Children and the criminal justice system

Children are one of the most vulnerable groups in society. The law protects children until they are deemed to be able to interact in society as adults. For this reason, children are treated differently from adults by the criminal justice system.

The law dealing with children who are found in breach of the criminal law, is contained in the Children Act, 2001 which was amended by the Criminal Justice Act 2006, the Children (Amendment) Act 2015 and other acts.

The Children Act 2001 Act tries to ensure that children in conflict with the law are only detained (custody) by the State as a last resort. Community-based measures must be tried by the State before detention can be considered.

The word child is now defined by Section 3 of the 2001 Act to mean a person under the age of 18 years. This could be a child or a young person. Previously different terms such as minor, juvenile, youth offender and young person were used.

The age of criminal responsibility is 12 years of age. This means that children who have not reached the age of 12 years generally cannot be charged with an offence.

If the child is aged under 14 years when charged with an offence, no further proceedings can be taken without the consent of the Director of Public Prosecutions.

The laws covering the age of criminal responsibility are Section 52 of the Children Act 2001 as amended by Section 129 of the Criminal Justice Act 2006.

The age of criminal responsibility was raised from 7 years of age to 12 years of age in 2006.

Exceptions to the age of criminal responsibility

Children aged 10 or 11 can be charged with murder, manslaughter, rape or aggravated sexual assault.

What about children under 12?

Children under 12 years of age do not have total immunity from action being taken against them.

The Gardaí have a responsibility to take a child under 12 years of age to their parents or guardian, where they have reasonable grounds for believing that the child has committed an offence with which the child cannot be charged due to the child’s age.

Where this is not possible, the Gardaí will arrange for the child to be taken into the custody of the Child and Family Agency (Tusla) for the area in which the child normally lives. This is under Section 53 of the Act as amended by Section 130 of the Criminal Justice Act 2006.

The Criminal Justice (Engagement of Children in Criminal Activity) Bill 2023 was commenced on 23 May 2024. The Act now makes it an offence for an adult to:

• Compel, coerce, direct or deceive a child for the purpose of engaging in criminal activity.
• Induce, invite, aid, abet, counsel or procure a child to engage in criminal activity

The child concerned does not have to be successful in carrying out criminal activity for this law to apply.

Only adults can be accused of these offences. A child who influences another child to commit a crime cannot be charged under this legislation. This is to avoid further criminalisation of children.

If you are found guilty of these offences, you may face a fine of up to €5,000 or imprisonment of up to 12 months or both on summary conviction, or a fine or up to 5 years imprisonment or both on indictment.

Under Section 142 of the Children Act 2001, a court may impose a period of detention on a child. Children between the ages of 10 and 17 sentenced by the courts to a period of detention are sent to the Oberstown Children Detention Campus.

You can find out more in our document on the detention of children.

If a child commits an offence and is found guilty, this can be automatically removed from the record as if never committed, if the following conditions are met:

• The offence was committed before the child reached the age of 18 years
• The offence is not one required to be tried by the Central Criminal Court (such as murder or rape)
• At least 3 years have passed since the child was found guilty and
• The child has not been dealt with for another offence in that 3-year period

If these conditions are met, they are no longer regarded under Irish law as having committed an offence. The spent conviction also applies if they have received a caution or have been dealt with under the Probation of Offenders Act 1907.

When looking for employment or applying for an educational course or insurance, they can claim to have a clean record.

However, if they are travelling or emigrating to a country such as the USA or Australia, they are subject to that country’s immigration laws and may have to disclose such convictions.

Section 258 of the Children Act 2001 covers spent convictions.

Department of Children, Equality, Disability, Integration and Youth (DCEDIY)

DCEDIY was set up to bring greater coherence to policy-making for children. While it was part of the Department of Health it also included units from the two other departments, such as the Irish Youth Justice Service.

The Irish Youth Justice Service

There are two divisions within the Irish Youth Justice Service:

• The Children Detention Schools Unit of the Department of Children, Equality, Disability, Integration and Youth, which is responsible for legislation and policy in respect of children detention schools
• The Youth Crime Policy and Programmes Division of the Department of Justice, which deals with youth crime policy, oversight and funding of the Garda youth diversion projects nationwide