O'Dea and that 'new' legislation

So striking was one minister's swashbuckling report from Fianna Fáil's Killarney ardfheis that it demanded a fresh definition…

So striking was one minister's swashbuckling report from Fianna Fáil's Killarney ardfheis that it demanded a fresh definition of the word "stroke", writes Kathy Sheridan

The dictionary supplies two possibilities: "a sudden disabling attack, esp. of apoplexy" and "to pass the hand gently, and usu. repeatedly, in same direction along surface of (person)."

The first describes the response to Willie O'Dea's weekend pronouncements of juvenile law practitioners and anyone with even a half-baked interest in the implementation of the Children Act, 2001.

The second has to be the delicious stroking technique he must surely have employed to get his stunt straight through the media bull filter and into the national headlines.

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"Parents to pay for vandal children"; "Vandals to cost parents"; "Vandals' parents 'should foot bill'"; "Control your child or face crackdown"

Great populist stuff. And in every report, Willie got to play Errol Flynn.

Here's a taste from four national newspaper reports : "He revealed that the draconian measures, which he signed into force in recent weeks, would come into effect tomorrow [last Monday] morning." "He revealed that the Children's Act 2001 had made provisions to enable the courts make an order for parents to be made liable but there were some technical difficulties about bringing that order into force. However in the last few weeks that legislation has been signed into place." "The law is now in force and can be handed down by a judge from Monday morning." "It means that as of tomorrow, the parents of any child...found guilty...of vandalism will be obliged to foot the bill..." What's wrong with this picture? Only that this section of the Act was signed into law by John O'Donoghue 16 months ago, not last Monday morning. O'Dea's ministerial colleague, Brian Lenihan, addressing a conference (at which Willie was originally scheduled to speak) only a couple of days before the ardfheis, was well aware of it. Why wasn't Willie?

Odder still is the fact that no-one in the Department of Justice seems able to recall any "technical difficulties" relating to the section.

No staggering surprises then, in the discovery that far from being the innovative and daring piece of legislation of Mr O'Dea's fantasies, the option of penalising parents has been available to judges for oh, give or take, 100 years.

There is little variation between the provisions in the 1908 Act and the 2001 Act for either ordering compensation from parents or obliging them to give security for good behaviour. Mary Ellen Ring could have told Willie all that for the price of a phone call.

But stunning as his coup proved to be, it wasn't enough for Willie. His "message" to the District Courts, threatening those judges who "fail to use the law" with new legislation whereby "they will be forced to use it", saw him deliver that populist little boot right up the judiciary's behind. In like Flynn.

Anyone who read the professional magician's masterclass for politicians on "the true art of misdirection" - "the little lie that hides the bigger lie" - here yesterday will know what's coming next. Just what was Willie trying to conceal?

Leave aside the legal nicety that ordering compensation from parents hinges on proving "wilful failure" on their part. Or that judges tend to balk at enabling the better off to buy their way out of jail.

Or that most parents of troubled children are there either begging for the help of the courts or are already living in financial hardship.

The Act has many enlightened things to say about early intervention, several kinds of family conferencing, and a raft of new sentencing options for judges. Most of these are in Willie's departmental bailiwick, so why are we not hearing about those from him? Could it be because the more costly sections have not been signed into law - unlike, say, parental penalties?

Why has one of the top three objectives of the Act, raising the age of criminal responsibility from 7 to 12, not been signed into law? Is it because another couple of thousand troubled under-12s would be thrown at the notoriously under-resourced health boards?

Why is the provision for judges to order Family Welfare Conferences prior to seeking a Special Care Order - one of the most important non-custodial options available to the courts - lying dormant?

Why has the section empowering judges to order and supervise family conferences convened by the Probate and Welfare Officer not been signed into law?

Why have the crucial sections relating to the treatment of child suspects in Garda stations and the role of the Health Boards there, not been signed off?

Why, of the eight new, rather impressive community sanctions open to the courts, has only one been commenced - the cheap curfew?

Again and again, the answers lie in the non-provision of manpower and funding.

In Killarney, Willie, not surprisingly, opted for the roar of the crowd rather than the tedious truth. Brian Lenihan, to his credit, has taken on the more thankless mission to explain. Who would you believe?