"The Children Act 2001 introduces a wide range of innovative measures that will provide a statutory framework for the future development of the juvenile justice system in accordance with modern thinking and best international practice, " the Fianna Fail politician said in December 2003.

Lenihan is now minister for children and he will have a key role in the government's proposed referendum on children's rights. Yet, five years on from his Dail contribution, very little progress has been made with the central legislative plank of government policy in relation to children. Significant sections of the Children Act have not been implemented.

The legislation . . . which was designed to overhaul the archaic juvenile justice system . . . is left gathering dust. Its implementation would have a far greater effect on the provision of services and the protection of children than any new wording in the constitution.

Section 96 Detention What the Act Says: "A period of detention should be imposed only as a measure of last resort."

"The most glaring element of the Act is that the 10 non-custodial options supposed to be available to courts before imposing a custodial sentence don't exist. Only two are actually in force, " said Fr Peter McVerry, executive director of the Peter McVerry Trust, which provides accommodation and care for homeless young people.

"The effect it has is that the judges are extremely frustrated at having no options for dealing with children. The only options they have are locking a child up or placing them on probation.

The judges who want to help the children say they want to send them to an education programme; those options can't be used."

The section states that any penalty imposed "should take the form most likely to maintain and promote the development of the child".

Incarceration of children is the least desirable, yet the most frequent outcome.

"For children who are seen as difficult . . .

mad, sad or bad . . . custodial sentences don't work, yet we're still using them, " said Dr Pat Dolan, director of Child and Family Research at NUI Galway. "You need services to match the legislation, and services have to be based on giving better outcomes for children."

Section 116 Community Sanction What the Act Says: "[A court] may make an order imposing on the child a community sanction, if it considers that the imposition of such a sanction would be the most suitable way of dealing with the case."

Community sanctions were introduced as a way of dealing with offending children without putting them through the detention system. They can only be given to a child who pleads guilty to the offence and include fines, curfews, retraining, intensive supervision, residential supervision, restriction of movement and family support.

"The idea behind the sanctions is that they give an alternative to detention, which should be a last resort, " said Dr. Ursula Kilkelly of the Youth Justice Alliance. "They give priority to rehabilitation over punishment and they have real potential to keep young offenders from getting into trouble again."

Community sanctions work in different ways, depending on the child's situation.

Where parents are a negative factor, they can be ordered to take a parenting course or get rehabilitation for substance abuse. Specialised probation orders can be issued whereby the child will be given intensive supervision and help in getting his/her education and training back on track.

To date, only two out of the 10 sanctions have been implemented by the government . . . fines and a curfew . . . and these were already covered by the 1908 Act.

"The problem with community sanctions is that they are all very resource-intensive and that is the main reason they haven't been implemented, " said Kilkelly. "For instance, children sent to day centres need to have one in their area and that level of infrastructure hasn't really been looked at. It is a great pity, because there is a whole generation of children missing out on this kind of treatment who are being prosecuted instead."

Section 118 Garda Diversion Scheme What the Act Says: "Any child who has committed an offence and accepts responsibility for his or her criminal behaviour shall be considered for admission to a diversion programme. The objective of the Programme is to divert from committing further offences any child who accepts responsibility for his or her criminal behaviour."

This scheme, whereby children who plead guilty to an offence can be cautioned and placed under the supervision of a garda officer, has not been implemented due to a chronic shortage of gardai trained to take on this job.

"Juvenile Liaison Officers (JLOs) are fully trained and specialised officers, who are trained in mediation and in family matters, " said Kilkelly. "The diversion scheme duplicates the work of JLOs but assigns it to garda superintendents, who have not been trained in the same way."

There is also the issue of the diversion scheme being expanded to include anti-social behaviour when ASBOs come into effect next March. "There is a risk of criminalising children who didn't actually do a crime in the first place, " said Kilkelly. "There would be no need to bring in ASBOs if the Children Act had been implemented properly in the first place.

It says a lot about who is prioritising what."

Section 78 Family Conferencing What the Act Says: "The Court may direct the probation and welfare service to arrange for the convening of a family conference in respect of the child and adjourn the proceedings until the conference has been held."

A family conference could examine the source of a child's problems and allow them a chance at staying out of prison.

Yet, family conferences do not happen, despite their legislative promise. It's just another non-custodial alternative out of the reach of judges.

"The courts are the playing pitch for law, " said Dr Pat Dolan. "The question is, is the court culture a family friendly culture?

"The Children Act is a very good act, but I think where it is weak is where it talks a lot about prevention, like family group conference, but it's not matched by action.

"The implementation of the Act needs to be addressed. . . we have lots of legislation relatively speaking in recent years, but what's needed is pragmatic use of existing services and we need a better range of services."

BARNARDOS PROPOSES LAW CHANGE BARNARDOS has proposed a change to the constitution to insert a provision covering child protection and welfare into Article 40 (which covers personal rights) and to amend Article 42.5 so as to enable the state to intervene in exceptional cases where the welfare of a child is under threat.

The organisation wants Article 40.3.4 to state:

"the State recognises the unique and vulnerable nature of children and promises to guard with special care their welfare.

It shall by its laws and its actions protect and vindicate the welfare of children and such welfare shall be the paramount consideration in any decision made by the State, or its authorities, in relation to children."

It is also proposing that Article 42.5 be worded to state, "In exceptional cases, where parents fail to protect the welfare of their children, the State shall take such action as is necessary to ensure such protection."

According to Fergus Finlay of Barnardos, "a change in the constitution will have a profound effect on the future of children in Ireland. We are hopeful that a meaningful change will be made to the constitution and that depends on the wording."