Criminal Justice (Forensic Evidence and DNA Database System) Act 2014

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Application for court order authorising taking of intimate sample from child

17. (1) If—

(a) a member of the Garda Síochána is unable, having made reasonable efforts to do so, to contact a parent or guardian of a child for the purposes of ascertaining whether or not he or she consents to the taking of an intimate sample from the child under this Part,

(b) a parent or guardian of a child indicates to a member of the Garda Síochána that he or she cannot or will not attend at the Garda Síochána station in which the child is detained within a reasonable time for the purposes of giving consent to the taking of an intimate sample from the child under this Part,

(c) subject to subsection (3) of section 15 , the circumstances referred to in subsection (2) of that section exist in relation to a parent or guardian of a child,

(d) a parent or guardian of a child refuses to consent to the taking of an intimate sample from the child under this Part, or

(e) a child does not have, or the member in charge of the Garda Síochána station in which the child is detained cannot, having made reasonable efforts to do so, ascertain within a reasonable period whether he or she has, a living parent or guardian from whom consent to the taking of an intimate sample from the child may be sought under this Part,

a member of the Garda Síochána not below the rank of inspector may apply to a judge of the District Court for an order authorising the taking of an intimate sample from the child.

(2) A member of the Garda Síochána who intends to make an application under subsection (1)shall inform the child concerned and, if it is reasonably practicable to do so, a parent or guardian of that child, other than a parent or guardian to whom section 15 (2) applies, of that intention.

(3) A judge of the District Court may order—

(a) that an application under subsection (1)shall be heard otherwise than in public, or

(b) that a parent or guardian of the child concerned to whom section 15 (2) applies shall be excluded from the Court during the hearing of the application,

or both if—

(i) on an application in that behalf by a member of the Garda Síochána not below the rank of inspector, the judge is satisfied that it is desirable to do so in order to avoid a risk of prejudice to the investigation of the relevant offence in respect of which the child concerned is detained, or

(ii) the judge considers that it is otherwise desirable in the interests of justice to do so.

(4) A judge of the District Court shall, for the purposes of determining an application under subsection (1), have regard to the following before making an order under this section:

(a) the grounds on which the authorisation under section 12 (2)(a) was given for the taking of an intimate sample from the child concerned;

(b) if appropriate, the reasons (if any) that a parent or guardian of the child concerned (other than a parent or guardian to whom section 15 (2) applies) gave for refusing to consent to the taking of an intimate sample from that child;

(c) the age of the child concerned;

(d) the nature of the offence in respect of which the child concerned is detained; and

(e) whether it would be in the interests of justice in all the circumstances of the case, having due regard to the best interests of the child concerned, the interests of the victim of the offence in respect of which the child concerned is detained and the protection of society, to make an order authorising the taking of an intimate sample from the child concerned.

(5) If, on an application under subsection (1), a parent or guardian of the child concerned applies to be heard by the judge of the District Court, an order shall not be made under this section unless a reasonable opportunity has been given to the parent or guardian, as the case may be, of that child to be heard.

(6) A judge of the District Court may, if he or she considers it appropriate to do so, make an order authorising the taking of an intimate sample from the child concerned in accordance with this Part.

(7) If, on an application under subsection (1) in relation to a child who is detained under section 4 of the Act of 1984, a judge of the District Court makes an order under subsection (6), the judge may, on an application in that behalf by a member of the Garda Síochána not below the rank of inspector, issue a warrant authorising the detention of the child concerned for such further period as the judge may determine but not exceeding 4 hours for the purpose of having an intimate sample taken from that child.

(8) Subsection (7) shall not affect the operation of section 4(3) of the Act of 1984.

(9) When an intimate sample has been taken from a child who is detained pursuant to a warrant issued under subsection (7), the child shall be released from custody forthwith unless his or her detention is authorised apart from this section.