Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Monday, 19 Apr 2021

Vol. 275 No. 7

Children (Amendment) Bill 2020: [Seanad Bill amended by the Dáil] Report and Final Stages

I welcome the Minister for Justice, Deputy McEntee. This is a Seanad Bill, which has been amended by the Dáil. In accordance with Standing Order 148, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject of each related group of amendments and I have also circulated the proposed grouping. A Senator may contribute once on each grouping. I remind Senators that the only matters which may be discussed are the amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

First, I thank Senator McDowell and other proposing Senators for bringing this Bill before the Seanad, and I thank all Senators who have engaged with the Bill and contributed to the discussion in the House. Having had a debate on the Bill and given further consideration to issues raised in both this House and the Dáil, the Bill is returning to this House with some Government amendments that were introduced on Committee Stage in the Dáil and passed through all Stages.

Before turning to these amendments, it might be useful to revisit briefly the purpose of the Bill, although I realise Members know and understand it. Before the DPP v. EC case in October 2020, there was a view that section 252 of the Children Act 2001 did not prevent the publication or broadcasting of material that might identify a deceased child unless it would lead to identifying a living child who was also a victim or a child who was a witness in criminal proceedings. Even in that instance, there were situations where that could be overruled. The purpose of this Bill is to restore that position. The Bill does this by disapplying or removing the restrictions on proceedings that relate to the death of a child, subject to the exceptions I have mentioned. I will give three scenarios outlining the effect of the Bill.

The first is that if there is a deceased child and no other child involved, then there are no restrictions on identifying the deceased child. Second, if there is another living child, who is perhaps an accused or a witness in the proceedings, then there are no restrictions unless naming the deceased child could identify the living child. Third, and very importantly, after that, if naming the deceased child could identify the living child, accused or witness, then the court must decide whether the deceased child can be named and subject to what conditions. It is not an absolute. If naming the deceased child could potentially identify a living child, witness or victim, there will be a provision allowing for the court and the judge to decide whether it is in the best interests of that child.

The best interests principle does not necessarily usurp all other interests in a case and will not always be the single overriding interest. There may be other competing interests at stake and the court will consider these. However, in accordance with the principle, the interests of the child must be the subject of active consideration.

The Bill is concerned only with section 252 of the Children Act. Section 93 exists separately and we are not trying to amend it. Section 93 relates to an accused child. There are already provisions under the Children Act whereby the first response is that one does not name the accused child. However, there can again be certain circumstances, such as public interest or otherwise, in which that can be allowed. We are not changing or amending that. It will simply still apply.

Turning specifically to the amendments made in the Dáil, the first two relate to subsections (1A) and (1B). They are technical and seek to make it clear beyond doubt that any restrictions on publication relate only to the protection of the interests of living children.

The purpose of the third amendment is to put beyond any reasonable doubt queries that have been raised by Deputies and Senators who were specifically concerned that subsection (2A), as proposed in the Bill, might be misinterpreted or cause confusion as to the flexibility that a court has where there is a deceased child victim and another child victim or child witness to the proceedings. I asked the Attorney General to look at this again and to reflect on the wording and the drafting. It has been recommended that we make these changes to clarify the matter. The amendment provides for the existing subsection (2) and the proposed subsection (2A) to be replaced by a new subsection (2)(a) and (b).

Subsection (2)(a) deals with proceedings relating to the death of a child. The word "shall" is used, imposing an obligation on the court to dispense with any restrictions relating to a deceased child unless the interests of a living child who is a witness in the proceedings or an accused will be affected. The court then has to consider the matter and, for example, assess in the case of a child witness whether there are conditions that could be imposed when naming the deceased child to protect the best interests of a living child witness. Subsection (2)(b) deals with proceedings where there is no deceased child. It is left to the court to decide whether it is in the best interests of a child to allow publication or broadcasting of material that might identify that child victim or witness. If there are other child victims or witnesses involved, the court must take into account the best interests of those children.

Once again, I thank Senator McDowell in particular for his considered contributions and collaboration on this Bill. I am satisfied that the amendments clarify the concerns raised and I am hopeful that we can now finalise the legislation in order that it can be commenced without delay.

Many of us have been contacted in recent months by parents who wanted to remember publicly their children but who, unfortunately, have been prevented from doing so. Every parent should be allowed and able to speak about his or her child publicly in order to secure the child's legacy. We made a commitment to those parents that we would move quickly to solve this problem. I am glad that, working together, we have all kept to that commitment.

The Bill will now go to the President, with the support of those in the House, for his signature. I will not delay in signing a commencement order once that is done. The law can be changed on 3 May at the latest and the parents affected will thereafter be able to share their precious memories of their children once again.

The speaking order will be Senators McGreehan, McDowell, Keogan, Bacik, Boylan and Seery Kearney. Senators are not limited in terms of their contributions but we need to conclude by 2.15 p.m.

I thank the Minister for her kind words. I want to express my happiness that the legislative process has addressed the difficulties that arose from the interpretation by the Court of Appeal of the Children Act 2001, in particular section 252. The Court of Appeal invited the Oireachtas to look at this issue if it was unhappy with the outcome of its decision. Everybody wanted to reverse to some extent the implications of that decision. Some people may have thought that the decision itself was a bombshell.

It seems to have been correct technically. This shows it is important that when we legislate in this House, we look very carefully at what we are doing. It was not so much a bombshell as an unexploded bomb. The problem was that it had to be dismantled in a way that preserved other very important and vital safeguards. I wish to make two points in respect of that. Supposing an intruder broke into a house, murdered one child and raped another, which, happily, has never happened, it might well be the case in that if one named the victim of the murder in court proceedings, one might end up identifying what happened to another child in the house. This strange situation could occur where the interests of two different children who were part of a horrific set of circumstances may have to be balanced by the court in a way that is not immediately obvious if we just look at this matter on the basis of first principles. I welcome the fact that flexibility has been introduced here and that the court must balance a number of rights and conflicting interests in a situation such as that. There are other much more mundane matters where child victims of other crimes are covered by section 252. The rights of child witnesses who testify in such cases must be protected as well. Changing the law was not as simple as was thought at the very beginning. I acknowledge the efforts of the Department of Justice and the Office of the Attorney General to get the balance right.

The law in section 252 is fairly narrow. It talks about reports of court proceedings not being broadcast in such a way as to identify individuals. It should be borne in mind that it does not prevent the parent of a child who was murdered from saying afterwards, "My child was murdered". The law is strictly concerned with reports of court proceedings. While the media and people are constrained from saying things about it, in the end, the law does not say that I can in any circumstance be inhibited from saying that my child was murdered if that is the case, which is an important point, nor, on the face of it, does it prevent me from ever saying who did it as long as I am not purporting to report a court case. I am just making the point that people interpret our law in a way that is perhaps slightly overly strict. The James Bulger case in England preserved anonymity for the perpetrators of that terrible crime into their adulthood but section 252 is not that rigid. It does not say that somebody can be screened for the rest of his or her life from the fact that he or she murdered somebody. All it says is that reports of particular court proceedings cannot be published in a particular way. I say that because I think it is important that whatever decisions a court may make about the reportage of an individual case, it is not the case that in any circumstance, the parent of a child could ever be afterwards denied the right to say his or her child was murdered or name the child in that context. This simply will not be the law in the future.

I will finish by thanking the Minister, Deputy Jim O'Callaghan, the Office of the Attorney General and the Department of Justice for the very careful and reasonable way we have tried to craft this legislation to balance all those rights. I hope what we are doing will in early May, as the Minister said, lift what was an unjust situation from the shoulders of bereaved families. We had the odd situation where the victim of a crime in East Wall in Dublin was named but as soon as court proceedings started, the cloak of anonymity seemed to come down on that situation and the media found itself in the peculiar position where it could not identify the child about whom it was speaking two weeks earlier as a child affected by the particular crime.

I thank the Minister and express my appreciation that the legislative process has worked, slowly, perhaps, but very carefully. This is because we were dealing with one unintended consequence of legislation from 20 years ago, while being careful to ensure that we did not produce further unintended consequences in a rush to rebalance the situation.

I am very grateful for the opportunity to make a few comments on the final Stages of this Bill, which was drafted and introduced in the Seanad by my Independent colleague, Senator McDowell. I acknowledge his diligence, expertise and sterling work on the Bill. He engaged with the Minister for Justice and her Department to ensure that this matter was addressed as quickly as possible. I welcome the passing of the Children (Amendment) Bill 2020 by both Houses of the Oireachtas. It is important legislation that should help to recalibrate the law arising from the judgment of the Court of Appeal in DPP and EC v. The Irish Times and others. The court interpreted section 252 to mean that reporting restrictions in respect of offences against children also applied in circumstances in which the child was deceased or had turned 18 years of age and that the identity of the persons responsible for the child's death should not be published if this would directly or indirectly reveal the child's identity.

The new Bill addresses this issue and removes the gag on media reporting. It means that where there is a deceased child, and no other child witness, the identity of child and perpetrator can be reported without any court involvement. Other situations are also legislated for and give some latitude to the court to decide whether reporting restrictions are to apply. I am glad, particularly for the sake of the grieving family members of a deceased child, that a child can be remembered and, indeed, for the sake of the child, the perpetrator can be named.

I defer to the opinion of the architect of the Bill as initiated, Senator McDowell, on this matter, but it is regrettable that the Bill was not broader in its scope. The original Bill gave the court discretion to waive reporting restrictions for offences other than child murder, allowing even greater scope and flexibility for the Judiciary to balance the different interests and come to a reasoned decision as to where the public interest, in particular, lay. The original format of the Bill, which substituted a completely new section 252 for the old one, was more accessible than the Bill as passed by the Dáil. This is regrettable because the law should be as clear and accessible as possible. Notwithstanding this, I welcome the passing of the Bill, as will many parents of children who have lost their lives.

I welcome the Minister to the House. I welcome the news that this Bill is due to pass today and will be brought into effect, as the Minister said, for 3 May. That will be a major relief for the many who have been so distressed by the anomalies and unintended consequences, as we have heard, brought about by the interpretation of the Children Act. I commend Senator McDowell and his colleagues on bringing forward the amending legislation so quickly and swiftly. While the Senator said that the progress through the Houses was somewhat slow, it has been relatively speedy and that is really welcome. On behalf of the Labour Party, I very much welcome it.

I also thank the Minister more generally for her engagement, not just with Senator McDowell on this Bill, but with many of us in opposition on different Private Members' Bills. That has been a real strength, if I may say, of the legislative process over recent months. I thank her for her engagement with the Labour group in this House on the Born Here Belong Here campaign and reform of citizenship law. I also thank her for her engagement with my colleague, Deputy Howlin, on his Harassment, Harmful Communications and Related Offences Act 2020, or Coco's law, which we were also glad to see come into effect.

I ask the Minister to take note of reports at the weekend, in particular the piece in Saturday's edition of The Irish Times by Jennifer O'Connell, recounting the experience of a young University College Cork, UCC, law student, Alicia O'Sullivan, who was a victim of image-based sexual abuse and identity theft, effectively. She reported the matter to the Garda under Coco's law and, unfortunately, did not receive a very empathetic or helpful reception.

It reminds us that it is not only about passing legal reforms to assist victims but also about the need for training for members of the Garda, particularly front-line members who are taking reports from individuals where offences have been committed or allegedly committed. While training for the Garda is hugely important, so too are public awareness campaigns in order that people generally, as well as police, are aware that new laws such as Coco's law have come into effect and are aware that the sort of behaviour that Alicia O'Sullivan had to bring to the Garda's attention is a criminal offence. The report in the newspaper recounted that the social media host, which was Instagram, reacted swiftly but, of course, that is not always the case. Clearly, where criminal offences of this magnitude are involved, the Garda needs to take the matter much more seriously than it appears to have done. While my party welcomes the passage of this legislation and welcomed Coco's law, I ask the Minister that consideration be given to a public awareness campaign on Coco's law and to training for members of the Garda.

I welcome the passage of this legislation. The anomaly that arose was not foreseen and, thankfully, has now been resolved. I hope that it will give comfort to those families affected, especially those impacted by the restraints.

The passage of this Bill should serve as a template for instances where obvious political consensus exists and where the early passage of a Bill will have an immediate impact. The Bill was not railroaded through but some of the more cumbersome aspects of the legislative process were removed by consensus. The Bill was introduced in 19 November and now, only four months later, is back in the Seanad, having passed all Stages. I ask the Minister to talk to her colleagues and recommend this approach as very effective. It is one that works. If it could be taken on this issue, it can be done to progress other Bills that have obvious political consensus behind them but which may be stuck in the legislative process. My party welcomes the Bill reaching the final Stages today with that message that we could do this in other areas where there is consensus.

I welcome, as others have, that this Bill will be completed today and ready to go to the President. It will be a huge relief to the families who have found themselves in the most peculiar place of not being able to speak about their children. I could not imagine anything more horrible. I value that we are now in a position where the court has unequivocal discretion to have a bespoke answer to every situation, while we also have a protection for all children going through the legal system, particularly in these horrific circumstances.

I thank the Minister. I am not sure whether we will see her again before she heads off on maternity leave. I thank the Minister most sincerely for her engagement. As always, it has been reflected well by our colleagues. I wish the Minister the best in case we do not see her in the Seanad.

I thank all the Senators for their support. Senators will see me again, hopefully, next Monday.

Question put and agreed to.

When is it proposed to take the next Stage?

Question, "That the Bill do now pass", put and agreed to.
Sitting suspended at 2 p.m. and resumed at 2.35 p.m.