Thursday, 1 April 2021
Children (Amendment) Bill 2020 [Seanad]: Committee and Remaining Stages
I move amendment No. 3:
In page 4, to delete lines 8 to 18 and substitute the following: “and
(c) by the substitution of the following subsection for subsection (2):
“(2) The court—(a) shall, subject to such conditions (if any) as it considers appropriate, dispense with the requirements of subsection (1) in relation to a child referred to in that subsection where the proceedings concerned relate to the death of that child unless it is satisfied that to do so would—(i) not be in the best interests of another child referred to in that subsection who is alive, or(b) may, subject to such conditions (if any) as it considers appropriate, dispense with the requirements of subsection (1) in relation to a child referred to in that subsection where the proceedings concerned do not relate to the death of a child and where the court is satisfied that to so do—
(ii) contravene section 93,
and(i) is appropriate having regard to the best interests of that child,
(ii) would not be contrary to the best interests of another child referred to in that subsection who is alive, and
(iii) would not contravene section 93.".".
Again, the purpose this amendment is really to put beyond any reasonable doubt queries that have been raised by Deputies and Senators who were specifically concerned that 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. We asked the Attorney General to look at this and to reflect on the wording and the drafting and it has been recommended that we could make these amendments to try to clarify the matter.
Before the EC case in October 2020, the general view was that section 252 of the Children Act 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 the criminal proceedings. Even in that instance there are situations where that can be overruled or where there can be naming. The purpose of this Bill is to restore that position and to make it clear beyond any reasonable doubt.
Subsection (1A) does that by disapplying or removing the restrictions in proceedings which relate to the death of a child, subject to exceptions that I have already mentioned. I will give three scenarios. The first is if there is a deceased child and no other child involved, then there are no restrictions on the naming of the deceased child. 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. 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 a deceased child could potentially identify a living child, whether an accused or a witness, there will be a provision allowing for the court and the judge to decide. That is putting the best interest provision first, where we must apply that, but it does not trump everything. There needs to be a balance, whether that is public interest or taking into account family requests or other scenarios as well.
The amendment to subsection (2) is to clarify that the restrictions on publication do not apply to deceased children, subject to the exceptions I have just outlined, relating to living children who are a victim, a witness in the proceedings or an accused. It also addresses the more complicated situations where the interests of more than one child need to be taken into account. I refer to amendment No. 1. We are talking about living children in this instance. Subsection (2) only applies if there is a danger that the publication or broadcasting of material might lead to the identification of a living child who is a victim, witness to the proceedings or an accused and the court has to consider where it is appropriate to dispense with, remove or relax the restrictions.
The existing subsection (2) and the proposed subsection (2A) are both being replaced by a new subsection (2)(a) and (b). Subsection (2)(a) deals with proceedings relating to the death of a child. This is where there is only one child involved. 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 no conditions that could be imposed. It might decide that there are conditions that could be imposed. Section 93 exists separately, and we are not trying to amend it. The section relates to an accused child and there are already provisions under the Children Act whereby the first response is that one does not name the accused child. However, there can be certain circumstances such as public interest or otherwise where that can be allowed. We are not changing or amending that, and it will still apply.
Subsection (2)(b) deals with proceedings where there is no deceased child, where one might have a child victim but he or she is alive. It is left to the court to decide whether it is in the best interests of a child. If there is a sibling or a second living witness or a child involved, the court must take into account the best interests of those children.
The amendments are designed to put beyond all reasonable doubt that there is flexibility there. When there is a deceased child, but in particular where there is a living child, whether it is a witness, a potential perpetrator or victim, there is flexibility to name the deceased child. We must allow the court to take those conditions on board. The intention is to put the matter beyond reasonable doubt and to acknowledge that Deputies had grave concerns about this. The reason we are introducing this legislation is to clarify different interpretations of what existed and to bring it back to what we thought it was. We do not want a situation where we must come back to clarify it again when we could have done it in the House in the first instance.