I move: "That the Bill be now read a Second Time."
I will start by thanking Senator McDowell and the other proposing Senators for introducing this Bill in the Seanad. It has now passed all Stages in the Seanad, with some Government amendments and with Government support. I acknowledge the Private Members' Bill proposed by Deputy Jim O'Callaghan, which addresses the same issue, and I thank him and Senator McDowell for their co-operation on this matter.
This Bill is in response to issues arising from the recent decision of the courts in DPP and EC v. The Irish Times and others. Section 252 of the Children Act 2001 contains mandatory reporting restrictions where the trial relates to "an offence against a child or where a child is a witness in any such proceedings". Mr. Justice Birmingham, in the Court of Appeal on 29 October 2020, upheld the High Court's interpretation of section 252 to mean that the reporting restrictions in respect of offences against children also apply in circumstances where the child is deceased or has turned 18 years of age. The identity of the person responsible for the child's death cannot be published if it would directly or indirectly reveal the child's identity.
The profoundly negative impact that the ruling is having on grieving parents who are unable to remember their deceased children's names or legacies is clear to me. I have been working closely with Senator McDowell and Deputy Jim O'Callaghan on this issue. We all agree that a collaborative approach is the right one to take. Having committed to finding the fastest way to address this issue, the Cabinet agreed to support the Private Members' Bill, with Government amendments, as the most expeditious way of delivering on that commitment.
As the law stands, section 252 of the Children Act 2001 was designed to protect child witnesses and child victims from the negative impact of being publicly identified in criminal proceedings.
Section 252(1) provides that:
... in relation to any proceedings for an offence against a child or where a child is a witness in any such proceedings—
(a) no report which reveals the name, address or school of the child or includes any particulars likely to lead to his or her identification, and
(b) no picture which purports to be or include a picture of the child or which is likely to lead to his or her identification,
shall be published or included in a broadcast.
Section 252(2) does permit a court to lift reporting restrictions if satisfied that this would be in the interests of the child. Prior to the judgment of the Court of Appeal in the EC case, the issue of reporting restrictions in the case of deceased child victims had not arisen.
The position appears anomalous given the fact that the identity of a child murder victim can be and is reported at the time of the tragic occurrence, but cannot be published once proceedings for an offence against the child homicide victim commence. Nonetheless, as the judgment of Mr. Justice Birmingham outlines, this is the natural consequence of a perfectly plain reading and interpretation of section 252. Mr. Justice Birmingham was of the view that it is not possible to interpret the section as not including a deceased person who was a child at the time of death.
A further issue which has arisen on foot of the ruling is in respect of cases relating to persons who were children at the time of the offence but adults when proceedings were taken against the perpetrators. Mr. Justice Birmingham added on this point, "Neither, in my view, is it possible to exclude proceedings relating to offences committed against a child, as a child, if they come on for hearing after the child has attained his or her majority."
I will now turning to provisions of the Bill. Instead of replacing section 252, I will be amending it to address the key issue, which is to ensure that parents will be free to refer in media reporting to the names of their deceased children who have been the victims of crimes. This will also remove the restriction on the reporting of the identity of accused or convicted persons in such cases where there were restrictions because it might lead to the identification of the deceased child victim. However, this will not operate to undermine the provisions of section 252 if another child witness or victim is in need of its protection and neither will it undermine the provisions of section 93 of the Act, which protects the identity of a child who is the accused or convicted person. In addition, the Bill addresses the restrictions that apply in respect of the identification of a person who was a child at the time of the offence but an adult at the time of the proceedings.
Subsection (1)(a) of section 1 amends the existing sections 252(1) by substituting "Subject to this section," for "Subject to subsection (2),". The purpose of this amendment is to ensure that this section is subject to subsections (1A), (1B) and (1C) as well as subsection (2).
Subsection 1(b) inserts three new subsections after subsection 252(1), namely, subsections (1A), (1B) and (1C). Subsection (1A) disapplies the prohibition on publication or broadcast in subsection (1) where the proceedings concern the death of a child. This section disapplies subsection (1) automatically, which means that the identity of a child victim who has died can be published without the need for a court order. There are two exceptions to this. First, where this would lead to the identity of another child who is a witness or another child who is a victim of an offence to which the proceedings relate. Second, where this would lead to the identity of a child accused in relation to the proceedings, contrary to section 93 of the Act. Section 93 protects the identity of child offenders or children accused of criminal offence. I will clarify how this will operate in practice by way of examples.
In the first scenario, where there is a deceased child and no other child witness, subsection (1A) operates to allow the identity of child and perpetrator to be reported without any court involvement.
The second scenario relates to circumstances where there is a deceased child and a child witness. If identifying the deceased child or the perpetrator is likely to identify a child witness, such as a sibling, the default situation under subsection (1A) is that the identity of the deceased child should not be reported unless a court decides otherwise. There is that flexibility. However, section 252(2) would apply in this situation. It allows the court to dispense with the protections, to any specified extent, in the best interests of the child. The court has flexibility under this section. For example, it could decide that the deceased child could be named, which would also allow the accused to be named, but that there should be no reporting of family link with the witness or it could decide the best interest of the child witness does not require anonymity for the deceased child and witness.
A third scenario is where there is a deceased child and a child witness and the accused is a child. In such circumstances, subsection (2A) applies such that if the court is considering dispensing with the protection of subsection (1) for the child witness, it must also consider the implications for the child accused. If the court decides that identifying the child witness is likely to identify the accused child and that that is not appropriate, then the child witness should not be identified. However, it should again be noted that the protection of anonymity afforded to a child accused is not absolute because section 93 does allow for those protections to be lifted by a court in some circumstances.
Subsection (1B) disapplies the prohibition on publication in subsection (1) where the child against whom the offence is alleged to have been committed has attained the age of 18 at the time the proceedings have commenced. The protections will automatically disapply in such circumstances. There are two exceptions to this. The first is where this would lead to the identity of child who is a witness or another victim in the proceedings who remains a child. The second is where this would lead to the identity of a child accused in relation to the proceedings, contrary to section 93 of the Act. As I stated, section 93 protects the identity of child offenders or children accused of a criminal offence.
Subsection 1(b) also inserts subsection (1C) after section (1B). Subsection (1C) specifies that subsection (1B) does not affect provisions in other legislation which preserve the anonymity of a victim.
Section 1(c)(i) amends subsection 252(2) by substituting "Subject to subsection (2A), the court" for "The court".
Subsection (2A) relates to matters the court must consider if dispensing with subsection (1) restrictions. I wish to provide a point of clarity relating to the new subsection (2A). The reason this subsection is inserted is to deal with circumstances in which the court must consider situations involving more than one child witness or victim to the proceedings. This subsection ensures that, when considering whether to dispense with restrictions relating to a child witness or victim, a court will not dispense with the requirements of subsection (1) where this would lead to the identity of another child who is also a witness or victim of an offence to which the proceedings relate. For example, where there is more than one child witness or victim in a case, the court must consider the best interests of each individual witness or victim when deciding whether to lift restrictions and can consider the extent to which restrictions should be lifted in respect of each child. Similarly, the court must also consider whether dispensing with restrictions in respect of a child witness or victim would lead to the identity of a child accused in respect of the proceedings, contrary to section 93 of the Act.
Subsection 1(c)(ii) amends subsection 252 by substituting "best interest of the child" for "interests of the child". The best interests of the child principle is increasingly incorporated into new policy and legislation affecting children and is therefore increasingly applied by the courts. The best interests of the child will not always be the single overriding interest. There may be other competing interests at stake, such as other children, the parents or the public interest. However, in accordance with the principle, the interests of the child must be the subject of active consideration and the court needs to demonstrate that the interests of the child have been explored and taken into account as a primary consideration.
Section 1(2) of the Bill makes provision for the changes effected to apply immediately both to the reporting of old proceedings and to new proceedings. This means that the identity of a deceased child which could not be published since the decision of the Court of Appeal in DPP and EC v. The Irish Times and others can be published once the amended section 252 has been commenced. It also follows that the identity of an adult accused or convicted in relation to such a death can be published once the amended section 252 has been commenced.
Section 2(1) sets out the Short Title of the Bill. Subsection 2(2) contains the collective citation.
Section 2(3) relates to the commencement of the Act. The Act will be commenced by way of statutory order, which is the most efficient way to bring the Act into effect. Section 252 creates a criminal offence. As such, there is a need for people, including the media, the courts and the Director of Public Prosecutions, to know in advance the date on which the new provisions will come into force. This section means there will be certainty about the date of commencement and that the public can be informed in advance of the date of commencement.
Article 25.2.1° of the Constitution provides for a Bill to be signed not earlier than five days and not later than the seventh day after it has been presented to the President. We will not know in advance on which day the President will sign the Bill. This means there can be a short delay before a new Act is promulgated and becomes a matter of public record. My officials will be advised as soon as the President has signed the Bill. I can then sign the commencement order without delay and it will be promulgated by my Department and be a matter of public record as a statutory instrument.
I again thank Senator McDowell for introducing the Bill and for his engagement on this issue both inside and outside the Seanad. I again thank Deputy Jim O'Callaghan for his engagement on the issue. He recently published a Private Members' Bill on this issue in the Dáil along with Deputy Murnane O'Connor and it was taken into account in our overall considerations.
I am sure Members across both Houses of the Oireachtas are as determined as I am to enact the Bill and amend this legislation to ensure that parents most importantly can speak publicly in the media to honour the memory of their child in such tragic circumstances.
A number of families have been affected by the ruling of the Court of Appeal and I hope that we can work together quickly to bring this legislation to a successful conclusion.