he is irrebuttably presumed not to be guilty. It is to be noted that the presumed fact here is the absence of guilt, whereas the presumed fact in the common law presumption of doli incapax referred to above is seemingly only incapacity to form the requisite mens rea”.

The ages referred to are laid down by Statute in the United Kingdom. There the age of majority was raised from seven under common law to eight by The Children and Young Persons Act, 1933 Section 5, and to ten by The Children and Young Persons Act, 1963 Section 16 (1).

5.The age of criminal responsibility

5.1The Committee considered that the question of raising the age of criminal responsibility from seven was outside the scope of the present report and would require further detailed consideration.

5.2The question as to what is the meaning of the phrase “age of criminal responsibility” is something which would require consideration before proceeding to consider raising that age.

5.3As will be seen from section 4 above, minors under seven are exempt entirely from criminal responsibility in all circumstances. In the case of minors aged between seven and fifteen years, there is a presumption that they are incapable of committing a crime and this presumption can only be rebutted by the equivalent of proof beyond reasonable doubt that the minor clearly understood that he was doing wrong. The normal presumption of fact that a person intends the natural and probable consequences of his acts, which presumption applies to minors over 14 years and to adults, does not apply to minors under 14 years.

5.4It is clear that the phrase “age of criminal responsibility” as used in Ireland, does not signify the age at which a person becomes liable to the ordinary or full penalties of the law. In that sense, the age of criminal responsibility in Ireland is difficult to state, but it is certainly higher than seven.

5.5It is relevant to state that the capacity to commit crime, do evil and contract guilt is not so much measured by years and days as by the strength of the delinquent’s understanding and judgement.

5.6Any change in the age of criminal responsibility from the point of view of the administration of justice vis-a-vis the courts will have little or no effect.

6. Existing provisions making parents liable for the criminal actions of their children

“(1) Where a child or young person is charged before any Court with an offence for the commission of which a fine, damages, or costs may be imposed, and the Court is of opinion that the case would best be met by the imposition of fine, damages, or costs whether with or without any other punishment, the Court may in any case, and shall if the offender is a child, order that the fine, damages, or costs awarded be paid by the parent or guardian of the child or young person instead of by the child or young person, unless the Court is satisfied that the parent or guardian cannot be found or that he has not conduced to the commission of the offence by neglecting to exercise due care of the child or young person.

(2) Where a child or young person is charged with any offence, the Court may order his parent or guardian to give security for his good behaviour.

(3) Where a Court of Summary Jurisdiction thinks that a charge against a child or young person is proved, the Court may make an order on the parent or guardian under this Section for the payment of damages or costs or requiring him to give security for good behaviour, without proceeding to the conviction of the child or young person.

(4) An Order under this Section may be made against a parent or guardian who, having been required to attend, has failed to do so, but, save as aforesaid, no such Order shall be made without giving the parent guardian an opportunity of being heard.

(5) Any sums imposed and ordered to paid by a parent or guardian under this section, or on forfeiture of any such security as aforesaid, may be recovered from him by distress or imprisonment in like manner as if the Order had been made on the conviction of the parent or guardian of the offence with which the child or young person was charged.

(6) A parent or guardian may appeal against an Order under this Section etc.”.

6.2Section 107 of the same Statute provides various punishments ranging from entering into recognizances to supervision, care, industrial schooling, fining or:

“(i) By ordering the parent or guardian of the offender to pay a fine, damages or costs; or

(ii) By ordering the parent or guardian of the offender to give security for his good behaviour”

to detention or imprisonment or otherwise by dealing with the case in any other manner in which it may be legally dealt with.

6.3A person who is not a principal or accessory in some degree can not be found guilty of the criminal act of another. The Committee was advised that the concept is so alien to the Common Law that no reference has been found which would disclose any other viewpoint and any such view would do violence to the concept that one is responsible for the natural and probable consequences of one’s own acts. The situation is naturally different if one is a principal or an accessory.

6.4A principal in the first degree is one who is the actor or actual perpetrator of the act. Principals in the second degree are those who are present at the commission of the offence, and aid and abet its commission. An accessory before the fact is one who, although absent at the time the felony was committed, “doth yet procure counsel, command or abet another to commit a felony” (1 Hale 615). An accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon.

6.5Section 56 of the Road Traffic Act, 1961 provides that a person shall not use in a public place a mechanically propelled vehicle unless it is insured and a person who so uses a vehicle commits an offence. If the insurer is not the owner, the owner also commits an offence, unless he can show it was being used without his consent and he had taken all reasonable precautions to prevent its use, or it was being used by a servant in contravention of his order. This section seemed to attribute criminal liability to the owner for the act of the user but it is necessary, in order to convict the owner, to demonstrate that he is an accessory before the fact. The Committee was advised that this Section does not attribute strict criminal liability to the owner for the act of the user, but it does place on the owner the onus of showing that:-

(a)the vehicle was being used without his consent, and

(b)that he had taken all reasonable precautions to prevent it being used, and

(c)that it was being used by his servant acting in the contravention of his order.

6.6Similarly in relation to Section 99 and Section 107 of the Children Act, no criminal guilt attaches to the parent or guardian for the act of the juvenile offender. The parental element of those provisions is in relation to punishment only. It can be argued that the method of punishment, though not so stated, is a recognition of the accountability of the parent/guardian for the act of the juvenile. The parental accountability/responsibility is avoided by the parent or guardian if the Court is satisfied that he has not conduced to the commission of the offence or neglected to exercise due care of the child or young person. Section 98(4) defines the parent or guardian who is required to be in attendance for such proceedings as “the parent or guardian having the actual possession and control of the child or young person”.

6.7There are no provisions which make the parent directly responsible for the wrongful criminal act of the child or young person. Indirect responsibility is recognised and dealt with by the provisions mentioned, which provide for the imposition of the punishment on the parent where they have failed to exercise due care of the child or young person. This is further illustrated by the sections of the Act which provide for contribution by parents to the maintenance and upkeep of their offspring who have been committed to terms of correction: Sections 22(2), 75(1) and 82(1).

6.8The question of school attendance and parental responsibility for the attendance of children is a matter of serious concern. It frequently happens that the path to crime and vandalism begins with non-attendance at school. The enforcement of school attendance is a matter for School Attendance Committees in Dublin, Cork and Waterford, who employ School Attendance Officers. In the rest of the country, the matter is in the hands of the Gardai. The Committee considers that non-attendance at school can be an indication of general delinquent behaviour and greater emphasis needs to be placed on this service. Absence from school may also be an indication as to the unsuitability of a conventional programme of education. In such situations the importance of the Youth Encounter Projects, with their school and out-of-school programmes, needs to be emphasised.

7. Position abroad

United States of America

7.1Most of the States in the United States of America have statutes holding parents criminally responsible for contributing to the delinquency of their children. These statutes are commonly called “contributing statutes”.

-who habitually visits, without parent or guardian, a place where spiritous, vinous or malt liquors are sold, bartered or given away.

-who persistently refuses to obey the reasonable orders or directions of his parent or guardian.

-who is incorrigible, that is, beyond the control and power of his parents, guardian or custodian by reason of the vicious conduct or nature of the person.

-who habitually visits, without parent or guardian, a billiard room or pool hall.

-who habitually uses intoxicating liquors as a beverage or habitually smokes cigarettes or uses drugs.

“Delinquent person” includes any person under the age of 18 years who violates a law of this state, or an ordinance of a County, City or Town defining crime.

“Delinquent” means any act which tends to debase or injure the morals, health or welfare of the child.

A.R.S. 13/822 Contributing to Delinquency and Dependancy: Punishment: Procedure:

A person who by any act causes, encourages or contributes to the dependancy or delinquency of a child, as defined by 13/821, or who for any cause is responsible therefore, is guilty of a misdemeanour punishable by a fine not to exceed $350, by imprisonment in the County Jail not to exceed one year, or both.

And when the charge concerns the delinquency of a child or children, the offence for convenience may be termed “contributory delinquency”.”

7.3The constitutional validity of the statute was tested in Loveland -v- State, 86P2d942 (1939) and the Court held that the Law was “constitutional as a valid exercise of legislative power and as being capable of certain enforcements”.

7.4The contributing Statute in New York provides that a parent can be prosecuted in he “fails or refuses to exercise reasonable diligence in the control of his child to prevent him from becoming abused, neglected, delinquent, truant, incorrigible, ungovernable, or habitually disobedient”.

7.5An Ohio Statute declares that a parent has the “power” to control his child and will be punished if he has “failed or neglected to subject the child to reasonable parental control and authority”.

7.6The Californian Contribution Statute applies to “every person who commits an act or omits the performance of a duty, which act or omission causes or tends to cause or encourage” a child to become delinquent or neglected.

7.7In Madison Heights, Michigan, an Ordnance declares that “it shall be unlawful for the parent of any minor to fail to exercise reasonable parental control, if the child commits criminal acts as a result of that failure. If the minor commits two or more criminal acts within a twelve month period the parent “may be deemed guilty” and may be punished with a fine or jail sentence or probation.

7.8Minnesota Law declares that parents are warned by the first delinquency of their child after which they are held responsible. This has the curious effect of shifting the onus of proof from the prosecutor to the accused because of the statutory presumption of the guilt of the parent for the subsequent act of a previously adjudged delinquent child.

The United Kingdom

7.9The concept of parental criminal liability for the acts of children seems not to have been addressed in the United Kingdom.

7.10In the Command Report (Cmnd 8045) on Young Offenders dated October, 1980 the responsibility of parents was considered at paragraphs 53 to 55 (Appendix C). This Report took the view that the Government believed it is important that the Courts should be able more effectively to bring home to parents their responsibilities in relation to juveniles who offend. They felt that parents should not remain unaffected by the fact that their children commit criminal offences and while maintaining the status quo of criminal liability it was their intention to further involve parents in the consequences of their children’s offending.

7.11They advert to the parental financial penalties similar to those referred to in Section 99 of the Children Act, 1908 and expressed a view that they intend to clarify and strengthen these provisions in the belief that this will encourage parents to act responsibly towards their children and to take the necessary steps to prevent them committing criminal offences.

7.12They were of the view that the Government believed that the power to bind parents over to ensure the good behaviour of the children can be a most effective way of securing the co-operation of parents in the prevention of delinquent behaviour. They therefore proposed to increase the amount of the financial recognisance which parents could be ordered to forfeit if they failed to fulfill the undertaking they make to the court.

8. The options for Ireland

8.1Section 12 of the Children Act, 1908 makes parents responsible in respect of neglecting and abandoning a child or young person. However, the American Statutes clearly conceive a different purpose other than the direct protection of the child or young person. These contributing statutes and laws derived therefrom impose criminal liability on parents for conduct that causes or tends to cause delinquency. In the usual case, parents are prosecuted for their own active conduct such as encouraging the delinquent acts or committing sexual acts against the child or in his presence. In the former case in Irish Law the accused could be found guilty as an accessory before the fact. In the second case the sexual act against the child by a parent would be prosecuted as incest. These offences are of a positive or commission nature and pose no difficulty.

8.2The “Contributing Statutes” referred to impose an affirmative duty to prevent the delinquency of the child. The parent thus becomes liable if, by his passive conduct, he omits to act, when he could and should have acted, where his action would have prevented the delinquent act of the child.

8.3Section 3 of this report deals with the nature of crime and the elements necessary to constitute a true crime. The various contributing statutes referred to create criminal offences and criminal liability in parents, but in many instances they do so by a theory of strict liability for the act of a child. Such a parent can be convicted of an offence without the usual requirement of mens rea - criminal intent - as a positive factor, the sense of doing something which one ought not. In crimes of omission “an adequate mens rea” has been described as an attitude of self-centred thoughless and disregard for the rights of others despite the capacity and opportunity to realise and respect those rights. The mens rea requirement for omission is satisifed by recklessness where the consequences are foreseen as a certainty. Criminal negligence satisfies the mens rea requirements. In the family, the parent who knows of his child’s criminal propensity and who fails to take any appropriate steps to inhibit a recurrence is criminally negligent under these Statutes.

8.4The Committee was advised that while on similar Statutes to the contribution statutes of the U.S. exist in this jurisdiction, there seems to be no good reason why they should not be contemplated. Under the present law, parents cannot be held liable for the criminal acts of their children unless they fall into the category of accessories either before or after the fact.

8.5The Committee was further advised that there is a widespread controversy surrounding the concept of parental liability for their children’s crime. J. Edgar Hoover has been quoted as saying that “juvenile crimes could be abated if parents were made to face legal and financial responsibility for the criminal acts of their children”. Other authorities vehemently disagree seeing such Statutes as criminalising parenthood. Both views may reasonably be taken as expressing opposite ends of the opinion spectrum with an infinite variety of views between.

9. The Constitutional position in relation to parental responsibility

9.1The type of parental responsibility that has been discussed above is not considered by any of the provisions of the Constitution. Parental rights are stated as family rights in Articles 41 and 42, but, as John M. Kelly says in the Irish Constitution, 2nd Edition “the Constitution while guaranteeing the family’s rights does not say what they are, and the Courts have to rely largely on their instinct”. The Constitution confers rights on the family with regard to its health, welfare and religious and educational rights. Article 42 envisages a situation where the family might not exercise the educational right in the interest of the child, and in these circumstances, the State reserves an overriding right to itself to ensure the child’s basic education, “moral, intellectual and social”.

9.2The Committee was advised that it would not be unconstitutional to impose a duty on parents to refrain from contributing to their children’s delinquency either by commission or omission and it would not be unconstitutional to frame “contribution” statutes of the nature of those in the U.S. Any such offence will of course require a trial “in due course of law” in accordance with Article 38 but there seems to be no good reason why statutes creating offences of the nature referred to should not be constitutional.

9.3The concept of parental responsibility for the criminal acts of the child tends to fly in the face of the accepted theory that an accused person is innocent until proven guilty. This theory of criminal law is not enshrined in the Constitution and it is possible to create an offence where the onus of the proof of innocence rests on the accused. This concept has already been adverted to in the Road Traffic Act, 1961 Section 56. Similarly, the Larceny Act, 1916 Section 28(2) provides:-

“Every person who shall be found by night having in his possession without lawful excuse (the proof whereof shall lie on such person) any key etc. shall be guilty of a misdemeanour”.

In relation to membership of certain prescribed organisations, the onus of proof rests firmly on an accused person to prove that he is not a member of such an organisation where a chief superintendent has given evidence that he believes the person to be so.

9.4It appears that the concept of “guilty until proven innocent” is not totally alien to our laws. A Statute creating an offence of contributing to the delinquency of a child in which the onus of proof to negative guilt shall rest with the accused should not create any Constitutional difficulties.

10. Procedures for dealing with young offenders

10.1Children and young people in the community who are at risk of coming into conflict with the law, or who have been convicted of offences, are dealt with by both the Department of Justice and the Department of Education depending on the circumstances. The Department of Justice deals with such persons as follows: (i) Juvenile Liaison Officer Scheme; (ii) Probation Orders; (iii) Community Service Order Scheme; (iv) Committal to Institutions. The Department of Education, under section 58(1) of the Children Act, 1908, as amended by the Children Act, 1941, has responsibility for providing special residental schools for young offenders under the age of 16 years. Each of these will now be considered in greater detail.

Department of Justice Schemes

Juvenile Liaison Officer Scheme

10.2This scheme essentially provides for the cautioning of certain juveniles up to the age of 17 years, as an alternative to prosecution. The function of the juvenile liasison officer is to maintain contact with any juvenile assigned to him. The juvenile may be one who has committed an offence and, having been warned, has been informally committed to the care of the officer. The juvenile liaison officer may also be given the care and guidance of a young person who, though not known to have committed an offence, may be regarded as a potential delinquent by reason of unsatisfactory behaviour, such as persistent truancy, running away from home, staying out late at night, unruly at school or at home, behaving in a disorderly manner, or frequenting undesirable places. Such cases would come to notice through teachers, parents, school attendance officers, or other Gardai. A total of 79 members are at present assigned full time to juvenile liaison officer duties.

10.3The number of young persons dealt with under the scheme in each of the last three years is as follows: 1983, 5,404; 1984, 6,278 and 1985, 6,580 - the last year for which figures are available.

Probation Orders

10.4The Probation and Welfare Service of the Department of Justice provides supervision and control in respect of probation orders made by the courts. The number of such orders made in respect of young offenders under 17 years was 730 in 1984 - the last year for which statistics are available. A number of community based hostels and workshops and resource centres have been established throughout the country by the Department of Justice in association with local voluntary committees. These centres provide appropriate assistance for offenders on supervision and are mainly used for those in the 15 to 17 years age group to enable them to become stable members of the Community. The hostels in Dublin, Cork and Waterford provide up to 50 places, the workshops in Dublin, Dun Laoghaire and Galway provide 80 places and the resource centres in Dublin and Cork cater for a further 40 offenders.

Community Service Orders

10.5The Criminal Justice (Community Service) Act, 1983 which came into effect in December 1984 is a further non-custodial sanction available to the courts in dealing with offenders aged 16 years and over. Up to 31 December 1985 a total of 36 community service orders were made in respect of offenders in the 16 to 17 years age group.

Institutions

10.6In addition, St. Patrick’s Institution - provided under the Criminal Justice Act, 1960 - can receive from the courts offenders of 16 years. It is possible for these young offenders to be transferred to places provided under the Prisons Act, 1970 - Shanganagh Castle, the Training Unit or Fort Mitchel - where such a transfer is deemed appropriate to further the rehabilitation of the offender by, for example, maintaining family contacts.

Department of Education Schemes

10.7Institutions which care for young offenders under the Children Acts 1908-1957 come under the control of the Department of Education. They are certified as either industrial or reformatory schools under the Children Act 1908 and are still legally referred to by these titles.

10.8The purpose of these special schools is to provide care, education and training for young offenders between the ages of 10 to 16 years who are committed by the Courts. Children who reach the age of 16 in the course of their programme are, in practice, retained beyond that age.

Industrial Schools

10.9Finglas Children’s Centre, which is run by the De La Salle Brothers on behalf of the Department of Education comprises:-

St. Laurence’s is a residential school to which the courts may refer boys of from 10 to 15 years of age for minor offences for a period of 1 year. It accommodates 64 boys. St. Michael’s provides the Courts with assessment of boys under 16 years of age who are on remand or awaiting sentence, and accommodates 20 boys.

10.10St. Joseph’s Special School, Clonmel, which is run by the Rosminian Fathers on behalf of the Department of Education, has accommodation for 80 boys. It caters for the same type of boy as Finglas, but specialises in cases where assessment shows they need a longer period of care. This School likes to commence the programmes while the boys are in lower age-groups. The average stay of a boy in Clonmel is 4 years.

Reformatory

10.11Trinity House School, Lusk, County Dublin, is a secure residential school for boys between 12 and 16 years of age on admission who are referred by the Courts for more serious offences and who cannot be contained in any of the other schools. It accommodates 30 boys and has been admitting boys since 1 March 1983. The Centre operates under an executive Board of Management and provides ongoing residental care and education in a secure environment.

Residental Observation and Assessment Centre

10.12In order to overcome the inadequacy of present assessment facilities for girls who find themselves in conflict with the law, a Residental Observation and Assessment Centre to accommodate up to ten girls has been established in North Dublin City. It is housed in premises known as “Cuan Mhuire”, and located in Collins Avenue, Whitehall, Dublin 9.

10.13The Centre offers a comprehensive inter-disciplinary assessment for a small number of girls in the age-range twelve to sixteen years referred by the Courts. The reports furnished by the Centre will assist the Courts in making meaningful decisions as to the girls’ welfare following their stay in Cuan Mhuire (normally of three weeks’ duration). Caring and teaching staff are available on a full-time basis and the services of other specialists, including psychiatry and psychology, are available on a part-time basis. The administration of the Centre on a day-to-day basis is the responsibility of an executive Board of Management.

Youth Encounter Projects

10.14Arising out of a study of the provisions for young offenders emerged the decision to set up Youth Encounter Projects - two in Dublin and one each in Cork and Limerick - on a pilot basis.

10.15In these projects an integrated school and out-of-school programme is conducted. The school or educational programme assists in developing basic educational skills and provides for activities with a vocational and cultural value. The out-of-school programme includes provision for recreational and cultural pursuits as well as for outings and tours of an educational or cultural nature. An average of 20-25 children is catered for at any one time in each project.

Scoil Ard Mhuire

10.16This was a purpose-built special school for young offenders constructed in 1973 to replace St. Conleth’s Reformatory, Daingean, Co. Offaly. It could accommodate up to 60 boys in an ‘open’ setting though there had seldom been more than 45 boys in residence. After considering the difficulties arising from the fact that Scoil Ard Mhuire was not a secure institution the Department of Justice opened Loughan House, Blacklion, Co. Cavan in 1977 to cater for more serious young offenders. At the same time the Department of Education made plans to construct a purpose-built secure centre for these offenders. These plans resulted in the construction of Trinity House School, on the same campus as Scoil Ard Mhuire, at Oberstown, Lusk, Co. Dublin and this new unit commenced operations in March, 1983.

10.17In late 1983 the Oblate Fathers, who had acted as legal managers of Scoil Ard Mhuire, under the terms of the 1908 Children Act, advised the Department of Education that they intended to withdraw from the management of the school and they duly terminated their management of the school with effect from 31 August 1984. Having established that no other religious order had an interest in taking over the management of Scoil Ard Mhuire, the Department of Education decided to amalgamate this institution with Trinity House School to form the Oberstown Youth Centre with effect from 1 September 1984.

10.18Subsequently, it was decided to close Scoil Ard Mhuire and leave Trinity House to take over its role. In the year since the closure Trinity House has been able to cater for the numbers being assigned there. One of the reasons behind the closure of Scoil Ard Mhuire was an increasing trend towards dealing with the problems of delinquency at local level in small community-based projects such as the Youth Encounter Projects. These projects which operated on a pilot basis since 1977 are leading to a reduction in the number of children requiring residential care.

11. Acknowledgement

11.1The Committee would like to take this opportunity to acknowledge the assistance provided by its expert adviser on this topic, Mr. Donagh McDonagh B.L. Originally, the Committee had engaged the services of Mr. James Carroll S.C., together with Mr. McDonagh. Following on Mr. Carroll’s appointment as a Judge of the Circuit Court, Mr. McDonagh continued on his own. The Committee thanks Judge Carroll for his interest in the Committee’s work and wishes him well in his current appointment.

11.2The Committee wishes to express its appreciation of the work of the Clerk to the Committee, Mr. F.J. Brady, and its Secretary, Miss G. Murphy, in the preparation of this Report.

Thirteenth Report of the SELECT COMMITTEE ON CRIME, LAWLESSNESS AND VANDALISM

Liability of Parents for Contributing to the Delinquency of their Children

Membership of the Committee

Dail Deputies

1. Introduction