Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

The first thing I want to do is to wish the Minister well on her pending maternity leave. It will be a very happy time for her and her husband.

I commend the Government for bringing forward this legislation. As was mentioned earlier, I initiated a Bill earlier in this Dáil term which is still before the Dáil, but I welcome the recognition that this legislation needs to be changed. It is important to get this right because one can be sure that this legislation will end up before a judge of the District Court, the Circuit Court, the High Court or, indeed, another appellate court in the very near future. It is, therefore, absolutely crucial that we get it right.

The provisions seek to amend section 252. Under the current section 252(1), a child victim or child witness cannot be identified in proceedings. We all agree with that but difficulties have arisen because, in recent times, since the Court of Appeal decision, children who have been the victims of unlawful killings and who are no longer alive are also covered by this section, which was never previously the case.

We all agree in this House that children who have been unlawfully killed should not be covered by the provisions of section 252(1). The Government proposes to amend that through the introduction of subsection (1A), which states:

Subsection (1) shall not apply

[...]

[...]

relating to a child where—

(a) the proceedings concerned relate to the death of the child, and

(b) such publication or [reporting] would not result in [a child witness or a child accused being identified]

Under the law which we are talking about introducing, a deceased child cannot be named if doing so could identify a child witness or a child accused.

Let us think of examples of how that could occur. Unfortunately, we will have examples where a child will be killed in the future and where there will be a child witness to those proceedings. We could also have a situation where a child could be killed and the accused could be a child. At present, in accordance with subsection (1), the deceased child cannot be named and that will apply if subsection (1), which is in the amending legislation, is enacted. In her speech, the Minister said that we will get around that because subsection (2) has also been amended and because a new subsection (2A) has been put in. Let us look at what that subsection states. It states:

Subject to subsection (6), the court may dispense to any specified extent with the requirements of subsection (1) [It does not mention (1A)] if it is satisfied that it is appropriate to do so in the best interests of the child.

The Minister needs to look again at the fact that we have two subsections within this section which provide for a deviation from subsection (1). We have subsection (1A), which states that subsection (1) shall not apply in the circumstances I have set out already and we have subsection (2) which states that the court may dispense with the requirements of subsection (1A) if it is in the best interests of the child to do so. That must be a reference to the best interests of a child witness because it cannot be a reference to an unfortunate child who is deceased.

Most alarming of all is the new subsection (2A) which states:

The court shall not, in accordance with subsection (2), dispense with the requirements of subsection (1) in respect of a child where to do so would [identify a child witness or a child accused]

In a way it is contradictory and I would ask the Minister to look at it on Committee Stage. It is important that we recognise that if the Bill goes through as it is as present, it will simply mean that deceased children cannot be named if doing so will identify a child accused or a child witness.

See this speech in context