I move amendment No. 121:
In page 13, subsection (1), line 4, after "who is" to insert "or has been".
The objective of this amendment is to ensure that the Bill will read: "No matter likely to lead members of the public to identify a child who is or has been the subject of proceedings. . ." At the moment it appears as if it only protects the child while the hearing is in progress and we want to ensure that it can protect the child afterwards.
I strongly support the amendment; in fact it is related to my own amendment No. 123, although my amendment is slightly broader. The amendment seeks to protect the anonymity of a child not only when the case is on, which is the impact of what is written currently, but when it is over it cannot be referred to publicly. It is important to provide for that. Also in any subsequent appeals against the decision the same anonymity provision should carry forward and this should be stated so that there there will be no ambiguity about it.
I agree with what we are trying to attain here, that the child should be protected fully against identification publicly. Anything that can be done in that regard at all stages should be done.
It is always our intentions that prohibition on the publication or broadcast of matters that might identify the child would be enforced both during and after the proceedings. I accept, however, that this might not be entirely clear as the provision is now drafted. In order to place the matter beyond any doubt, I am prepared to accept this amendment.
I move amendment No. 122:
In page 13, subsection (1), lines 4 and 5, to delete "this Part or under section 32 or 33" and substitute "Part III or IV or under section 32 or 33".
I move amendment No. 123:
In page 13, subsection (1), line 5, after "32 or 33" to insert ", or any related proceedings,".
Again this is a related amendment to copperfasten the anonymity of the child so that it is clear that in cases of appeals and in any related court case the anonymity of the child would be maintained. I do not think we can foresee all the avenues where a case might be taken or an appeal might be made and to copperfasten the provision any related proceedings which might reveal the name of the child should be encompassed in this. It is to broaden the scope and put it beyond doubt that we seek to ensure that each child who is the subject of proceedings under this section would have the protection of anonymity.
Following the acceptance of amendment No. 122, section 23 (1) now prohibits the publication or broadcast of any matter that might identify a child who is the subject of proceedings under Part III which covers emergency care orders, Part IV which covers interim care orders, care orders, supervision orders, access orders and appeals against any of those orders under section 32, recovery of a child who has been removed from care, or section 33, application for directions in relation to a child. It is clear, therefore, that the prohibition applies to all child care proceedings under the Bill, so I see no need to insert a reference to related proceedings as proposed in the amendment.
I am quite willing to take the Minister's word on this. We are ad idem in terms of what we want to achieve. Where are all the lawyers when you need them? Are there no proceedings that might arise that are not covered strictly under the terms of the Bill we are now enacting? Could they be appealed on a point of law? Could there be any set of legal proceedings where the name of the child could be divulged? The only reason I put that in is to put it above doubt and if the Minister can assure me that there is no such set of circumstances I will withdraw my amendment. If not, I would ask him to accept simply an extra four words. I do not think it is any burden and it puts it beyond question or doubt.
There are two classes of proceedings which could loosely be described as related to care proceedings. The first are applications for judicial review in the High Court, for example, where a parent challenges a care order on the grounds that the appropriate procedures had not been followed by the health board or by the court and I am advised that the High Court has discretion to hear such applications in private. Therefore there is no need to extend this prohibition to that type of proceedings.
Discretion?
Discretion. The second type of proceedings which could be related to care proceedings would be criminal proceedings, for example, if a child had been placed in care because of ill-treatment or abuse, the trial of the abuser could be regarded as related to the care proceedings. If the charge related to a serious sexual assault then the provisions on non-disclosure of identifying information in the Criminal Law (Rape) Act, 1981, would apply. However, if the charge was one of common assault or neglect no such restrictions apply. I am advised that unless a very strong and convincing case is made it would not be appropriate to introduce any restrictions because of the general principle that justice must be administered in public, which is contained in our excellent Constitution.
Obviously there would be circumstances when an abused child whose parent or family member was the subject of criminal proceedings would have his name divulged. That is unfortunate. I am not happy that the High Court even has discretion in cases like this. The thrust of what we want to do is to maintain the anonymity of the child in all cases. I suppose if somebody charged with the criminal act of injury were named then de facto the child would be identified. Still I am anxious as far as practicable to put as broad a canvas as we can on the anonymity of the child and in criminal proceedings against another we should try to maintain the child’s anonymity anyway. Even if he is in criminal proceedings he should be child X. You do not have to be the Brain of Britain to work out who the child is in all circumstances if the father or other relative is named in court. The child in all circumstances, even in criminal proceedings against another, should be protected.
The phrase Deputy Howlin is seeking to insert is very broad and there is a danger that you could take in cases that you might not necessarily want. The Minister has made the point very well in relation to having our court cases as public as possible. There are areas where privacy should be maintained at all costs but I feel that by putting in a phrase like that you are really opening it again to the legal profession to come and say that since this matter is related, there should be privacy in this case as well. They could do that and it is quite possible that a judge may feel constrained, under the legislation as amended by Deputy Howlin, to say that this is related in some way. It would be better to be much more definitive as to what proceedings we are trying to link with this. Particularly in the criminal law area, we could leave ourselves open to having quite a considerable number of criminal proceedings which should be public heard in private. That is the danger there.
On reflection, I am convinced by the last speaker. I think the acceptance of the previous amendment throws a fairly broad net and I hope it can achieve what we want. I withdraw the amendment.
I move amendment No. 124:
In page 13, lines 7 to 10, to delete subsection (2).
This amendment hinges on what was said this morning by Deputy Shatter. Subsection (2) provides that the court may, in any case if satisfied that it is appropriate to do so in the interests of the child, dispense with the prohibitions in subsection (1) in relation to his identification. I want to hear the reasoning behind that. I could not think of circumstances when it might be in the interests of the child that he be identified. In the submission I have received from the coalition and from the Association of Social Workers neither of them found instances where it might conceivably be "in the interests of the child" to be identified. Why was it necessary to put in this section? I want to hear the reasoning behind it before I decide my attitude on it.
My previous remark in relation to the identity of the child stands, but we cannot possibly cover every possible scenario that could arise in relation to this legislation. Strangely enough, I go along with leaving this section in just in case some scenario would arise at some stage where it is appropriate to reveal the identity in the interests of the child. The phrasing in the section is very very restrictive. According to my reading of this, it can only happen once the court is satisfied that it is in the interests of the child. Like Deputy Howlin I see no case where it would be in the interests of the child, but I prefer to have that in there in case something should arise rather than have it deleted completely at this time.
I am curious about this subsection. Would it have anything to do with a child who may go missing or may be kidnapped or whatever and there is an attempt to find him/her and you would have to use all the sources of the media to trace the child or to get people to come forward? That is the only possible reason for this subsection. I would feel very strongly that the child must be protected as the totally innocent party in these types of actions. We all know the excesses to which the media, particularly the tabloid newspapers, will go to for a sensation, or a bit of drama, which is seems the public have an insatiable appetite for, but nobody seems to think about the victims or the people who are being victimised by this type of reporting. When you think about it in the context of the child as against an adult who can write a letter to the paper, get an article printed or go to court, the child is so vulnerable and has no real means of redress, and has to live with the stigma, whether it is the outrageous behaviour of a parent or whatever, for its lifetime. People all over the world, and certainly in this country, have very long memories, and can accredit your seed, breed and generation with all kinds of extraordinary flaws on something that they read, maybe casually, which was perhaps inaccurately reported. I support this amendment absolutely for the reasons I have mentioned.
I am aware that this provision has given rise to some confusion and I welcome this opportunity to clarify the purpose of subsection (2). Subsection (1) sets down the general rule that no matter that might serve to identify a child involved in care proceedings is to be published or broadcast. Subsection (2) provides that the court may dispense with his prohibition if it considers it is necessary to do so. For example, a child who is temporarily in care while awaiting the determination of an application for a care order might be abducted from care by his parents or others. The gardaí or the health board might consider it desirable to publish the child's photograph or description to assist in having a the child recovered. Subsection (2) would enable the courts to authorise such a disclosure of identifying information if it believed that it was in the child's interests to do so. We met several interested groups in relation to this Bill and they raised this matter with us. When this situation was explained to them they were satisfied that it was advisable to retain this section. I am sure the Deputy will accept that this is a reasonable provision and he might agree to withdraw his amendment.
I really wanted the circumstances clarified and clearly stated. Now that that has been done, I have no objection to those exceptional circumstances and I withdraw the amendment.
I move amendment No. 125:
In page 13, subsection (5), to delete lines 29 and 30 and substitute the following:
"‘broadcast' means the transmission, relaying or distribution by wireless telegraphy of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;".
The purpose of this amendment is to insert a new and more comprehensive definition of the word "broadcast". This new definition is the same as that used in the broadcasting legislation of 1988 and takes account of the latest developments in the world of broadcasting. I hope it can be agreed.
In regard to the penalty provision, where the editor of a newspaper is found guilty of an offence, the Bill states that he shall be liable, on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or both. I am concerned about the minimum or lower level of the fine. In my book, to impose a fine of £1,000 would be to let someone off very lightly. I would like to think that there was some minimum amount, as we have suggested in other sections of the Bill. In my opinion, the only thing that really counts, in terms of newspapers, is a fine and the cost involved. I feel there should be a minimum fine.
The media are not present for this.
Had they been present all day, they might not have liked some of the comments that have been made. I agree with the Deputy on this. I think the only thing the media will respond to is something which hits them very severely. They begin to squeal when high libel awards are made against them. I do not think a fine of £1,000 is severe when you take into account that the identity of a person involved in the horrendous crimes we are talking about here, is being revealed and their whole future could be destroyed as a result of somebody going for a sensational story. I would go further than Deputy Fennell on this; I would be more inclined to increase the amount and make it a mandatory fine if that is possible. The Judiciary, who are also taking a bit of a battering this morning, tend not to see these matters as seriously and gravely as the general public. I would ask that that be looked at on Report Stage. I would certainly be in favour of a mandatory fine at least and an increase in the amounts as well.
The Minister is not in a position to increase the financial penalties. We have two difficulties here in that the maximum fine that a District Court can impose is £1,000 and the maximum sentence it can impose is 12 months. The second difficulty is that it is not normal in legislation to stipulate a minimum fine or a minimum period of imprisonment. That is a matter for the court. We cannot, in this Bill, exceed the maximum laid down in law for the District Court unless legislation provides for it. It would be a matter for new courts legislation to be brought forward, and obviously if it was introduced it would automatically supersede the present legislation. I regret that is as far as I can go.
We have no option in that case.
