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1) The 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, in the case of a child under 16 years of age, that a place in a children
detention school is available for himor her.
2) Where an order is made under Subsection (1), the court making the order shall
give its reasons for doing so in open court.
The possibilityof a child, for the purposes of this discussion, a sixteen or seventeen year old,
receivingmore than one penaltypursuant to section 98 couldpotentiallyexpose himor
her, if convicted, to a greater degree of punitiveness than wouldbe possible in respect of
adult offenders under Section 3 of the Criminal Justice (CommunityService) Act, 1983.
Section 98 allows the court to make “one or more of the followingorders” (emphasis added)
which menuof orders couldallowa combination of a fine anda communityservice order
or even a communityservice order and detention; whereas Section 3 of the 1983 Act
contains specific words of limitation bythe use of the phrase “insteadof dealingwith him
in anyother way”. This phrase excludes the possibilityof a court makingan order of
communityservice which is coupledwith anyother sanction such as fine, a probation
order or a term of imprisonment. It is arguedtherefore that, section 98 of the Children
Act, 2001 provides the possibilityof a more punitive approach to sixteen and seventeen
year olds where a communityservice order maybe made in combination with another
penaltyandthis possibilityis evidence of the emergence of a distinct penaltyof community
service in respect of sixteen or seventeen year olds which is different in character froma
communityservice order as originallyprovided for under section 2 and 3 of the 1983 Act
for adult offenders andindeedin respect of sixteen andseventeen year olds under the
earlier legislation.
For the purpose of this discussion however, it is necessaryto refocus upon the penalties of
communitysanctions and detention to fullyunderstandthe attemptedmetamorphosis of
the penaltyof communityservice which had operatedin Irelandup to the passingand
implementation of the Children Act 2001.
THE JUVENILE COMMUNITY SERVICE ORDER EMERGES
The attemptedchange in the character of communityservice orders is discernible throughout
the Children Act 2001. When dealingwith the penaltyof fines, the legislation specifically
prohibits the use of detention in default of payment of the fine penalty(section 110), an
innovation which is likelyto leadto the decline in the use of such sanction as sentencers
lose confidence in the possibilityof collectingsuch fines. (Comptroller and Auditor
General 2000, No. 37)
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