Children in court: Why presence is not the same as participation – Kelly Razey

Youth detention is legally framed as a measure of last resort. Yet the meaning of “last resort” depends on more than the reports prepared, alternatives considered or decisions recorded by professionals. It also depends on whether children understand the process that has led them there, why decisions have been made, and where their own voices fit within that process.

This emerged as a significant finding in my research, which explored how children and young people detained in Oberstown experienced and interpreted detention as a measure of last resort. While the study was not designed as research on the Children’s Court, court experiences featured repeatedly in young people’s accounts of how they came to be detained. Describing their journeys to Oberstown, young people rarely spoke about a single court decision. Instead, they described a pathway involving family circumstances, school experiences, Garda contact, support services, court and, ultimately, custody. Court was a key stop along that journey, but it was rarely experienced as the entire story. 

The study adopted a participatory design. I conducted 19 one-to-one interviews, co-designed and analysed in collaboration with young people in detention. The emerging themes were fact-checked with young people in custody. 

Children could not participate in or understand proceedings

One of the strongest themes was the distinction between presence and participation. Young people were physically present in court and legally represented, yet many did not feel meaningfully involved in the process. As one participant explained: “They were all talking about me, but no one was actually talking to me.” This shows how a child can experience the proceedings as something happening around them, rather than with them.

Participation requires understanding, communication and engagement. To participate meaningfully, children need to know what is happening, what options are being considered, what information is being presented about them and how their own views can be expressed. This is particularly important where detention is a possible outcome. Decisions made in the Children’s Court affect a child’s liberty, family relationships, education, community connections, and immediate future.

Another recurring challenge was legal language. Several young people described struggling to understand discussions taking place in court. One referred to judges using “big, fancy words”, a simple phrase that nevertheless captures a significant barrier to participation.

Legal terminology that may seem routine to practitioners can be difficult for children to follow, particularly when decisions are made quickly in an unfamiliar environment. Young people may not feel comfortable interrupting proceedings, admitting they do not understand, or seeking clarification. In such circumstances, information may technically be available, but it is not necessarily accessible.

The consequences extend beyond comprehension. Young people frequently linked understanding with fairness. Where communication was unclear, decisions felt more sudden, confusing and outside their control. Children’s recognised rights to be heard and to participate in proceedings affecting them cannot be realised if they cannot follow what is happening. The issue is therefore not just procedural. It raises legal, ethical and practical questions.

 The research also highlighted an important distinction between representation and participation. Participants generally recognised that solicitors spoke on their behalf. However, legal representation did not automatically translate into a sense of involvement. As one young person put it: “My solicitor was talking, the judge was talking, and I was just standing there.” The question is how representation is experienced. Does it help children understand proceedings, prepare for possible outcomes and communicate their views? Or does it reinforce the perception that the process remains exclusively in adult hands?

Practitioners have a key role to play

Legal representatives, judges and court accompaniment workers can play an important role. They help explain legal processes in accessible language, prepare children for what may happen, check whether explanations have been understood and create opportunities for children to identify what they want the court to know. Even where outcomes are disappointing, children may experience proceedings as fairer if they understand what happened and why.

For some participants, the clearest memory of court was the shock of receiving a custodial sentence. One young person expected probation but instead received a custodial sentence. The issue was not merely disappointment; it was the sense that the outcome had arrived unexpectedly.

Custody involves immediate loss of liberty, separation from family, disruption to education and entry into a custodial environment. For some children, it may be their first experience of spending time away from home. Where the possibility of detention has not been clearly understood, the experience can feel abrupt and imposed rather than the outcome of a transparent decision-making process.

More broadly, the research found that detention was rarely experienced by participants as a clear and explained measure of last resort. This does not mean that alternatives, supports or interventions had not been considered. Often, legally significant steps were taken before custody. However, those steps were not always visible or meaningful from the child’s perspective. As one participant reflected: “No one ever asked me what would help… It was only when I got locked up that anyone started saying, ‘What’s going on with you?’”

Perhaps the most important lesson from the research is that understanding cannot be assumed. A child may nod, remain quiet, or appear calm without fully understanding what has happened or what may happen next. For those involved in court accompaniment and legal representation, this offers a valuable reminder to slow down, ask whether the child understood, whether the process made sense to them and whether they felt part of it.

If detention is to function meaningfully as a measure of last resort, then the process leading to it must be visible, understandable and participatory for the child whose liberty is at stake. 

Children in court: Insights from the bench – Judge Paul Kelly

My experience as a judge aligns with research illustrating that children appearing before the Children Court (i.e., the District Court dealing with persons accused of offences committed while under 18) may have limited understanding of what is happening. This can be due to factors such as:

• Youth/immaturity
• Limited education or literacy
• Neurodivergence
• Mental health challenges
• Addiction
• Limited capacity or insight
• Speech and language difficulties.

Apart from youth, these same challenges can affect adults before the courts in similar ways.  It is common, therefore, for many accused to have a limited understanding of what is happening in court, notwithstanding their presence or participation. In many cases, it appears that no amount of explanation by the judge, lawyers or other supporters, no matter how painstaking or patient, will give an accused a comprehensive understanding of the procedure, and why a particular outcome – e.g. custody – might result.  However, both judges and lawyers must do their best to explain such matters to accused persons.  

This duty is even more compelling in the case of persons with the challenges outlined above.  In the case of children who are detained, it is given the force of law by section 88(3) of the Children Act 2001: “Where the court remands a child in custody it shall explain the reasons for its decision in open court in language that is appropriate to the age and level of understanding of the child”.  

At the same time, it must be remembered that the Children Court is a court exercising criminal jurisdiction, i.e., dealing with cases where crimes have allegedly been committed, and where victims have suffered as a result. Section 96(1)(b) of the Act specifically precludes the court from using criminal proceedings solely to protect the welfare of a child:

 “96.—(1) Any court when dealing with children charged with offences shall have regard to—

(b) the principle that criminal proceedings shall not be used solely to provide any assistance or service needed to care for or protect a child (emphasis added).”

Ms Razey refers to children not feeling meaningfully involved in the process - “They were all talking about me, but no one was actually talking to me.” In my experience, this is quite normal in proceedings for both adults and children. We are, on occasion, limited in what we can do: for example, it is not always necessary or appropriate for a judge to directly address a person who is legally represented. We have to assume that legal representatives have exercised their responsibilities appropriately, taking instructions from their clients before the court and explaining the outcome afterwards. In the case of children, there are frequently other adults with them in court – parents or guardians, social workers, youth workers, court accompaniment advocates, and guardians ad litem.  Where a young person appears before a judge with such people – who may be professionals or trained/experienced volunteers – the judge is entitled to expect that they have explained to the child why they are in court, what their options are, and what the likely outcome might be. It is my view that most judges in the District Court do, in fact, go out of their way to explain what they are doing, and why, to children before them. It is also the case that many court appearances are brief and procedural, meaning that judges don’t always have time to do things that others should have done.  

In most cases before the Children Court, custody is not the outcome: the Courts Service Annual Report shows that, in 2025, the Children Court nationally made 3,653 sentencing orders, including strikeouts, probation bonds, fines, community service, detention and others. Only 136 were orders of detention (i.e., 3.7 per cent of all sentences). 

In every case where custody results, be it on a refusal or revocation of bail or a sentence, the judge must to explain the reasons to the child in open court. This is often done in language that may not be familiar or understandable to the child, due to the necessity for the court to give reasons which may be scrutinised in a subsequent appeal or judicial review.  Even so, the judge will usually do his or her best to explain the reasons in child-friendly language: e.g., “I’m remanding you in detention because you have broken your bail conditions”. There is a hearing in which detailed evidence is given by Gardai and witnesses, followed by cross examination and submissions made by the child’s lawyer. It is rare for detention to be ordered for a child appearing in court for the very first time (except in cases of murder, where the Children Court cannot grant bail). It is also rare for children to be sentenced by the Children Court to detention without the many other possible outcomes having previously been applied in cases involving the child.

Judges do their best to ensure that children understand what is happening to them, and in many cases will interact directly with the child.  Almost all children in the Children Court are represented by lawyers paid by the State to advise them professionally and competently. There are often other professionals, many with experience of accompanying children in court, who can assist in explaining these complex matters to children. Ms Razey’s research, and that of the Ombudsman for Children and Penal Reform International, are very useful in pointing out the necessity for all involved in dealing with children in court to be aware of the difficulties faced by children in understanding what is happening to them, and to ensure that as much as possible is done to provide them with information and explanations that they can understand.

Both judges and lawyers can and should do better at explaining to children in child-friendly language. Training is provided by the professional bodies for lawyers, and by the Judicial Council for judges, and there is scope for greater focus on dealing with children as part of the initial and the ongoing training in each case.  Penal Reform International has recently, in consultation with myself and other stakeholders, developed an operating procedure for video-link hearings with children.  Most of its recommendations could be adapted to apply equally to in-person hearings. In this way, judges can give leadership to all those working with young people in the Children Court.

Kelly Razey is a PhD Candidate at Queen’s University Belfast School of Social Sciences, Education and Social Work, and a CORD Justice Fellow funded by Maynooth University. Judge Paul Kelly is President of the District Court, frequently sitting in the Children Court.