Thursday, 11 March 2021
Children (Amendment) Bill 2020 [Seanad]: Second Stage
I move: "That the Bill be now read a Second Time."
I will start by thanking Senator McDowell and the other proposing Senators for introducing this Bill in the Seanad. It has now passed all Stages in the Seanad, with some Government amendments and with Government support. I acknowledge the Private Members' Bill proposed by Deputy Jim O'Callaghan, which addresses the same issue, and I thank him and Senator McDowell for their co-operation on this matter.
This Bill is in response to issues arising 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 respect of 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 profoundly negative impact that the ruling is having on grieving parents who are unable to remember their deceased children's names or legacies is clear to me. I have been working closely with Senator McDowell and Deputy Jim O'Callaghan on this issue. We all agree that a collaborative approach is the right one to take. Having committed to finding the fastest way to address this issue, the Cabinet agreed to support the Private Members' Bill, with Government amendments, as the most expeditious way of delivering on that commitment.
As the law stands, 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.
Section 252(1) provides 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 to his or her identification, shall be published or included in a broadcast.
Section 252(2) does permit a court to lift reporting restrictions if satisfied that this would be in the interests of the child. Prior to the judgment of the Court of Appeal in the EC case, the issue of reporting restrictions in the case of deceased child victims had not arisen.
The position appears anomalous given the fact that the identity of a child murder victim can be and is reported at the time of the tragic occurrence, but cannot be published once proceedings for an offence against the child homicide victim commence. Nonetheless, as 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 the section as not including a deceased person who was a child at the time of death.
A further issue which has arisen on foot of the ruling is in respect of cases relating to persons who were children at the time of the offence but adults when proceedings were taken against the perpetrators. Mr. Justice Birmingham added on this point, "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."
I will now turning to provisions of the Bill. Instead of replacing section 252, I will be amending it to address the key issue, which is to ensure that parents will be free to refer in media reporting to the names of their deceased children who have been the victims of crimes. This will also remove the restriction on the reporting of the identity of accused or convicted persons in such cases where there were restrictions because it might lead to the identification of the deceased child victim. However, this will not operate to undermine the provisions of section 252 if another child witness or victim is in need of its protection and neither will it undermine the provisions of section 93 of the Act, which protects the identity of a child who is the accused or convicted person. In addition, the Bill addresses the restrictions that apply in respect of the identification of a person who was a child at the time of the offence but an adult at the time of the proceedings.
Subsection (1)(a) of section 1 amends the existing sections 252(1) by substituting "Subject to this section," for "Subject to subsection (2),". The purpose of this amendment is to ensure that this section is subject to subsections (1A), (1B) and (1C) as well as subsection (2).
Subsection 1(b) inserts three new subsections after subsection 252(1), namely, subsections (1A), (1B) and (1C). Subsection (1A) disapplies the prohibition on publication or broadcast in subsection (1) where the proceedings concern the death of a child. This section disapplies subsection (1) automatically, which means that the identity of a child victim who has died can be published without the need for a court order. There are two exceptions to this. First, where this would lead to the identity of another child who is a witness or another child who is a victim of an offence to which the proceedings relate. Second, where this would lead to the identity of a child accused in relation to the proceedings, contrary to section 93 of the Act. Section 93 protects the identity of child offenders or children accused of criminal offence. I will clarify how this will operate in practice by way of examples.
In the first scenario, where there is a deceased child and no other child witness, subsection (1A) operates to allow the identity of child and perpetrator to be reported without any court involvement.
The second scenario relates to circumstances where there is a deceased child and a child witness. If identifying the deceased child or the perpetrator is likely to identify a child witness, such as a sibling, the default situation under subsection (1A) is that the identity of the deceased child should not be reported unless a court decides otherwise. There is that flexibility. However, section 252(2) would apply in this situation. It allows the court to dispense with the protections, to any specified extent, in the best interests of the child. The court has flexibility under this section. For example, it could decide that the deceased child could be named, which would also allow the accused to be named, but that there should be no reporting of family link with the witness or it could decide the best interest of the child witness does not require anonymity for the deceased child and witness.
A third scenario is where there is a deceased child and a child witness and the accused is a child. In such circumstances, subsection (2A) applies such that if the court is considering dispensing with the protection of subsection (1) for the child witness, it must also consider the implications for the child accused. If the court decides that identifying the child witness is likely to identify the accused child and that that is not appropriate, then the child witness should not be identified. However, it should again be noted that the protection of anonymity afforded to a child accused is not absolute because section 93 does allow for those protections to be lifted by a court in some circumstances.
Subsection (1B) disapplies the prohibition on publication in subsection (1) where the child against whom the offence is alleged to have been committed has attained the age of 18 at the time the proceedings have commenced. The protections will automatically disapply in such circumstances. There are two exceptions to this. The first is where this would lead to the identity of child who is a witness or another victim in the proceedings who remains a child. The second is where this would lead to the identity of a child accused in relation to the proceedings, contrary to section 93 of the Act. As I stated, section 93 protects the identity of child offenders or children accused of a criminal offence.
Subsection 1(b) also inserts subsection (1C) after section (1B). Subsection (1C) specifies that subsection (1B) does not affect provisions in other legislation which preserve the anonymity of a victim.
Section 1(c)(i) amends subsection 252(2) by substituting "Subject to subsection (2A), the court" for "The court".
Subsection (2A) relates to matters the court must consider if dispensing with subsection (1) restrictions. I wish to provide a point of clarity relating to the new subsection (2A). The reason this subsection is inserted is to deal with circumstances in which the court must consider situations involving more than one child witness or victim to the proceedings. This subsection ensures that, when considering whether to dispense with restrictions relating to a child witness or victim, a court will not dispense with the requirements of subsection (1) where this would lead to the identity of another child who is also a witness or victim of an offence to which the proceedings relate. For example, where there is more than one child witness or victim in a case, the court must consider the best interests of each individual witness or victim when deciding whether to lift restrictions and can consider the extent to which restrictions should be lifted in respect of each child. Similarly, the court must also consider whether dispensing with restrictions in respect of a child witness or victim would lead to the identity of a child accused in respect of the proceedings, contrary to section 93 of the Act.
Subsection 1(c)(ii) amends subsection 252 by substituting "best interest of the child" for "interests of the child". The best interests of the child principle is increasingly incorporated into new policy and legislation affecting children and is therefore increasingly applied by the courts. The best interests of the child will not always be the single overriding interest. There may be other competing interests at stake, such as other children, the parents or the public interest. However, in accordance with the principle, the interests of the child must be the subject of active consideration and the court needs to demonstrate that the interests of the child have been explored and taken into account as a primary consideration.
Section 1(2) of the Bill makes provision for the changes effected to apply immediately both to the reporting of old proceedings and to new proceedings. This means that the identity of a deceased child which could not be published since the decision of the Court of Appeal in DPP and ECv.The Irish Timesand others can be published once the amended section 252 has been commenced. It also follows that the identity of an adult accused or convicted in relation to such a death can be published once the amended section 252 has been commenced.
Section 2(1) sets out the Short Title of the Bill. Subsection 2(2) contains the collective citation.
Section 2(3) relates to the commencement of the Act. The Act will be commenced by way of statutory order, which is the most efficient way to bring the Act into effect. Section 252 creates a criminal offence. As such, there is a need for people, including the media, the courts and the Director of Public Prosecutions, to know in advance the date on which the new provisions will come into force. This section means there will be certainty about the date of commencement and that the public can be informed in advance of the date of commencement.
Article 25.2.1° of the Constitution provides for a Bill to be signed not earlier than five days and not later than the seventh day after it has been presented to the President. We will not know in advance on which day the President will sign the Bill. This means there can be a short delay before a new Act is promulgated and becomes a matter of public record. My officials will be advised as soon as the President has signed the Bill. I can then sign the commencement order without delay and it will be promulgated by my Department and be a matter of public record as a statutory instrument.
I again thank Senator McDowell for introducing the Bill and for his engagement on this issue both inside and outside the Seanad. I again thank Deputy Jim O'Callaghan for his engagement on the issue. He recently published a Private Members' Bill on this issue in the Dáil along with Deputy Murnane O'Connor and it was taken into account in our overall considerations.
I am sure Members across both Houses of the Oireachtas are as determined as I am to enact the Bill and amend this legislation to ensure that parents most importantly can speak publicly in the media to honour the memory of their child in such tragic circumstances.
A number of families have been affected by the ruling of the Court of Appeal and I hope that we can work together quickly to bring this legislation to a successful conclusion.
I welcome the Bill. The issue it addresses has been a running sore for many victims and their families since the ruling on the operation of the Children Act 2001 by Mr. Justice Birmingham. It was a decision that took many people by surprise by taking a narrow interpretation of section 252. However, the situation is what it is and we are where we are. We are now in a position where we are moving the matter forward.
I commend the other Members of both Houses who have done the work to bring the Bill to this point. We all recognise the trauma that many families go through when a family member, particularly a child, is the victim of homicide or a similar crime and cannot be named. The family is denied the element of being able to recognise the child in a formal and public way. I know that members of the media have been vocal on this matter and some have run campaigns to have the decision reversed, all of which has been appropriate and proper. I wish it had been done sooner but we are where we are and we are going in the right direction. I hope this Bill will come into law as quickly as possible.
I spoke at length to an advocate for victims of homicide yesterday. His sister and her two children were killed some time ago, before this particular case came into vogue. He made the resonant point that the pain that the relatives of victims go through is something for which we need to take more consideration. It does not end when the day in court is over and the perpetrator is put behind bars, or whatever. Their pain, suffering and anguish continue and we need to have a clear recognition of that.
Many of the types of cases with which this legislation is concerned, particularly those involving children, are linked to the serious drug crime that exists across the State. I listened with interest to the radio when I was driving up in the car this morning and heard about a child victim of crime who was dismembered and parts of his body were left around different parts of Dublin. There is a search for other parts of his body going on in Drogheda. He could not be named today but he was named last year. It shows the impact of the ruling by Mr. Justice Birmingham.
There is, of course, an issue of young people becoming involved in, and part of, the culture of serious crime and drugs that exists in many communities, including, unfortunately, our inner city and urban areas, but also places all over the country. It is everywhere. There is a problem, particularly in Dublin but in other places too, with the use of crack cocaine among a lot of young people. It is cheap, easy to get and seems to be rampant. I am getting an awful lot of complaints that the Garda is not doing enough to combat that particular problem and that attention and focus need to be brought to the issue. I know that the Minister will soon be moving on to relaxing and preparing for the imminent arrival of her new baby but before she does, I ask her to speak to the Garda Commissioner and anyone else at a senior level within An Garda Síochána in Dublin to get resources put in place to bring attention to the problem. Many people see selling drugs in a low-level way as a low-level crime without a big impact but it has an enormous impact on the communities it affects. It has become very serious in certain areas of Dublin, in particular, and in other areas around the country.
We must consider where we need to go to solve these problems. We cannot only intervene after a court case and when a child, young person or teenager is a victim of crime. Many of the people involved in all of this stuff are of that age. How we prevent those young people going down that path, bring them to a different route and find another way for them is the key to all of this. We must ensure that we put the resources in place. This issue extends beyond the remit of the Minister for Justice and goes into a whole lot of other areas, particularly social work, youth work and all of those things. If resources were put into those areas, it would make a considerable difference in ensuring that young people do not end up in such situations in the first place.
We must think about young people who are the perpetrators of crime and end up in prison. There is considerable cost to the State, including the legal system through which they must go for a trial and the cost of the Garda members, security services and so on to try to deal with them. The State incurs all of that cost because, in the beginning, those people were not given the right chances in life. If we put resources in the right places, we would save a lot of money down the road. I am sure it costs an awful lot of money to keep a young person in Mountjoy for a year, or for ten years in cases of serious crime. If those resources were put into the communities where they live and fall into the wrong company at the right time, it might save money in the long run. There is a big job of work to be done in that regard.
There is also a big job of work to be done in our mental health services and what we can do in that regard. I regularly hear about the issues that arise in that respect, particularly for young people. Some of the issues relate to drug use and the psychotic episodes that young people have when they have a serious problem with drug use and fall into crime as a result. When members of the Garda pick them up, they know those people are a danger to themselves and others and yet there is nowhere to put them. That is a serious problem that needs to be addressed because it has had catastrophic consequences for some people who have been victims of crime as a result of that further down the road.
This legislation makes some effort to go in the right direction. It certainly is dealing with the specific problem of the naming of a person who is a victim of crime. However, I think we need to broaden all of this out. The relatives of victims of crime being able to name the child or adolescent who has died solves only one part of the problem and much more needs to be done to give those family members a voice and a part in the process, and to open up the process for the relatives of victims in these circumstances. I believe the Minister would agree that a piece of work needs to be done to reach further than this small legislative measure, which deals with a particular interpretation of the 2001 Act.
The clear problem that we have in our society is, in many cases, about poverty of ambition and opportunity for many people. We would do well to revert our attention to those issues. A considerable body of work needs to be done in that regard.
There are also issues for people who are perpetrators of serious crime of this nature when they go into prison. They go into a system which, for many of them, does not work and is quite broken. There are issues that must be dealt with in order to provide adequate services and to ensure that people avail of them when they are in prison. There are also issues around the Probation Service and how it works with prisoners when they come out of prison and addresses where they are, what they are doing and how they can move into a different place in life. At the end of the day, we have to make people recognise the harm that they have done and move them to a different place in order that they will not inflict that harm again and become advocates for others to make sure they do not cause similar harm. That is not happening and one of the tragedies of our present criminal justice system is that it does not do enough to ensure that we do not have continual repetition of crime and more people from the same community being sucked into it.
There is a significant amount of work to be done in that regard. The victims and relatives of crime need to have their voices heard in the legislation regarding the children they have lost. They also need to have their voices heard regarding their access to information, in particular in violent cases where someone ends up in prison. They do not know how long a life sentence is and when the perpetrator can seek to get out. The whole system seems to be unbalanced in that regard. The relatives of victims of a serious crime of that nature make a strong case for there to be space for their voices to be heard when it comes to the early stages of the sentence and to the perpetrator being released from prison. It is only if they feel they are protected by the State and that they are a part of the process that they can move on with their lives. I have spoken to people who told me that to their horror they met somebody on the street who had been out of prison for a very serious offence against a family member but they were unaware that the person was out of prison. We should not have that kind of thing happening in society. There is a lot of work to be done.
As far as the Bill goes, I welcome it. It does what it says. I listened to the debate in the Seanad where there were some comments to the effect that the language in the Bill should be clearer. That may well be the case, but I am not prepared to get hung up on that now. We need to get the Bill through the Houses and in place as quickly as possible so that the anguish people suffer is relieved. I will hand over to Deputy Ó Murchú.
I wish the Minister, Deputy McEntee, and her husband well. I am very pleased the Government has created a stopgap measure to provide her with the necessary maternity leave. I agree with previous speakers who stated that we need a solution that brings us up to date so that we can facilitate women in politics. It is 2021 but we are operating as if it was 1950 or even 1850. I wish her very well.
Like Deputy Martin Kenny, I support the Bill and consider it necessary legislation. We found ourselves in a quandary given that the media were referring to children who were victims of homicide and in many cases we knew the name of the child, but a voice could not be given to the child. To a degree, that retraumatises the family of a victim of what in some cases are heinous crimes. Deputy Kenny referred to the ongoing search in Drogheda, which we hope is successful. We all know the terrible story that brought us to that particular place.
It is another example of a case where we are taking away a sense of ownership and identity from a family and a victim and heaping on extra pain and we must remove that. While we wish everything could happen more quickly, we are where we are, and we must ensure we get the legislation passed and that we at least relieve the extra pain we are putting on people. Given the situation I spoke about earlier, like Deputy Kenny I think it is a fair point to make.
It is very hard in the context of general justice issues not to refer to the pandemic of drug crime that we are dealing with across the board. In fairness, I have spoken in this Chamber and privately to the Minister on the matter. We need a holistic system that delivers for us. We all accept that a multi-agency approach is required. It is fair to say that the current youth justice system is not correctly purposed to deal with the situation. A University of Limerick report was based on almost 1,000 children in danger of being involved in drug crime due to being groomed by criminal gangs that make use of certain weaknesses in the law. They find people who are already on the periphery of society and bring them into a netherworld where there are no wins. It is just heaping tragedy upon tragedy especially in working class areas throughout the State. We must do what is necessary to alleviate that.
In fairness to the Minister, Deputy McEntee, and the Minister of State, Deputy James Browne, they have spoken about their plans for a youth justice strategy that should be more fit for purpose. I welcome the outworking of that. A number of projects are currently in operation to try to reduce the danger of children becoming involved in criminal gangs. The work must be assessed and whatever pilot programmes are in operation must be extended to all communities in the State that are being ravaged by drugs crime.
I agree with what my colleague stated earlier about the need to give the Garda the powers and ability to deal with criminal gangs. We must ensure that we focus on and intervene in the families and children in communities that are in danger of falling into difficulty. Some might say such projects are incredibly costly, but we know the price of not putting in place early intervention. We know the price we pay for crime, whether it is ourselves or the wider community. We also know the cost of imprisonment is huge so we must do what we can to reduce the number of people who become involved in what is a dreadful business and is an impediment to society. We must do whatever we can to improve the situation.
To return to the legislation, it offers a solution that is required at this point. It is a sensible solution that will remove an element of pain from people who have already had to deal with dreadful pain due to the homicide of their own child or one who was closely related to them. That must happen as soon as possible.
At times, the justice system and its communications are not necessarily where they need to be. I refer to people who become victims of a serious crime and who have a genuine complaint because they are not always updated on Garda investigations or court proceedings. I accept they do not need to know the ins and outs of operational matters, but they should be told about developments concerning serious charges and when people are sentenced for homicide and other such crimes as well as parole. We must improve on our communications so that we do not add further pain to families who have already suffered far too much. I welcome this legislation. We must join the dots to improve the system and to deliver for people.
I am very pleased to have the opportunity to speak on this short but important piece of legislation. I was a member of the committee that worked on the Children Act in 2000.
As I recall, that legislation took a year to go through the Houses. There was very detailed committee consideration and nobody around the table envisaged that section 252 would be interpreted in the way it has been.
The president of the Court of Appeal made the point abundantly clear that on reading the section in plain English, one would have to interpret it in the way the courts obviously have done. It was certainly not the intention of any Member of the Oireachtas at the time that there would be a blanket prohibition on the identification of the victims of murder if they were children. It requires amending now. In his judgment, the president of the Court of Appeal indicated that this was a plain English reading of the section and that if how it has been interpreted was not the intent of the Oireachtas, then it was a matter for the Oireachtas to deal with. As a result, we have to put matters to right.
What is at stake here is important, as the Minister has indicated. Many families have suffered the awful bereavement of a murdered child who has been made anonymous by all of this. They cannot explain the hurt or horror or tell their stories. That is quite wrong in most instances. There are also families who will not want to have the spotlight of publicity shone upon them, particularly those with other children that will not want a surviving child or children to be known as the sibling of a murder victim and the trauma that would bring on them forever. Arriving at a solution is a careful balancing act.
When this matter first arose, I thought a simple amendment to the Children Act could be introduced. I suggested at a committee meeting that we could do that by way of adding an amendment to one of the miscellaneous provisions Bills going through the Houses. More mature reflection would indicate that is not the best way to proceed. We need a stand-alone Bill.
I heartily commend the work done by Senator McDowell and Deputy Jim O'Callaghan, both of whom are extraordinarily experienced lawyers. They produced a Bill to address this issue. I understood that their approach was to restore the position to that which obtained prior to the court's determination. In other words, to restore it to the view that we understood we enacted when the Oireachtas passed the original Children Act. I am not 100% certain that this Bill does exactly that.
As already stated, it is very difficult to strike an absolute balance which will allow families who wish to tell their story to express their grief so that all of us can have a better understanding of the horrors that they are enduring and ensuring they are not excluded from doing that, while at the same time providing for those families who do not want photographs of themselves at a funeral or in the company of other children carrying the coffin of their beloved child. How do we strike that particular balance? I am interested in hearing the view of the Minister on that matter.
Every case is unique. The Bill is rather impenetrable to a lay reader. It is very difficult to understand all of it. It is an amending Bill which goes into a grounding Act. It relates to sections of the original Act that have to be read in parallel to it. The Minister's intention is that child witnesses would be protected and could not be identified, no more than child victims. It will be very difficult for a reporter to determine what exactly one can do without trespassing on the considerations of the Bill. We have to protect the victim when he or she needs to be protected, as well as protecting witnesses. As I said, in the context of a plain English reading of the amended section 252, which will be the new section in the Children Act, matters are not crystal clear.
Deputies have referred to the, thankfully rare, occasions on which children are murdered. Often, a murder is notified before a body is found. When a child is missing, his or her identity is almost always known and information is in the public media and a matter of enormous public focus, as one can imagine. There is an odd situation in that there is a very plainly a missing child who has been identified in the media for days, if not weeks. If a person is charged with an offence, suddenly the victim cannot be named for legal reasons.
Others have referred to a case in the news today. A person who had been identified very extensively last year cannot now be identified for legal reasons, those reasons being the decisions of the superior courts in regard to the interpretation of section 252 of the Children Act.
The amendment seems to seek to cover all likely circumstances, which is very difficult to achieve. I read the debate in the Seanad and noted the strivings of Senators, as well as the Minister, to do just that. Discretion is left to the courts, but perhaps there should be greater discretion rather than trying to circumscribe it in the way the Bill does. That might better meet all circumstances. As we find again and again, each set of circumstances is unique. If there is an opportunity for some dialogue between the presiding judge in a court case and the family directly involved before making a determination, perhaps that approach would better suit the generality of cases that are likely to arise.
I am putting this forward as a suggestion because I believe that we live in a very complicated world in which broadcasting is not merely a matter for a radio or television. Matters are broadcast on social media instantly and constantly and in different limited and extensive ways. Damage and permanent harm can be done in a way that we may not have envisaged in the drafting of legislation here. I stated that we live in a new world and I am conscious that young people in particular live in an online world now. Previously unthought of dangers and challenges exist. I am very grateful for the support the Minister gave to recent legislation to establish a new criminal justice framework for the operation of such things as bullying, harassment, the dissemination of intimate images and so on online. Fundamental to all of that is educating young people in particular about the dangers of online communications.
There are predators out there who lure people in and the best efforts of family members cannot always protect children from that. In recent murder cases, thankfully not so much in this jurisdiction but in neighbouring jurisdictions, often begin with the victim being groomed and lured into circumstances online. That is something we need to be mindful of as we develop our own legal frameworks.
The mental health of young people is extremely important, particularly in this time of Covid. I spoke to one GP in my constituency during the week. She told me that the most alarming thing she is dealing with is the rise in psychological problems of teenage girls in particular - boys too - who are under incredible stress. Much of that relates to their online life living in lockdown. There are new dangers that we need to be alert to and, through our public health system, responsive to.
We also need to reflect on our attitude to young offenders. It is only relatively recently that we built new institutions such as Oberstown and did away, thankfully, with the juvenile detention that we had in St. Patrick's Institution which was entirely unfit for purpose. However, we need to reflect to ensure that institutions such as Oberstown are properly supported and resourced and that they are linked into the community in a real way. We have to think of the victims of crime, the families at the heart of this legislation about whom we are thinking now. When the trial is over and someone is convicted for the heinous murder of a child, the family goes about its business without real support from the State thereafter. That is something we really must think about. While our supports during the trial processes have improved, the families remain third parties. They are neither the accused nor the prosecution but witnesses, even though, fundamentally, they are at the core of it all. When it is all over, what do we, as a society, do to support and assist them? We need to develop better supports for them.
There are victim liaison supports available. In Oberstown, for example, victims of juvenile crime can link in to Oberstown and at least be alerted to release dates of those who have perpetrated crimes against them or their families. That is an important and ongoing liaison that should happen. It would be a terrible shock for people to discover the perpetrator of a dreadful crime against their family walking down the street without knowing and being prepared for the shock of that. As well as introducing robust criminal law, we need to think about how we better support the victims of crime who are often third parties in a very legalistic system. We support, through legal aid and otherwise, those who are accused and need to put up a defence and the prosecution service is supported by the State to prosecute a crime. However, the victims are often the one party in all of this who are left to fend for themselves with the support of immediate friends and family. On an ongoing basis, I can only imagine how profoundly damaging that can be. We need to reflect further on the types of supports that we give in those circumstances.
I support the legislation because the changes envisaged are required. I am not certain that they do what most of us want the Bill to do, namely, to restore the pre-court determination and the interpretation of the Children Act, as we understood it, prior to the decisions of the High Court, to be endorsed by the civil Court of Appeal. Can the Minister reassure the House that it does that? Does it open any other avenues to other interpretations or complications? It reads as a rather complicated set of amendments that constitutes a new section of the Children Act. I look forward to hearing the Minister's response and to teasing out these matters more fully on Committee Stage. I understand the Minister's point about the need to move with speed and alacrity. We support her in that but equally important is the requirement to get this right so that we do not have to return to this matter once again.
I join with others in wishing the Minister, Deputy McEntee, well for her short sabbatical as she and her husband prepare for the arrival of their new child. I wish her every joy, success and happiness. I look forward to working with her again on her return to office.
I also wish the Minister the best on her maternity leave. I hope she takes care of herself.
I called for section 252 of the Children Act to be amended to allow for the identification of deceased children who are victims of crime. My colleague, Deputy Jim O'Callaghan, and I published legislation similar to this Bill. I commend Senator McDowell on sponsoring the Bill, which will achieve what we set out to achieve. I also thank the Seanad for progressing Senator McDowell's proposed amendment so quickly. This will allow grieving parents to speak publicly about their deceased child and remember them the way they want to. It will ensure that parents will be free to refer in media reporting to the names of their deceased children who have been victims of crime and also remove the restrictions on the reporting of the identity of the accused or convicted persons in such cases where restrictions applied because reporting of the child's identity might lead to the identification of the deceased child victim. However, this will not operate to undermine the provisions of section 252 if another child is in need of its protection, nor undermine the provision of section 93 of the Act in particular, which protects the identity of a child who is the accused or convicted person.
It is important in the grieving process to remember a child by name. The Court of Appeal ruling in October that a dead child cannot be identified when someone is charged with killing the child meant that a person charged with a child's murder or manslaughter cannot be named if by doing so the child would also be identified. This led to enormous trauma for the families left behind. The Oireachtas never intended to prevent the identification of children who were victims of homicide. The October decision created legal anomalies but the court did not have an option to rule otherwise. The unintended consequence of the ruling was that victims and their families were silenced. It meant that the families of children who have been victims of domestic homicide could no longer speak publicly the names of their children killed and, consequently, the name of the perpetrator as to do could identify the children. I have met families affected by this legislation who have gone through such loss. I know for them the importance of keeping the memories of their loved ones alive, so it is vital that we move quickly to enact this legislation.
It is important that I mention my good friend, Kathleen Chada, from Carlow. She has been speaking to Senator McDowell and Deputy Jim O'Callaghan about this issue. Kathleen proudly speaks about her two boys and I know how important this legislation is for her.
The interpretation of current legislation is seen as yet another way to protect the perpetrator and silence the victims. Those who had serious crimes committed against them as children had the ability to make a choice about revealing their identity removed under this ruling. That was also wrong.
I urge the House to adopt this Bill to give families back the ability to name and remember their children publicly. I strongly support the legislation. My understanding is that it could take three or four weeks for the House to pass it. It is important that it go through the House as quickly as possible.
I speak today on behalf of Andrew McGinley, one of my constituents. Last year, Andrew tragically lost his three beautiful children, Conor, Darragh and Carla. I was among the hundreds who gathered outside Rathcoole Church to pay my respects on the loss of these three young lives. The outpouring of community grief was like nothing I had seen before. The heartache was like nothing I had experienced before. The sight of three white coffins is something which will haunt all of us who were there.
I do not know how Andrew got through his eulogy. In it, he promised his children that their lives would never be forgotten and they absolutely have not been. One of our local crèche in Rathcoole, the Happy Feet Early Learning Centre, has honoured the memory of Carla and her sense of imagination and creativity through a playground which it has called Carla's Kingdom. Andrew has honoured Conor's memory through his social media channel, Conor's Clips, which shows the fun, the love and the light that his three children brought to this world.
There is so much more that Andrew wants to do to honour their memories and he has big plans which he will announce on Darragh's birthday. However, the current laws on reporting stop Andrew from speaking the names of his children in the media. Andrew has described being in that unthinkable situation. He said that the pain of not being able to talk publicly about his own children has been almost as painful as the circumstances of their deaths. Let us just think about that for a moment. Andrew does not believe that the law intends to cause pain, and I do not think any of us here believe that either. The reality, however, is that it has done exactly that. It is crystal clear that this law needs to be changed. I thank the Minister for making this happen. I also thank Deputy Jim O'Callaghan and Senator McDowell for all they have done on this issue as well. This Bill will change things. It will change things for Andrew and all those in his position, for his children and other children, for all those who deserve to remember and all those who deserve to be remembered.
I too broadly welcome this Bill. I thank the Minister and Senator McDowell for their work and the speed at which this legislation has been brought to the House. We all appreciate the urgency in correcting this issue. It is also welcome to see the Government supporting a Bill from the Opposition and that Members are working collaboratively to strengthen legislation, especially in a case such as this. We are all united in a common purpose and I do not think anybody here will oppose the Bill.
As others have said, this legislation became necessary because of the decision of the Court of Appeal last October when it ruled that reporting restrictions on the identification of children who have been victims of a criminal offence also apply where the child is deceased or has turned 18 years. In the case of the young lad this morning, one only has to do a Google search to discover his name was Keane Mulready-Woods. He will never turn 18 and cannot be named publicly for legal reasons. His murder was particularly horrific and a search is ongoing. That young man lost his life and not naming him dehumanises rather than protects him.
Most of us do not understand the logic at work here. This ruling also comes into effect once a person has been charged with killing a child. We saw that not long ago in the case of Josh Dunne, who was aged 16. He could be named initially and his name was in the public arena. We also saw events to celebrate him as a talented footballer and how much he meant to his family, his friends and the community. Once a person was charged in that case, suddenly he could no longer be named. Those are the immediate cases we have seen.
We now have a situation where in the immediate aftermath of an unimaginable tragedy resulting in the killing of a child, families and communities cannot grieve publicly or share the memory of a child. An oppressive wall of silence comes down once someone has been charged and it is only right that we try to deal with that. Parents can no longer identify their child by name, use a picture or refer to details of the child's life if it might identify him or her. Those parents will never be able to publish or broadcast their child's name and that restriction continues beyond the trial in respect of events to remember a child. That is very tough and other Deputies have mentioned similar cases.
Another consequence of the ruling is that the media are prevented from identify an adult charged with a murder if there is any chance that might identify the victim. The position is different if the person charged is a child. Generally, this means that only perfect strangers who are convicted of killing a child can be named and never close relatives or associates. Unfortunately, we know that the vast majority of homicides are committed by people known to their victims. This means that child murderers who are adults are largely shielded from the public, while we continue to know the names and faces of those who murder adults. There is a clear distinction there.
The wording of section 252 of the Children Act 2001 is clear. It is difficult to imagine how a court could have ruled otherwise and how a judge could reasonably argue that the word "child" does not apply to a deceased child. I found that difficult to absorb and process. The ruling had devastating consequences and overturned decades of practice. The ruling is putting the parents and loved ones of murdered children through added trauma at a time of unimaginable hardship and grief. This was of course unintended by those who wrote the Children Act 2001. There is an obvious and vital need to protect children who have been the victims of crime and abuse and must go through court proceedings and relive their trauma. No one would argue against their right to remain anonymous and to be shielded from public scrutiny. However, no one intended for this practice to apply to children who have been murdered. Those are children who will always remain children and will be denied the right to be adults and to speak for themselves.
In every tragic case between the enactment of the 2001 Act and last year, where families wished to do so, we listened as we were told the stories of their children. We heard about their personalities, hobbies and dreams for the future. We heard their names, what they meant to their families and why they needed justice for their children. The families spoke of their grief and it is important that people understand that. We often use words inappropriately. For example, it is described as "devastating" when somebody loses a football match.
It is only when one sees people in this kind of scenario that one realises what the word "devastating" really means. The killing of a child absolutely ruins lives.
A criminal trial does not tell the story of a victim; it determines whether the accused is guilty or not guilty, which in itself can be harrowing. So often, the essence of a person or child at the heart of the trial is lost. The details heard by the public are often clinical and dark, telling us nothing about the child who was murdered or telling us, as has happened, what the murderer thought of the child, which can again be very difficult for a family to listen to. Those children can no longer speak for themselves, so it is their parents who have to step forward in the midst of their grief to correct the public record or to eulogise their child. Over recent months, parents have been stripped of that right to speak publicly about the memory of their child, and likewise, children have been stripped of their right to be remembered. In the past few weeks, there was a case where the child's name could not be mentioned. All the footage focused on the hands of the parent trying to express how important that child was and how they did not want them to be remembered for what had happened to them but rather for what they meant to the parent.
This issue needs to be rectified without delay. The State has inadvertently put families through immeasurable trauma, although I fully accept that the legislation was passed without foresight that this would occur. The aim of the Bill must surely be to return to the practices that existed before the ruling or even to improve on matters. If there are to be revisions, it may be that the reporting of some court evidence relating to a deceased child will not occur, especially when it is offensive or disrespectful or, in some cases, will add substantially to the trauma of the surviving family members. There have been examples of this and there is a very negative public reaction to that type of reporting. We need to ensure that families can refer in media reporting to the names of their children without the need for a court order, that the perpetrators can be named and that the Bill will apply retrospectively, an issue the Minister might address. I accept it has not been a long time since the court judgment issued but it has impacted on certain families. Parents have been silenced over recent months. What will happen when the restrictions are lifted by this legislation? In many cases, legislation does not apply retrospectively, but we need some assurances on that.
While we are all in agreement that this legislation must be passed quickly, we must also take the greatest possible level of care in considering its wording. We are here to rectify the unintended consequences of how the Children Act was interpreted and it is vital that we do not have to return in months or years to undo something in the legislation before us. I have some concerns that rather than returning to the previous practices, the Bill may introduce new restrictions in regard to the naming of deceased children where they did not previously exist. I refer to cases that involve another living child, either as a witness or as the perpetrator. In cases where the perpetrator is a child, the provisions under the principal Act are clear. It is my understanding that we are here to ensure that parents and the media can identify a deceased child automatically, without the need for a court order.
Within the Bill, however, there are stipulations that this provision will not be dispensed with in cases where another child is involved, and the Minister outlined a couple of scenarios in that regard. Imagine a case where the best friend of a child is a witness to their murder and the particular details of the case could result in the friend being identified. The parents of the friend, entirely reasonably, may wish for their child to remain anonymous, while the parents of the deceased may want to have their child publicly identified in order that they can hold remembrance events and so on. Even a publication such as a local newspaper identifying such an event could be problematic in that case. Are we to understand that the court must rule in favour of one child against another, that the parents could be pitted against each other and that the parents of the deceased child could still be silenced? It is important that the Minister address some of these points.
The Bill makes reference to section 93 of the Children Act, which relates to cases where a child is the perpetrator of a crime. What happens in such cases? The anonymity of a juvenile offender is enshrined in law, as we know, but does this mean that the parents of children killed in often horrific circumstances cannot automatically name their child and must await a court order? It is important that the Minister be clear on this. When it comes to interpretation, as we discussed earlier in regard to different legislation, often these debates and what a Minister says will be important in helping with that interpretation, particularly when there is ambiguity. The Minister may wish to comment specifically on those points for that very reason.
It goes without saying that in these circumstances, a court order may not rule in favour of allowing a deceased child to be identified and that a family and the media may once again be silenced. As legislators, we cannot make any assumptions as to how a court will rule in these cases. We need to make sure there is flexibility and balance in this legislation to ensure we are not pitting the rights of one child against those of another. We cannot put more families through the trauma of being forced to remain silent about their child’s memory, by being required to have their voice or appearance obscured in order to speak to their grief publicly or by being precluded from engaging in public events in remembrance of the deceased child. Will the Minister outline her understanding as to how cases such as these will be dealt with? Does she believe there is any chance that some families will be forced to remain silent on the memory of their child when they want to speak, in order to protect the rights of another? Nevertheless, I fully understand that some families will not wish to do this. After the Bill had been passed in the Seanad, its sponsor, Senator McDowell, voiced some of his concerns about how it would be interpreted by the media in terms of what would or would not be able to be reported. I am concerned that those points were made even after the Bill had been passed in the Seanad.
The children the Bill concerns have lost their lives by virtue of having been involved in a terrible crime. We are all trying to ensure that their legacy will not be obliterated and that they will not become so anonymous that the tragic circumstances cannot even be recounted. There is also a potential learning for society. The devastation that is seen can be instructive to the rest of society in regard to the impact such a crime can have. People may not know the deceased but they will at least understand the consequences.
The Minister is not here now but I have a very short comment with regard to her pending maternity leave. I wish her well. I know there is another process to take place. Individual cases make poor law. We need law that presumes a woman who is pregnant can take maternity leave. We should plan for maternity leave for women who are involved in politics, not exclusively at the level of the Dáil and Seanad but also for councillors. While valid in its own right, being a councillor is often the way in which people enter this House. If we are to see women coming through, we need to make arrangements at all levels.
First, I acknowledge those families affected by the decision in the case of the Director of Public Prosecution and EC v. The Irish Times, Independent News and Media, RTÉ and News Group Newspapers who have not been able to remember their children publicly, although I doubt that a second goes by in which these children are not remembered privately. I acknowledge those families with great compassion. Deputy Higgins spoke about one such family in particular. Their pain and desire to honour their children publicly is central to the efforts by Deputies Murnane O'Connor and Jim O'Callaghan, Senator McDowell and the Ministers at the Department of Justice to bring this Bill forward.
I also want to speak about other families and to offer another perspective on this legislation. I want to speak with compassion for the families in question in a way which I hope does not take away from the compassion I expressed for the first group of families. The other families I want to speak about have a slight concern arising from this case and the impact the legislation we are discussing may have. There are instances in which the unlawful killing of a child results from postnatal depression. In these cases, people may be responsible for the death of their children but are not guilty by reason of insanity. As we know, postnatal depression can be extremely serious. I am thinking, in particular, of two men in my constituency today. One of these men lost his wife as a consequence of postnatal depression and his raising his four-year-old son alone. The other man lost his three-year-old girl as the consequence of an unlawful killing arising from postnatal depression and is now raising his other, younger child alone because his wife is being treated for her illness in a psychiatric services setting. In the latter case, the young girl was, of course, the victim of a crime, an unlawful killing, but we all understand mental illness well enough to understand that the causes of, treatments for and possible recovery from these illnesses can be very different. All of those things are beyond my professional capacity but I believe that the House acknowledges that this issue is complex and sensitive and that the causes and impacts of cases can vary considerably.
There are families who have been impacted in the way to which I refer who want to rebuild their lives following this form of mental illness and, extraordinarily, the death of a child as a consequence of that illness. There are families who have suffered and who have other young children and it is their choice, rather than that of these Houses or me, as to how they choose to try to rebuild their families, if they can at all.
The referendum on children's rights and the insertion of Article 42A into the Constitution, which I had the privilege of helping to develop, recognises children as holders of constitutional rights in and of themselves. The article states: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." One of those rights is the right to a family life and another is the right to privacy. My concern about this legislation, as needed as it is to deal with the first group of families I recognised, is that there is a possibility that, as a result of its enactment, a family with another child which is trying to rebuilding its life in its community could be identified at any time, perhaps when that younger child is two, three, eight, nine or ten years old. In small communities, that can have a very great effect. I thank Deputy Howlin for acknowledging, in part, this point, which I raised with him earlier and for what he said about there possibly being more to this and to the way we approach the issue. We do not want to enact this legislation only for a whole set of unintended consequences to arise. We do not want to see proceedings having to be taken on behalf of young children to protect their privacy and to vindicate their rights to privacy and family life as a result of something that happened to a sibling being reported.
The Minister raised the issue of other children who are affected, whether it is a child witness or a victim to whom the proceedings relate. If we take the scenario of the identity of a child who was a witness being revealed, Deputy Howlin is correct that it is just not clear whether that situation is covered by the legislation. It is not clear whether one has to be a witness to the actual crime or whether it also covers witnesses in the broader sense of one who is impacted by the crime. I know from speaking to other Deputies there is a concern that what I am saying might result in the identities of a broader range of accused people being protected, which is not what we are trying to do. I am trying to highlight the fact that the effect of this legislation may allow other children who have been impacted by the death of a sibling and who have no desire to be identified by media in any form to be so identified. In this scenario, there is a deceased child and a child witness and the perpetrator may be identified. I do not need to go back into the scenario.
I will ask a series of questions. What will be the effect of the passage of this legislation on the immediate reporting of cases such as that which I have described? I refer to the real practicalities. In a specific case of this kind, would the media have to make an application if another child is involved? How would it even be known if another child is involved or what the effect of that might be? In those situations, would the family be notified that such an application has been made? Would the family need to take a pre-emptive case to protect the privacy of the other child? How can we expect the family to be able to afford the High Court fees involved in such an application? Would it be for the Director of Public Prosecutions to signal at the outset of a new case that another child may be affected?
That is a broader point. My interest is the family at the centre of this case who live in my area, who have suffered desperately and who have asked me to make this representation and to get clarity on this matter. They do not know, if they go into the newsagents in their local village on a given day, whether they will see their case reported and a picture of the young child going to school with his dad. There is enough distress and trauma in their lives without that additional distress. I ask that the Minister of State clarify the effect of the Act in this case and the particular procedural steps that family and others may need to take. I appreciate the broader interests of this Bill, with which I agree. I should say that the family also does. This net point on the privacy of the other child is, however, really important and we need more clarity on it.
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.
I presume that was an unintentional mistake.
The point I was making before the Acting Chairman interrupted was that we need to look at this again. The purpose of section (2A) is that it will provide the mechanism for the court to get out of a situation in which a child witness or a child accused may be identified. The reality of it is that when one looks at section (2A), there is no discretion given to the court because it states that the court shall not dispense with the requirements of subsection (1) in circumstances where it can result in the identification of a child witness or a child accused.
I always prefer to commend the work of others but my view is that the Bill I drafted would be more effective, simpler and more comprehensible. It should not be the case that legislation has to simply be comprehensible to lawyers, legislators or judges. It should be comprehensible to the ordinary man and woman on the street who is reading it. I would recommend to the Minister that subsection (1A) should be amended so that we simply include paragraph (a) of that subsection and that we would put a full stop after "the proceedings concerned related to the death of the child". We already have statutory protections in respect of accused children and in respect of children who are witnesses, subsection (2) will facilitate that.
The Acting Chairman is stopping me again. I was told I have 51 seconds left.