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Seanad Éireann debate -
Monday, 15 Feb 2021

Vol. 274 No. 6

Children (Amendment) Bill 2020: Second Stage

I move: "That the Bill be now read a Second Time".

The Children (Amendment) Bill 2020 has emerged in certain circumstances which may be somewhat surprising to many. The Court of Appeal's civil division delivered a judgment on 29 October last. The presiding judges were the President of the court, Mr. Justice Birmingham, Ms Justice Kennedy and Ms Justice Ní Raifeartaigh. The case was the People at the Suit of the Director of Public Prosecutions and EC.

The appeal they were dealing with was an appeal brought by The Irish Times, Independent News & Media, RTÉ and the NewsGroup newspapers against an order made initially by Mr. Justice Michael White and subsequently by Ms Justice Carmel Stewart in the High Court directing that the identity of the child, the subject matter of the prosecution in question, who was the victim of what was an apparent homicide, should not be revealed. The circumstances are quite particular to the facts as found in that case, one of which was that, in the end, the accused person was found not guilty by reason of insanity while the question of the child being identified as the alleged victim was the subject matter of the two judicial directions to which I have referred.

The matter was appealed to the court of civil appeal by the newspapers in question, and the judgment handed down on 29 October 2020 in effect rejected their appeal on the grounds that section 252 of the Children Act and the definition of "child" did not exclude a deceased child, the victim of an alleged offence. Of course, the matter was decided on its narrow facts but the reasoning of the court had a much wider implication because it referred to cases where there were convictions to start with and also to cases in which a variety of offences could have occurred and a variety of circumstances might have arisen. In response to that decision, and particularly in response to what was stated by the President of the Court of Appeal, Mr. Justice Birmingham, in paragraph 14 of his decision, this Bill was generated by the Independent group of Senators in this House, whose support I am grateful for.

Paragraph 14 states:

I appreciate the media may find the ruling surprising and that they may say that it involves a radical departure from what had been a long-established practice. They may say that the outcome is an undesirable one and may be in a position to make that argument with some force. Nonetheless, the language of the statute is clear and unequivocal and, enjoying a presumption of constitutionality as it does, must be given effect to. If change is required and if it is desired to return to previous practice where it was possible to report cases involving the deaths of children, then it is a matter requiring intervention by the Oireachtas.

It is in that context, without challenging at all the correctness of the decision of the Court of Appeal, but bearing in mind its scope, that this Bill was introduced to the House.

In parallel with the Independent group's initiative in introducing this Bill to the House, my good friend Deputy Jim O'Callaghan introduced a Private Members' Bill to much the same effect in Dáil Éireann. Both he and I discussed between us, and subsequently with the Minister, whom I welcome to the House today, and her officials, how this matter could best be remedied. The fact that my Bill was chosen was partly the luck of the draw. It does not reflect in any way on Dáil Éireann or Deputy Jim O'Callaghan's Bill; it just has to do with what was considered the most expeditious way of dealing with the legislation.

Obviously, it is a huge injustice to the parents of a child who is killed in a homicide that media cannot carry coverage of the fact that their child was the subject of court proceedings for an offence in which a conviction took place when the public will probably in most cases be well aware of the identity of the person convicted. It is a major reduction in the rights of apparent free speech and the rights of parents to tell their story in public and to express their tragic loss in many cases and their feelings about what has happened to their child that the law should have this clearly unintended effect.

This House and the other House are intended to presume the consequences of the clear language we use. Going back to 2000, when the Children's Bill was enacted, nobody saw the Bill as having this effect. Perhaps that is a signal warning to us all to be extremely careful in parsing and analysing legislation and not to rush things through without careful consideration of precisely what we are doing. For 19 years after that legislation was passed, nobody thought of the dimension which arose in the DPP v. EC case and nobody thought to suggest there was a problem with it.

I welcome the approach being taken by the Minister for Justice, Deputy McEntee, to this matter. All of us on all sides of both Houses, I presume, want to take up the invitation put by the President of the Court of Appeal, Mr. Justice Birmingham, that if this is not the desired outcome, then it is a matter for the Oireachtas to deal with. I welcome the open attitude of the Minister in adopting one or other of the two Bills, either Deputy O'Callaghan's or mine, signalling her willingness to do that and getting on with the process of legislating in this matter.

Today is just the Second Stage and the Minister's Department has kindly indicated to me that it proposes making various amendments to the rather simple formulation which I and my colleagues have put forward as a remedy to this problem. There are unforeseen consequences lurking here, whichever way we go. To take one example, if a sibling who was a child murdered younger siblings, can those children be identified in circumstances where the person who murdered or killed those children is also a child? There are corners around which we have to look and I welcome the fact that the Department is putting a lot of effort into making sure that in remedying one problem, we do not create another one or allow it be said that a rush to legislate opened up another problem. I recognise the Minister's willingness to consider the matter and to proceed carefully with it. I fully concede that it is not devoid of complexity. Such amendments as the Minister has outlined to me through her officials seem to be going in the right direction but I ask that whatever is done be considered very carefully.

The example I gave is just one example. I have never been overly attracted to the notion that in regard to all child offenders for all time, including 17-year-olds, it should never in any circumstances be permissible to refer to the fact that they were convicted of an offence. I know this comes from a long line of law to the effect that children are in a special category, that they must be capable of redemption and that their reputations cannot be tainted for all time by a childhood offence. I accept that but there are sometimes practical outworkings of that which cause immense difficulties.

This House will be aware of the difficulties that arose in a similar case in the United Kingdom where the media did or did not behave well regarding a particular murder of a child, and all the complexities which followed on from that.

The principle of this Bill is, effectively, to take up the invitation given to the Houses of the Oireachtas by Mr. Justice Birmingham to legislate in the matter if the unexpected and unwanted implications of the judgment in the DPP v. EC case are to be readdressed by the Legislature. I, therefore, believe there is all-party backing for the principle of this legislation. I concede that it will require very careful tweaking this way or that and very careful consideration. Although the Minister is under immense pressure to legislate very fast on this, and I have no problem with speeding legislation through the House, it will have to be careful. These particular matters I have raised should be addressed.

We recently had a case, and again I will be very careful in what I say, in which a person legally considered a child was the subject of what appears to be a homicide of some kind, subject to defences. It is strange that the result of section 252 and the judgment of the Court of Appeal has resulted in the situation that great publicity is given to an event and then a subsequent criminal prosecution is wholly divorced from that great publicity. The public are not entitled to know whether there have or have not been prosecutorial consequences for that particular death.

We are under these kinds of pressures but we must get this right. In those circumstances, I commend this Bill to the House. I thank the Minister for the generous approach she has adopted. I thank Deputy O'Callaghan for his generosity in his discussions with me on the matter. I, therefore, have pleasure in moving the Bill on Second Stage. I look forward to a detailed Committee Stage session on this Bill to make sure it is right and does not do anything none of us wish to be the consequence.

I thank Senator McDowell. Is Senator Mullen or Senator Craughwell seconding the Bill?

I am delighted to second this Bill. I commend Senator McDowell on introducing it so swiftly in the wake of this problem coming to light. As he illustrated, it raises the issue of why the Oireachtas needs to take its legislative role so seriously. I spoke last November during the hate crimes legislation about how careless drafting or rushed legislation can lead to unforeseen consequences. This children's legislation was intensely and intensively scrutinised. Therefore, it bears out all the more the importance of careful analysis of legislation.

As we know, this particular issue arose from a dispute between the DPP and a number of media outlets over whether a person identified only as "EC", who had committed a homicide against her child, could be publicly identified, as had been the media practice up to that point. We are familiar with Mr. Justice Birmingham's judgment at the Court of Appeal and, of course, it is clear, as has been said, the judge had no option but to interpret the law as he found it. Section 252 of the legislation, which "provides that a report which reveals the name, address or school of the child or includes any particulars likely to lead to his or her identification" should not be published, was only modified by the possibility of the court dispensing with the requirements of that section where it is satisfied that it is appropriate to do so in the interest of this child. It is clear that is so narrowly drawn that it could not possibly comprehend a situation where the child in question was deceased. It is certainly not for me to prejudge what precise solution the Government will come up with having regard to the complexities to which Senator McDowell alluded. It seems, however, that had the legislation provided a clause that, where otherwise, the court is of the view that it is just to publish, that such a saver would, perhaps, have prevented this particular decision.

On any plain reading of section 252 as it stands, it is impossible to argue with the interpretation of the court. Through simple logic and the rules of statutory interpretation, it simply was not open to the Court of Appeal to substitute what might have been the intention of the Oireachtas in 2001 in place of what the clear meaning of the section was.

The recent case in Limerick highlighted just how urgently these changes are needed. I again commend Senator McDowell for bringing this Bill forward and I commend the Government on its willingness to deal with this matter in early course.

I thank the Minister for coming here. This is an extremely important issue and I welcome this amendment Bill coming before the House. It is a matter that needs to be rectified and I am glad the process is starting today. I commend Senator McDowell, who brought this Bill before the House, and I want to acknowledge the work, as he did, that he and my colleague, Deputy Jim O'Callaghan, have done on the matter since the anomaly came to light. I also must mention a similar Bill that Deputy Jim O'Callaghan laid before the Dáil recently.

This Bill is amending section 252 of the Children Act 2001. The section provides that in any proceedings that involve a crime committed against a child, a child cannot be identified after proceedings have commenced. The legislation makes complete sense if a child has been subject to sexual abuse or has been assaulted. Quite rightly, a child's privacy and the protection of same are at the forefront of all of our minds as it would undoubtedly add tremendously to the trauma of that child if his or her details were to be publicised in the newspapers or the media. It would add to the trauma of the attack already inflicted upon the child.

However, as many have stated, it was not foreseen or wished that the provision would apply in respect of a child who has been killed. This was never the situation before the Court of Appeal ruling last year. The ruling meant that a child killed by someone else cannot be identified once that person is charged and the person accused of killing the child cannot be identified if doing so would also identify the child. The judgment has led to an unusual situation whereby deceased child victims can be named up to the point at which a person is charged, at which point his or her name can no longer be reported. Questions have also been raised on whether the judgment prevents a person, who was a victim of an offence as a child and who also seeks to waive his or her anonymity as an adult, from doing so. The Court of Appeal judgment has been criticised. It has brought a lot of hurt to the families of the victims who rightly feel aggrieved that they are unable to name their deceased children publicly as a result of it.

The consequences of the ruling have resulted in significant harm and damage. It is a significant issue of confusion for the public. People are informed of the name of the child after the child has been killed, which is correct because the murder of a child is a major issue in our society. Individuals are informed, the public is informed and the child is named. However, once proceedings are commenced, the media cannot identify the name of that child. This leads to absurd situations in which a child would still have been named in the media for a period of days and once the individual is charged in respect of a child's death, again the child cannot be named. This is the reason the legislation needs to be changed.

The Bill respects the requirement for a balance between protecting the public and the victims. The protection of child victims may sometimes require anonymity for the perpetrator in offences such as female genital mutilation, sexual assault, serious non-fatal injury and incest cases. The judgment has led to an unusual situation and questions have been raised on other issues. These questions and many more, as Senator McDowell has noted, require the careful consideration of the Department in its approach to this amendment Bill. The Department must re-examine the unforeseen circumstances that may arise due to the changing of section 252. I am glad this will be rectified for the families who, after the passage of this Bill, will be able to name their children who tragically lost their lives.

I look forward to seeing the Bill in its final form in the House.

I acknowledge the considerable work done by the Independent Senators, including Senator McDowell, and Deputy Jim O'Callaghan in rectifying what is a patently unjust situation arising out of the court's interpretation. I thank the Minister for not standing on ceremony. She has a sense of urgency about rectifying this situation for families who have experienced great hurt as a consequence of it, although there was no other conclusion that could have been arrived at by the judges deliberating on this matter. In doing their job and making such a strict and literal interpretation, we have unfortunately arrived at a situation where it is possible that justice for child victims is not seen to be done. It is urgent that we address this issue. The section of the Children Act 2001 was clearly about ensuring that children would not be forever identified with the crime perpetrated against them or to which they were witnesses. In so doing, I am confident that the view of legislators was towards child protection. It is important that, as we deliberate on this Bill, we continue in that mindset. This is about child protection at all times. In addressing what is a narrow set of circumstances and interpretation, it is important that we not have many unintended consequences flowing from the Bill.

The controversy arises around the child who has died. No one would attest to there being anything controversial as regards the living child. People understand that a child has a life to live and deserves his or her anonymity. However, we need to allow the identities of children who are deceased because of the most unspeakable of crimes to be published. It is the right of parents and families to speak of their children and to remember all that was lovely about them. We could have arrived at a situation where families' victim impact statements or their statements on the steps of the court following the conclusion of a trial could not be reproduced in the media. Families would not get to bring to life all that was good, lovely and to be remembered about their loved ones. It is part of their mourning and memorialisation and part of keeping the memory of their children alive.

Our adversarial judicial system is correct and I stand over it, having been in it many a time on the side of both the prosecution and defence, but we can sometimes end up with a defence narrative that is subsequently accused of being exaggerated or one-sided. We have seen sordid details of the deceased coming out as the narrative builds on behalf of the defendant. It is important that we have a right of reply and that the record is put straight. The tenderness and humanity of the deceased needs to be brought out subsequently. The media have a role to play in telling the victim's story following the conclusion of a trial, as we have seen in the past number of years, including in particular notorious cases. Parents have the right to reclaim the identity of their child following the conclusion of a trial and to speak freely.

It is important that adults who were victims of crimes as children get the opportunity to have the right to waive their anonymity. We will see that being addressed in the Government's amendments. Although the people in question were children at the material time of the offences perpetrated against them, for example, sexual abuse, they are entitled to waive that anonymity.

We see through a different lens when we read the section now. Previously, I would have seen nothing wrong with it, but then the case came through and I now see it differently.

What I do see in the section now is that all of the power sits with the court whereas I believe victims should have a say in whether they have a right to lift that anonymity. It is about the court. It is important that the locus of the right to waive stays with the victims although they are now informed and well advised adults. It is important that we do this.

I very much support the idea that child perpetrators are protected, that their anonymity is always protected and that there are not unintended consequences arising out of the Bill that affects this. If we are going to have a restorative justice model and rehabilitation it is important that they get to start again.

I thank the Minister for her approach to this issue. It has been great. I thank her for all the hard work. We could have had to wait for the Supreme Court and for the Bill to be struck down but, thankfully, we did not. That we had it ready to go is a fine part of our Legislature. It is something to be proud of. I thank the Minister.

I welcome the Minister to the House. On behalf of the Labour Party I welcome this important Bill, which we are glad to support, and I commend Senator McDowell and his colleagues for bringing it forward so swiftly after the judgment was delivered in the Court of Appeal on 29 October 2020. Senator McDowell had this Bill in with us in the first week of November. Other Oireachtas Members, including Deputy O'Callaghan, also brought forward legislation to deal with what others have rightly described as this unforeseen consequence.

I was struck by Senator Seery Kearney's point on the wording of section 252 of the Children Act. Reading it before this line of case law, one might well have thought that subsection (2) would have governed against this interpretation but, in any case, that is to revisit perhaps a previous reading. We have the very clear words now of Mr. Justice Birmingham. We do need to move legislatively to address these words and ensure the terrible injustice that has resulted for bereaved parents is not allowed to continue. The Minister has spoken very eloquently about this and all of us have been deeply moved by those who have come forward through the media to describe the pain and trauma of being faced with this consequence whereby the wishes of victims and families of victims are not respected, and where people are left voiceless.

I want to speak briefly about our views of victims in the criminal law more generally. I know we will be able to parse the detailed provisions of the Bill on Committee Stage, and I am glad we will be able to do so, but we should see it as fitting within a general package of reforms to give victims more of a voice in our criminal justice system. I am really glad the Minister announced on foot of the O'Malley report into the review of law and sexual offences that she will look at giving complainants more of a voice through sex offence trials. Many years ago, along with colleagues in Trinity College, I did a report with the Dublin Rape Crisis Centre on the legal process and victims of rape, as a result of which we recommended separate legal representation for complainants in rape cases where applications were made by the defence in the absence of the jury to bring forward evidence of prior sexual history. It is a recommendation that is now established in our law through the Sex Offenders Act 2001. It is something that the Gillen report in Northern Ireland looked at very closely and made recommendations on foot of it, and we will see change there also.

The Bill is part of a number of ways in which we moved to look at how we can encompass more of a voice for victims in our criminal justice system, without encroaching unduly of course on the rights of the defence. This came home to me last night again looking at a programme about Gerry Ryan's life. On his radio show he gave a voice to Lavinia Kerwick, who so bravely came forward in the early 1990s. Her voiced experience of being the anonymous complainant in a rape trial gave rise to the introduction in 1993 of the victim impact statement, which has made a huge difference in practice in our criminal courts and has enabled victims to feel they have more of a voice in the process. Of course, it took some time, however, for it to be recognised that the families of victims of homicide also needed that voice.

The legislation had not adequately addressed that. Indeed, a sort of practice had built up among trial judges of allowing families of victims of homicide to speak about the impact the homicide had on them. That change was made in 2010. So we are learning and this legislation is part of that process of learning.

I want to speak briefly on a number of other points arising from this Private Members' Bill and the context in which it was brought forward. Others have spoken about the need for careful scrutiny of legislation, particularly criminal justice legislation. That is absolutely true and clearly exemplified by the case law we have now seen on section 252. The 2001 Act itself was heavily scrutinised. It was seen as a major reforming piece of law relating to children at the time. I have to say that subsequently, it was somewhat shambolic in the way in which it was commenced. I recall at the time, as a practitioner, representing children as young as eight and nine years of age before the criminal courts. We all eagerly anticipated the change in the age of criminal responsibility which the 2001 Act was supposed to usher in. It did not happen in the end and the provision lay dormant. It was finally amended in 2006 and only brought into law in July 2007. There were a lot of well-meaning reforms but due to a lot of difficulty with their commencement, it was brought in somewhat in a piecemeal way. Again, this raised the need for codification to ensure we have a very clear body of criminal statute law and of law relating to children, in particular. If we have piecemeal reform, the danger is that provisions are not parsed properly, unforeseen consequences occur and we see developments occurring as we have seen with section 252.

I will finish by thanking the Minister for her engagement with members of the Opposition on a number of Bills, including this one. I thank her for her engagement with Deputy Howlin on important pieces of law relating to children's rights and young adults, particularly Coco's law. I thank her for engagement with me and my Labour Party colleagues on the Born Here Belong Here campaign, which seeks to amend citizenship law for children born in Ireland to parents who are not Irish citizens. It is very important that we continue to engage. I thank the Minister for her willingness to do so constructively with those of us in opposition.

The next speaker is Senator Warfield and he has sé nóiméad.

I will not use all of my time. I think there will be another Sinn Féin speaker in the House. I want to express my support and that of Sinn Féin for the Bill. I also welcome the fast pace of its progress. We would hope to see more examples of such co-operation in this House. We have seen it this year in this House. I think it is more akin to the co-operation we saw in the Twenty-fifth Seanad.

I extend my sympathies to all of the families who have been affected by the subject of today's Bill. Of course, it will not change their situation but I hope it will bring some measure of comfort. We want to see a situation where parents of children who have been killed can use their victim impact statements to the court to tell the story of their loved ones. This is a frustration that many families have felt. It should not have been left to the families to worry about possible legal implications. Many families of children who have been killed will always want to remain out of the public eye and that right should always be fully respected. Others draw comfort from talking publicly about their children and want to celebrate their memories. Part of this may involve referring to the circumstances of their deaths. Therefore, we obviously need to remove the barrier that prevents families from fully remembering and celebrating the lives of those tragically taken from them. They may seek to remember them in the name of an organisation, foundation or charity and that example was mentioned to me by a friend with whom I spoke before this debate.

I welcome the Minister for Justice to the House. She said recently that issues have arisen on foot of the original ruling regarding the cases of people who were children at the time of the offence but adults when proceedings were taken against the perpetrators. Can we expect more legislation or can this be achieved by a ministerial order?

We should also use this time to focus on the supports available to the families and loved ones of children who have been killed. These families will now have the right to refer to their children, but we must ensure adequate supports are available to them. I ask the Minister to use the cross-party consensus and dynamic of this issue to ensure that victim supports are enhanced for the relatives and friends of child victims.

I welcome the Minister and I commend Senator McDowell and the Independent Group on bringing this Bill forward. It is good to see the Government supporting constructive legislation from the Opposition benches. One of the ways we can most effectively make good legislation is when we take good ideas, regardless of where they come from.

As other Members said, the legislation follows the Court of Appeal's decision regarding whether a child can be named after the child has been murdered and the interpretation of section 252 of the Children Act 2001. While the interpretation is understandable on a reading of the law, it is the case that a situation in which a family that has lost a child cannot speak about that child, the loss of the child and the circumstances is an unforeseen cruelty on top of cruelty for that family. It is very sad, and it is important to try to address it expeditiously.

I have certain concerns about the Bill, and other Members have mentioned them. I recognise that the proposer of the Bill has been clear that work will have to be done to tease these out. Sadly, there are situations where not only is the victim of a murder, attempted murder or manslaughter a child, but the perpetrator is also a minor or a child. It is a major additional tragedy when somebody has committed such an awful crime so early in his or her life. It is important we would reflect and manage in the law mechanisms which give priority to the rights, to the story and to honouring the victim of a crime, but we must also give due regard and respect to protecting the childhood status of a perpetrator. There are other sections of the Children Act, such as section 93, which address some of the situations when a case is before the court. That gives certain safeguards whereby, except in such circumstances where, for example, somebody is at large or where it is in the public interest, the perpetrator would not be named. Those address situations when a case is before the court, but this legislation might have to deal with more nuanced situations subsequent to a ruling or to the case concluding. I am sure we will be able to tease this out together in a way that ensures that while a victim and the family are able to discuss what matters to them, at the same time we respect the fact of a perpetrator being a minor and find a way to do that appropriately.

On the question of the media's interest in the right to name a deceased child, the media naming is important but it is also important to have a culture of respect in that regard and regarding those questions of the public interest safeguards and what are the appropriate measures or checks and balances. It may be that this is not simply a matter of an absolute right or no right, but a right with safeguards and caveats. We will be able to tease those out. I am confident that the legislators in both Houses who have the intent of the public good in mind will be able to address those issues.

There is a related issue. We might propose amendments to this Bill on Committee Stage, although I will certainly support it today. I recognise that it is an important step forward. However, I wish to identify an issue which, for me, is related. It is the trauma that is inflicted by the silencing when a tragedy or abuse takes place, and it then becomes invisible. Sadly, there is that related situation under way, at present, in respect of institutional abuse.

The Minister will be very aware of the serious and time-pressing concerns expressed by many of those who testified to the mother and baby homes commission about their data protection rights and also their more immediate rights in terms of the recordings of their testimony - their voices - being deleted or them not having access to their own stories. In one way, this is a side issue to the one we are debating but, in another, it goes to that same core matter of respecting children and their stories, even in the many years that follow.

Many people who were children at the time of the mother and baby homes and testified to the commission as adults are very concerned. They are asking that the Minister would support her colleague, the Minister for Children, Equality, Disability, Integration and Youth, Deputy O’Gorman, in seeking to extend, if necessary, the terms of the commission to ensure that appropriate actions can be taken in respect of the rights of those who were children at that time and are now adults who want to have their rights vindicated. They want their stories to be heard. They want a copy of their stories. They want their rights and to see justice done. I want to flag that issue to the Minister.

This Bill is positive. It is a good step forward in addressing an unforeseen consequence. We will have to avoid other unforeseen consequences. In general, this legislation, and all our legislation, needs scrutiny again in the light of the referendum on children’s rights, which was that collective decision we, as a nation, made to look to children's rights. I imagine this will not be the first legislative measure we will need to review and strengthen to ensure that Ireland can be a leader in respect of the rights of the child. I again commend the proposers of the Bill.

I commend Senator McDowell on bringing forward this legislation so soon after it was pointed out that it was needed. I acknowledge also the contribution of my colleague, Deputy O'Callaghan, in bringing forward legislation. It is very welcome that this legislation has been produced and that the Government is supporting it because it has been very clear that there is a need to address the Court of Appeal ruling that has prevented parents from speaking publicly about their deceased child in cases where the child was unlawfully killed. We cannot begin to imagine the death of a child but, in particular, the violent and tragic killing of a child. It is important that the memory of that child be revered in a way that is appropriate to the wishes of the parents. The situation often arises where the parent wants to address what happened to the child. Part of that is honouring the life of the child but another part is trying to ensure that similar tragedies do not happen again and that lessons can be learned from everybody.

This Bill permits the identification of those accused of and convicted of the homicide of children. We need to ensure that it is expedited. Having the Bill taken so early and the Government making a swift decision on it is welcome. We must change the law promptly because it is unfair to the memory of children who have been killed that we allow the current position to continue to obtain.

The background to the Bill is that it came about as a result of an unintended consequence of the Court of Appeal's ruling last year to the effect that the provision in the Children Act 2001 preventing the identification of a child where someone is charged with an offence against him or her does not exclude deceased children. This ruling meant that a child killed by a person cannot be identified once that person is charged. In addition, the person accused of killing a child cannot be identified if doing so would also lead to that child being identified. That is wrong for many different reasons. It is enormously unfair on the families of deceased children that they have to go through this process whereby the memory of their children is being removed from history. The mother of an 11-year-old boy who had been murdered was compelled recently to disguise her identity on television as though she was some type of criminal who could not be identified on the news.

By revealing her identity, the identity of her dead child would also have been revealed. It is manifestly unfair to the families of deceased children that the law operates as it does.

This has been a major source of confusion for the public. People are informed of the name of a child if that child has been killed, which is absolutely correct, because it is such a major event in society when a child is killed. Individuals are informed, the public is informed and the child is identified. However, once proceedings commence, the media cannot name the child, leading to absurd cases where a child would have been named in the media for a period of days but once an individual is charged in respect of the child's death, the child can no longer be named. That is even just one reason this legislation must be changed.

I know the Government has a number of amendments to the Bill to ensure it delivers its vision and shared aim. It is important these amendments do not give rise to any unintended consequences that might affect the protection afforded by the Act to child witnesses or child victims in the criminal justice process. Section 252 of the Children Act 2001 currently provides that in any proceedings involving a crime committed against a child, the child cannot be identified after the proceedings have commenced.

This legislation makes sense if the child is being subjected to sexual abuse or has been assaulted and it would clearly exacerbate the trauma for the child if his or her victimhood would become a media story. It would aggravate the trauma of the attack already inflicted upon the child. However, it was never intended that the provision would apply in respect of a child who had been killed. It has not applied to that extent because before 2019 there was no such understanding of the application of that provision. It was never the case that children who had been killed were anonymised once a case came to trial.

I commend Senator McDowell on all his work to bring this forward and the Government on taking this Bill and bringing forward the necessary amendments to ensure we can achieve these necessary aims.

I welcome the Minister of State to the House. I also stand in support of my colleague, Senator McDowell, and compliment him on the speed with which he reacted to the case that arose. It is one of the great aspects of this House that we are lucky to have so many brilliant legal eagles in both the Dáil and Seanad who are able to immediately respond to something like this. I also compliment the Minister for taking on board the concerns of Senator McDowell and, more important, the concerns of the families. She is to be congratulated on the way she has approached these matters.

I am aware the Government may introduce amendments on Committee Stage and I ask that whatever amendments come before the House, the Government would work with Senator McDowell, Deputy Jim O'Callaghan and Senator Bacik, among others, who are experts in the area of law. It may save much time on Committee Stage if various amendments are ironed out early on.

The Bill sets out to rectify the anomaly that was created by the Court of Appeal in its judgment and the court had no choice at the time but to deliver on that. Some people have referred to the ruling as absurd. I do not know if we can say that, as the judge had to act on whatever was before him.

It is heartbreaking when we think, in particular, of mothers and fathers who have lost a child to murder. The only way they can keep the memory of the child alive is by telling their story. I am mindful today of the Dullard family and Jo Jo Dullard who disappeared so many years ago now that I cannot remember. The family has kept her memory alive by constantly talking about her and bringing her story into the media spotlight. I meant to speak of the young boy, who was about 12 years of age, who disappeared in Dublin during his lunch break one day. I forget his name. Again, until recently, his mother has kept his memory alive by discussing him.

As part of the healing and grieving process, it is most important for parents to be able to name their loved child. If that grieving process is served by having the child's name in the public domain, then that is where it should be. I cannot but think of the most recent case of the mother who had to anonymise herself. What must she feel? All she wanted to do was to talk about her beautiful child who was lost. Those of us who have children know that if anything happens to them, we want to remember them as they were. We want to remember everything about them.

I commend the Minister on taking this on board. I hope that this Bill is passed quickly in order that those parents who are grieving today can start to speak about their children to journalists again, because that is the only way they can keep their children alive in their own minds. There is nothing worse in this world than losing a child, but losing a child to murder must be absolutely desperate. I am not going to take up any more of the Minister's time. I thank her for moving on this Bill. I hope the remaining Stages of the Bill move quickly.

I thank Senator McDowell and the other proposing Senators for bringing this Bill before the Seanad. As we are all aware, and as the Senator and others have clearly explained, the Bill is in response to issues 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 relation to 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 profound negative impact the ruling is having on grieving parents who are unable to remember their deceased children's names or legacies is very clear to me. Like the Senators here and many others, I want to give power back to those parents so that they can remember their children or their family members in the way that they wish to do so. I have been working with Senator McDowell and Deputy Jim O'Callaghan on this issue, and we agreed that a collaborative approach is the right one to take. Having committed to finding the fastest way to address this issue, Cabinet agreed last week to support the Private Members' Bill introduced by Senator McDowell as the most expeditious way of delivering on this commitment.

To outline the current law, 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. The current section 252(1) states 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 10 his or her identification, shall be published or included in a broadcast.

Section 252(2) does permit a court to lift reporting restrictions if it is satisfied that this would be in the interests of the child.

Previous to the judgment of the Court of Appeal in the EC case, the issue of reporting restrictions in the case of a deceased child victim had not arisen.

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 this section as not including a deceased person who was a child at the time of death.”

The main issue to be addressed is to allow the identity of a child who has been unlawfully killed to be published and it would also remove the current difficulties with identifying the person charged in connection with the child's death.

A further issue which has arisen on foot of the ruling relates to cases with respect to persons who were children at the time of the offence but adults when the proceedings were taken against the perpetrators. Mr. Justice Birmingham also added on this point that "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." This issue will also be addressed by way of Government amendment.

Regarding this Bill, the text of subsection (1) is the same as the existing text of section 252, but for the inclusion of the two references to “image”. Subsection (2) is entirely new. The focus of the provision is on the publication of reports, pictures or images identifying the person accused or convicted of homicide offences.

The new subsection (3) is based on the existing subsection (2) of section 252. The current provision permits the court to make an order dispensing with the requirements of subsection (1) where satisfied that it is appropriate to do so in the interests of the child. By contrast, the new subsection requires the court to be satisfied that it is appropriate to do so having regard to the interests of the child and to the public interest, including the protection of children generally.

Subsections (4) to (6), inclusive, reflect the wording of the current subsections (3) to (5), inclusive. The intention of section 3 is to allow the provisions of the new section 252 to apply retrospectively.

I have received Cabinet approval to support this Bill, subject to proposed Government amendments. There are some policy and drafting issues with the Bill which I propose to address by way of Government amendments.

The focus of the Bill is to permit the identification of a person accused or convicted of homicide offences against a child rather than the identification of the child victim. Subsection 2 does not include the offence of dangerous driving causing death or serious bodily harm pursuant to section 53 of the Road Traffic Act 1961 against a child. I will introduce an amendment to address this.

Subsection (2) does not provide for the publication of reports, pictures or images of a deceased child victim in the absence of an order of the court under the new subsection (3). I will introduce a new subsection, by way of amendment, to allow the identity of a child against whom an offence was committed to be published in reporting on such proceedings.

This will also allow reporting where parents wish to speak publicly about their child who has died. This amendment will be subject to the provisions of section 93 which involves restrictions on reports of proceedings in which children are concerned. This means that where an accused is a child, his or her identity will be protected. The amended section will also continue to protect the identity of living child witnesses and victims who are involved in the proceedings.

Even though subsection (3) expands the grounds for lifting the restriction, it is not clear that this would permit the media to report on parents of a murdered child who speak about their bereavement and pay tribute to their child, or on the content of victim impact statements in such circumstances. It would not necessarily allow for the publication of the identity of a deceased child victim, nor would it necessarily protect other child witnesses.

Expanding the grounds for lifting the restriction in this way would provide that a court could make an order permitting the publication of details of a child victim, whether alive or deceased, or details of a child witness, provided that it was both in the interests of the child and in the public interest to do so. It could be difficult to reconcile these interests in a given case.

The details of a deceased child victim could only be published if, and where, an order was made. Accordingly, if an application was not made to the court, the media would not have the right to publish details of the victim. There is a policy issue as to whether newspapers and journalists should be put to the expense of having to apply to court for such an order where no order is sought by a party to the proceedings.

I have outlined that I will bring a separate amendment to allow the identity of a deceased child against whom an offence was committed to be published in reporting on such proceedings. This will apply automatically and will not require an order of the court. It is therefore not necessary to expand the grounds in subsection (3) for the lifting of restrictions.

I will, however, bring forward an amendment to substitute "best interests of the child" for "interests of the child". The concept of the best interests of the child is an important principle under the UN Convention on the Rights of the Child and a well established principle in Irish law and policy. This key principle is central to the national policy framework for children and young people, or the BOBF framework. It is increasingly incorporated into new legislation affecting children and increasingly referred to in case law since the constitutional amendment on children.

A further issue which many Senators have mentioned and which has arisen on foot of the ruling concerns cases in respect of persons who were children at the time of the offence but adults when the proceedings were taken against the perpetrators. I will bring forward an amendment to address this issue insofar as the recent judgment has affected it. However, it is not the purpose of the Bill to stray outside the issue of child protection. The protection of adult victims and the lifting of that protection are a separate issue. There was a woman who spoke on "Prime Time", I think, last week who could not name herself. We have all heard of many examples of victims of abuse who wish to name themselves, who are now adults and who cannot do so. We need to address that where it is their wish to waive their right to anonymity.

I will also bring forward an amendment which would allow the court, of its own motion or on the application of the DPP or another party to proceedings, to make a direction restricting any publication that is likely to lead to the identification of a deceased child or a person who was a child at the time the offence was committed but who is an adult at the time of proceedings. In this example the person may have been a child but a few weeks later or less than a year later may have turned 18 but there is still perhaps a need for his or her identity to be restricted. Such examples arise in other cases in the same way that the DPP can apply for that restriction not to be lifted where there is another child, perhaps a sibling, who may be hurt by the naming of his or her sibling.

I will bring forward an amendment to ensure that the new section 252 will apply in respect of proceedings which took place before the enactment of this Act and proceedings commenced after this Act. The wording of the section as drafted requires amending to ensure we do not inadvertently undermine protections for children who are deceased. Senator McDowell mentioned one case only in the past two weeks which this ruling has already impacted. We need to make sure that this legislation will apply to those families.

Senators Warfield and Bacik both mentioned supporting victims. This is an area to which I am absolutely committed. Last week we updated the victims charter and launched a new online platform not only to ensure that victims know the supports that are available to them but also to give them a clear route through the criminal justice system, which is often difficult and complex. There are also the different organisations that support victims of crime. I am absolutely committed to making sure they are fully funded in order that they can plan for multiple years ahead. That work is ongoing following on from the publication of the O'Malley report and the implementation of Supporting a Victim's Journey.

We will go into many of the amendments to the Bill in greater detail as we go through the Stages. I thank Senator McDowell for introducing the Bill and for his significant engagement on this issue. I thank Deputy Jim O'Callaghan also for his engagement on the issue. He published a Bill just in the past week on the very same issue with Deputy Murnane O'Connor. The collective and collaborative approach in which we are dealing with this is the best way to proceed. It is about doing this as quickly as possible and making sure we get it right and that the legislation is correct. I have no doubt but that as we pass through the various Stages, Senator McDowell will have the full support of all other Senators and Deputies to make sure that the parents on whose behalf we are all speaking will very soon be able to speak about and name their children publicly and remember them in the way that they want to do so and should be able to do so. Again, I have no doubt but that we will work together to bring this legislation into effect as quickly as possible.

I do not wish to add very much to what the Minister has said. I thank her for her contribution and appreciate that she went to the Cabinet and got leave to support this legislation on terms, so to speak, that the Cabinet understood. However, I ask the Minister not to write that in stone either because there are issues to be teased out.

I will give the Minister an example. If there were a homicide within a family where a father killed one child and another child is a witness to that, it cannot be the case that the mother cannot name the child because her other child was a witness who was on the record as having seen what happened. I am simply saying we cannot use a sledgehammer to crack that particular nut. If we want to afford anonymity to the sibling witness, so be it but it cannot be the case that the only way to do that is to make the child victim unidentifiable forever. I am just making that point. I fully accept the Government is concerned to achieve the best possible outcome but it does occur to me that there are subtleties here which would, in all probability, have us all back here in another 12 months. We have had cases where there have been child witnesses to their siblings being killed or gave important evidence in the trial. We cannot have a situation where the identity of the deceased in those particular crimes can never be disclosed because the incidental consequence would be that a child witness who was not the victim of a crime in any sense but just saw what happened would be identified.

I am just throwing that out as an example. It is not an inconceivable one and the Court of Appeal would apply the same kind of strict interpretive criteria to whatever we produce in this House now as it did to the last effort. Let us be very careful about what we actually achieve. I am not precious at all. If there are faults in what I have put forward, so be it. I fully appreciate the point the Minister made about not requiring the media to constantly have a team of counsel down in court to ask for permission to do fairly obvious things. We must have a law which is presumed to go one way unless the court goes the other way and there must be a presumption in favour of publicity rather than against it.

On whether this should apply retrospectively, I do not want to tear up that Court of Appeal decision. However, I do not want a situation where, for instance, in a specific case in west Dublin, the parents of the child in question become prohibited from ever mentioning that case again because we are not affording retrospection. This is fraught with difficulty and we must be very subtle in our approach to it to ensure we arrive at the correct result.

Having said those few words, I thank all the Members of the House who contributed to the debate. I thank the Minister and the Government for adopting the course they have. I again thank Deputy O’Callaghan for his co-operation on the matter and the Minister’s officials for their co-operation. I am anxious that we get on with Committee Stage as soon as the drafting is done. I ask the Minister not to close her mind now to amendments at that stage because we must tweak this to get it absolutely right.

Question put and agreed to.

When is it proposed to take Committee Stage?

Committee Stage ordered for Monday, 1 March 2021.
Sitting suspended at 3.30 p.m and resumed at 4.30 p.m.