Dáil debates

Wednesday, 31 March 2021

Children (Amendment) Bill 2020 [Seanad]: Second Stage (Resumed)


Question again proposed: "That the Bill be now read a Second Time."

5:10 pm

Photo of Jim O'CallaghanJim O'Callaghan (Dublin Bay South, Fianna Fail)
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I said virtually everything I wanted to say on 11 March last. The next day, I wrote a letter to the Minister setting out my concerns about the way the Bill is drafted. I put forward some suggestions as to how I thought the Bill could be improved. I thank the Minister for the reply, which she sent on me at the end of last week. I am pleased to say the Minister indicated to me that she has taken on board many of my suggestions and that the Attorney General has given her advice in respect of some of the comments I made. I welcome that.

Having spoken to him, the Minister of State, Deputy Browne, is aware of my concern that if we do not change the Bill from the way it is currently drafted, we will find ourselves in situations in the future where children who have been killed unlawfully may not be named because doing so could possibly identify other child witnesses or child accused.

I will talk more about the Minister's proposed amendments tomorrow when we are dealing with Committee Stage. I thank the Minister and Minister of State for their help in this matter.

Photo of Thomas GouldThomas Gould (Cork North Central, Sinn Fein)
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I thank the Minister. I recognise how quickly she has moved on this Bill. Unfortunately, I personally know a family who have been affected. Kimberly O'Connor, who I can now name because the case has been through the courts, tragically passed away on 19 February last year. Kimberly was a bright, artistic, caring young girl who had a loving family and her whole life ahead of her.

The issue, which this Bill now addresses, was that all along there was an added layer of hurt and confusion to people like Kimberly's family. Loving family and friends sometimes want to have the opportunity to express the grief and tell the story of the loved one they have lost. They need to be given this opportunity. I am glad to see that we are all coming together in the Dáil to recognise these grieving families and give them back their voice.

The car in which Kimberly was travelling on the night she passed away is known in slang terms as a company car, that is, an unroadworthy, uninsured and unlicensed car bought mostly by underage people. They buy these cars for half nothing and then use them for joyriding and spinning around. This loophole needs to be closed. There is nothing preventing young people from buying these practically unroadworthy cars. This needs to be stopped. We have lost too many young people especially, and too many have been injured using these cars. We need to step up now and stop this practice.

The result of that night is that Kimberly is unfortunately and tragically no longer with us, but also that one young man has serious injuries and another is now in prison. The effects of that night will live long in all those families and in the community, but in particular, Kimberly's family.

I ask the Minister to look at bringing in legislation to prevent these cars from being sold. If this car had not been sold then I would not be here now speaking about this tragedy. I sincerely ask the Minister to look at that with the Department. We can work together to close this loophole and make the roads safe for everyone.

Photo of Mattie McGrathMattie McGrath (Tipperary, Independent)
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The next slot is the Regional Group. Deputies Berry and Shanahan have 20 minutes.

Photo of Cathal BerryCathal Berry (Kildare South, Independent)
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From the outset, I commend Senator McDowell for introducing the amendments to the children's Act. I am also quite heartened by the fact these amendments enjoy cross-party support. That is a very good thing. As a member of the Regional Group, I am also very happy to lend my support to this initiative.

I am backing it for four reasons.

First, this is precisely how we should be doing business here in the Oireachtas with both Houses working collaboratively for the benefit of the people. Most importantly, it is about legislation from the formal Opposition being introduced, accepted and further strengthened by the Government, and then brought back before the House for further refinement and debate. That is an excellent model and I look forward to much more of this in the future. I am sure the Minister of State will agree that it would be great if every Bill was assessed on its merits alone rather than its source.

Second, every Member appreciates the importance of pre-legislative scrutiny to prevent any unintended consequences in legislation. The amendments before us emphasise the importance of post-legislative scrutiny. It is important, fitting and appropriate that Members track developments in the courts from a ruling point of view. Where there is need for tweaking and further refinement of legislation, we should not shy away from doing that. This Bill is a classic example of the importance of post-legislative scrutiny. It would be great if the Oireachtas could institutionalise a system whereby legislation would not only be subject to pre-legislative scrutiny but post-legislative scrutiny too.

Third, being in a democratic country, it is not only important that justice is done but that it also be seen to be done. The main thrust of this legislation is not really to identify the unfortunate and tragic minor but to allow for the identification of the perpetrator, whether they be charged or found guilty of a crime of such magnitude. The simple thrust of this legislation is not punishment but prevention. The emphasis is on deterrence not on retribution. Anything that this House can do to safeguard our children and those under 18 years of age, we should grab it with both hands. I believe this legislation will act as a deterrent while improving the safety and security of our children.

Fourth, and most importantly why I am supporting this legislation, it will allow the grieving parents to speak openly and publicly of their loss should they choose to do so. It gives them the right to speak, to elaborate on their victim impact statement and pay tribute to the life of their deceased child. It gives them the opportunity to say whatever it is they wish to say in public. To give them that opportunity is important. It is completely appropriate and reasonable that this prerogative rests with the grieving parents and that the opportunity is there should they choose to accept it.

I back fully these proposals. I very much look forward to these amendments being enacted as soon as is practically possible.

5:15 pm

Photo of Matt ShanahanMatt Shanahan (Waterford, Independent)
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I welcome the Bill. I thank Senators McDowell, Boyhan and Craughwell, as well as Deputy Jim O'Callaghan, for the amendments they have proposed and their work on the Bill. It will receive wide support from the House.

This legislation will be very much welcomed, particularly by lobby groups, parents and survivors' groups. I commend the policy it seeks to implement. Many of us have heard news headlines about offences against or involving children where reporting restrictions were put in place. That was based on good intent but, in essence, it actually delivered bad law. Protecting the rights of children is important but the law should not protect the identity of those perpetrators of wrongdoings who certainly need to see justice. Justice does call for clarity and transparency. Obviously, the law must protect children, particularly child witnesses who have given evidence. An amendment in this Bill will ensure that those who have given evidence, if they wish, may waive their rights later on.

The Bill's focus is to permit the identification of persons accused or convicted of homicide offences against a child rather than the identification of the child victim. We can all absolutely support that. The amended section will continue to protect the identity of living child witnesses and victims involved in proceedings. It will permit adults who are victims of an offence committed against them when they were a child to waive the anonymity provided for under the Children Act 2001.

The Regional Group certainly supports and endorses this proposed legislation. We look forward to it going through the House and being passed into law. As Deputy Berry and many others have highlighted, it will give parents the chance to mark the passing of their children publicly where that has not been the case. It will give them a chance to celebrate those lives but also to seek justice for those children who have passed away through violence or abuse. That is to be commended. I commend the Bill to the House.

Photo of Cathal CroweCathal Crowe (Clare, Fianna Fail)
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This legislation is important and timely. My colleague, Deputy Jim O'Callaghan, has been to the fore in advancing this over the past several months. My colleague, the Minister of State, Deputy Browne, from Wexford is doing a fantastic job in the Department in progressing this legislation.

The renowned British graffiti artist, Banksy, has often said that one dies twice. The first time is when one stops breathing, loses body functions and one's body shuts down. The second time somebody dies is when one's name is no longer mentioned. That is just the reality in the normal course of life. That happens for many people in old age. They are remembered, there is a funeral and a celebration of their life. The normal rituals that our country has had for centuries come into play with the person remembered. Many years pass and eventually they are forgotten about. They become a gravestone in a graveyard, held in the memory of some family.

For many young people killed in a homicide, however, that right has been short-circuited. The moment they die there is a media blackout on naming them. The minute their case gets into the court system they become totally anonymous. They are victims of a crime and are not around any more to tell their story. Just as Banksy famously said, they have died twice because their name is no longer mentioned, they become invisible and anonymous victims.

Fianna Fáil welcomes this legislation which deals with an anomaly in the Children Act 2001. The legislation arises from the need to address the Court of Appeal ruling which has prevented parents from speaking publicly about their deceased child in cases where the child was unlawfully killed. It has also prevented the naming of the person accused or convicted of the manslaughter or murder of a child. The Bill permits the identification of persons accused and convicted of homicide offences against children. Why should there be any protection for them?

We need to ensure the legislation is expedited and we change the law promptly because it is unfair to the memory of children who have been killed. It is also unfair that identified flaws in the 2001 legislation would prevail. I cannot imagine there being any opposition to this legislation. While there might be several positive amendments, by and large, the key tenets and backbone of this legislation are positive. It gives a voice to young people who have been voiceless. It allows families to move through the stages of grieving these lost lives and to be able, once more in the public domain, to name the child or teenager who has lost his or her life. It will remove that veil of anonymity which should never have been there.

5:25 pm

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I am delighted to get the chance to speak on this matter. We fully support this Bill and hope it will pass speedily. We have been discussing this issue for quite a long time. It is totally unacceptable that the families of children who were the victims of a homicide cannot name them. I expected to have the chance to speak on this issue last week and I spoke with a family I know about it. A number of families in the Carlow-Kilkenny region are affected by this. One man described it as frustrating and retraumatising. They felt they were being silenced or gagged and that the right of the families to free speech was somehow less important than the rights of the perpetrator. It is important that we take that on board.

In general, our justice system needs to improve for the families of victims. The situations are horrific. It is very difficult for families and then they are faced with a system that is often very cold and harsh, where they do not know the rules. People genuinely feel that the rights of the perpetrator somehow trump their own as the family of the victim. That is unacceptable and we need to work to change that. Everybody in this Chamber, regardless of their political party, wants to see that changed. It is great that we are taking this issue on board and doing something constructive about it.

We have had this debate before. While it is important that everyone gets the opportunity to have their voices heard, the families are waiting for this to be passed and we should be doing everything in our power to pass it in a speedy and timely fashion. We then need to look at wider consultation with the families of victims about how they have been treated, or how they have felt they have been treated, to learn from that and see what we can do to improve that situation. It is a horrific situation for anyone to be in but having more of a helping hand or a system that is a bit more sympathetic towards the families would make it much better. Hopefully the Minister of State will take that on board. Many of us could put him in contact with a number of groups to consult with on this issue in order to improve that system for everybody.

Photo of Michael CollinsMichael Collins (Cork South West, Independent)
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The objectives of the original Bill are well-meaning. It aims to address the profound negative impact the ruling of the Court of Appeal on this matter is having on grieving parents who are unable to remember their deceased child's death, name or legacy. That is very clear. It aims to give power back to those parents in order that they can remember their children or their family members in the way they want. This Bill, when enacted, will allow grieving parents to speak publicly about their deceased child. I fully agree with the Minister's statement that this is very important legislation. I hope it can be enacted without delay because we cannot continue with parents not being able to speak their child's name aloud and remember them in the way they want. The parents and families of these children should be able to remember them and use their names. That is how they are never forgotten. That is how parents deal with their grief.

Speaking of grief, I take this opportunity to ask the Ministers who are here to speak with their colleagues in government and ask them to reconsider the number of people allowed at funerals, which was announced last night. It should be increased from 25 to at least 50. It is a very sad state of affairs when one sees close family members standing outside the door of a funeral on a wet day as they cannot go in and be part of the mass or whatever kind of service it is. They feel they are excluded from their loved ones' services. I have attended many funerals in west Cork during Covid-19, albeit standing on the side of the road, and I have noticed that people in this country would like to be able to attend funerals, to say a proper goodbye and pass on their respects to the family and friends of the person who has passed away. Funerals in Ireland are a ritual, or they certainly are in west Cork. We have always been able to take part in going to a funeral. Now in west Cork I see family members and very close friends outside the door of a church and friends and neighbours lining the streets, while social distancing and wearing masks, to pay respects. All these churches can hold up to 500 people, most of them no less than 300, and the fact that only ten people are allowed inside at the moment is farcical. As we are talking about grief, I urge the Minister of State to review urgently the number of people who can take part in a funeral in a church, especially where there is ample space.

The Bill we are talking about aims to give back power to parents in order that they can remember their children or family members in the way they want. I give my full support to this Bill.

Photo of Michael Healy-RaeMichael Healy-Rae (Kerry, Independent)
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I am grateful for the opportunity to speak on this very important Bill, which would amend section 252 of the Children Act 2001. I sincerely thank the people who have worked on the Bill, as well as those who worked on the amendments, which are very important. The Bill, when enacted, will allow grieving parents to speak publicly about their deceased child. One of the most horrendous things any human being could ever endure is the loss or death of a child. The way the aftermath of such a situation is dealt with is of paramount importance. That is why we as legislators, be it in the Seanad or the Dáil, have a serious onus of responsibility and a duty of care to ensure that what we do is correct, while being mindful of those families' situations and doing everything we can to protect and ensure the legacy of the deceased person.

We must remember that when a child dies and is robbed of life, he or she is also robbed of the future, of his or her dignity and of his or her place among us in this world. We should cherish the child's memory in a very special way. We should respect the parents, the siblings, the aunts and uncles and the extended families by ensuring that the child's name can be spoken and printed and can be out there so people know that person existed. I know that the recognition of every child, be that child born or unborn, is a matter very close to the Acting Chairman's heart, though that is a subject for another day.

The Bill, with the Minister's amendments, would appear to bring about very welcome and needed changes. An outrageous situation developed when the Court of Appeal ruled that the spirit of section 252 of the Children Act 2001 also applied if a child was deceased or had reached the age of 18. Everyone will agree that it is desirable to have a text that will be clearly understood by the Judiciary, practitioners, relatives of injured and deceased parties, witnesses and members of the media. I thank senior counsel Senator Michael McDowell and others who put so much effort into this, such as Deputy Jim O'Callaghan and all the others who worked on the amendments. How situations like this are dealt with is so important.

As we are talking about deceased persons, I will also use this opportunity to support what Deputy Michael Collins said and give the Kerry perspective on it. Up until now we had a cruel situation where ten people were allowed go into a church for a funeral. Given the size of the smallest church in Ireland, a person who is deceased and ten people is a very small number and there would be more than adequate and ample room in one for social distancing. There could be 50 people in the majority of the churches I know and they would be more than adequately socially distanced. They would certainly be more socially distanced than they would be in any of the places that are allowed open at present, such as stores, shops, food shops and so on. It made no sense and even the increase the Government has brought in now to 25 is ridiculous. That is not right either because in any Irish family there will be more than 25 people among the very close relatives, such as the sons and daughters, the sons-in-law, daughters-in-law and the grandchildren. It would be respectful to allow the immediate family in its entirety into the church. They would be able to do so in a safe and proper manner. Seeing people sitting in motor cars listening to the funerals of loved ones or watching them on their phones was one of the most disrespectful, horrible and awful things to see in the last number of months.

It has been horrendous to stand outside under umbrellas in the rain looking in to one of these devices. It is outrageous and I am sure that the majority of Members of this House would agree. The only reason I bring this point into this debate is because it is ultimately a consequence of one of the issues that we are speaking of today.

This Bill is welcome, timely, right and proper. There is a great deal more work that we should be doing when it comes to the protection of children and to how their deaths are dealt with, be they from unlawful acts such as murder, or in the case of accidents or mishaps that happen which result in the death of a child. Every support that the State can offer and every agency that we can have in place should be put in place. There are good groups working out there who deal with bereaved parents. Over the years, unfortunately, I have had to assist many couples who have gone through this trauma. As a public representative one of the most upsetting and humbling experiences that one will have to deal with is to be inside the home of a person who has died at a young age. It has consequences which continue for years and years afterwards. There is no end to the hardship and to the mental and physical agony that parents, siblings and relatives of a young person go through. When a young person’s life is robbed, the hopes, aspirations, dreams and ideals that one would have had for that young person all go with them into a grave. This is shocking, awful, horrible and horrendous.

It is very timely that we are here today and that we are all of the one frame of mind. It is totally immaterial whether we are Sinn Féin, Fine Gael, Fianna Fáil, Independents or whatever, as we are here to work for those parents, families and for those types of situations and we are all wearing the same colour shirt when it comes to doing that job, in my humble opinion. I thank the Leas-Cheann Comhairle.

5:35 pm

Photo of Mattie McGrathMattie McGrath (Tipperary, Independent)
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I too am happy to speak on the Children (Amendment) Bill. We are almost fiche bliain ag fanacht ar an mBille seo. It is important for us to have a review of legislation and we discussed the point on reviews of legislation here some weeks ago when Deputy Pringle put some amendments down, I believe, to the Children (Amendment) Bill. Clearly, there were inadequacies, weaknesses and flaws, not by design or deliberate action, but this can happen with legislation. The best laid plans of God and man can go wrong, as we know. The best laid pieces of legislation can be challenged, fragile and can be quite inept and not adept enough in dealing with situations. People have to deal with the traumatic death of a person, and the sudden or violent death of a young person is far more tragic. Every life is the same and counts as far as I am concerned from the womb to the tomb but in the situation of daoine óga, is uafásach ar fad é. I know the Leas-Cheann Comhairle will be aware of cases when wearing her other hat as a practising lawyer, but I also see that Senator McDowell and Deputy O’Callaghan have had a very significant input into this legislation and have put forward some amendments.

The Cabinet initially approved the proposal by the Minister for Justice, Deputy McEntee, to support the Children’s (Amendment) Bill after the Independent Senator McDowell brought it forward. However, the Minister has proceeded by making several key amendments to the Bill and these will be discussed on the next Stage. The objectives of the original Bill are well-meaning. Its clear aim is to address the negative impact that court rulings are having on grieving families and parents who are unable to remember their deceased child’s name or legacy. The original Bill’s aim is to give power back to those parents so that they can remember their children or family members in the way that they want to, which is very important.

Other Deputies have referred to the tragedy which we have had of 12 and a half months now of the lockdown where people have been unable to be with their loved ones when they closed their eyes for the last time or took their last breath, have not been able to have a proper mourning space and time with family, or indeed had proper attendance at funerals. Is mór an trua é sin. It is heartrending. I have listened to different psychiatrists, people who are far more qualified than I am, who have spoken about the long-term impact of this. I heard a former governor of Mountjoy Prison on the radio this morning talking about the trauma. He has dealt with many different situations. We are all well aware of the trauma of dying on one’s own and people being unable to mourn properly, or to have the dignity of a proper funeral which is something that we are so good at in rural and urban Ireland. When the chips are down every community, whether urban or rural, gives a great dig-out to the family who have lost a member. It is a big part of our culture, heritage and traditions in Ireland an tsochraid mhór mhaith and these are very important parts of this.

The current position under the Children Act is that it is an offence to publish anything that could lead to the identification of a child who has been the victim of a crime. This is an important point as we have seen court cases, perhaps not of children, where names got out on to social media and this damages the integrity of the court process and system.

In October 2020, the Court of Appeal ruled that these restrictions also apply if the child is deceased or has already turned 18 years of age. The Children (Amendment) Bill 2020 will amend section 252 of the Children Act 2001, which was ruled upon by the Court of Appeal. This section prevents the identification of the deceased child in criminal proceedings for the offence against the child.

Any crime against a child is heinous and we can see why that section is there but we need to get the balance right in allowing the family to have their proper respect, their love to continue and to have a grieving process, but also to deal with the person or persons who are being charged before the court. The Bill, when enacted, aims to allow grieving parents to speak publicly about their deceased child. At the time, the court rejected an application by The Irish Timesand several other media outlets to allow them to identify a woman who killed her three-year-old child. She was found not guilty of murder by reason of insanity following a short trial last year. Is rud uafásach ar fad é sin freisin but if it is a case of insanity nobody can explain or legislate for that either. It is vital that we pass this legislation. There is goodwill throughout the House to try to make this Bill as robust, sensitive, understanding and as well-meaning as possible. Some 19 years is a long time to wait for it but we are here now, thankfully, and we need to deal with it as best we can and to have it passed without delay. The Bill was introduced after the Court of Appeal ruling that the dead child cannot be identified when someone is charged. It was bound to happen and it has happened. Before that trial began two High Court judges ordered that the victim should not be identified and this meant that the woman could not be named. We understood the very good reasons for that but we are here now and in spite of Covid-19 this Bill is progressing through the House. I certainly do not intend to delay it in any shape, make or form and I wish it God’s speed and hopefully it will go through all Stages here, including Committee Stage.

It will be passed.

Some good amendments will be tabled. They will be debated and, I hope, taken on board. I also hope there will be a review clause included in order that we might assess how the legislation beds in and functions, what impact it will have on trials and, above all, the impact it will have on grieving families. The names of their loved ones can be spoken and remembered and their lives can be celebrated, short and all as they may have been. We definitely have to have a review, and not a review after six months but after two years. I commend the Bill to the House.

5:45 pm

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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I welcome the Children (Amendment) Bill, which will rightly lift the blanket ban on identifying children who were killed as a result of the perpetration of criminal offences. Only a parent who has suffered the loss of a child can truly comprehend that loss, and it is surely compounded when a child or a young sibling's life is taken in heinous act.

For many, the pursuit of justice is a key part of the grieving process. So often we have seen heartbroken parents and families on the steps of our courthouses desperately clinging to photographs and cherished memories. It is critical that the memory of the life of their loved one is front and centre in any court case. No child should be a footnote. No child should be anonymous. The loss of a life and the harrowing impact of that needs to be clearly visible and identifiable throughout any court case. Justice needs to be seen to be done and no grieving parent can ever be denied the right and opportunity to speak publicly about their deceased child.

This is important legislation and I am pleased to see it advancing at pace through the House. I will be equally pleased to see it come onto the Statute Book while the Minister for Justice, Deputy McEntee, is at the helm. I also acknowledge the role and contribution thus far in the process of my colleague, Deputy Jim O'Callaghan, and that of Senator McDowell, who played a huge role in the formulation of the Bill.

We cannot excuse or countenance any delay with the legislation. No grieving or heartbroken parents can ever be denied the right to speak their child's name, lovingly relive and cherish memories and paint for us all a clear and visible picture of a life brutally stolen. When a heinous and callous brutal crime takes the life of a child it would be deeply regressive if we allowed a situation pertain where parents and families were unable to speak the child's name and remember and celebrate such an intrinsic part of their lives. Parents and siblings need the right to remember loved ones and safeguard their legacies. The legislation before us is about putting that right.

I am pleased that there is cross-party support for the legislation. The latter reflects the House's empathy for the countless families that have been robbed of much loved children, often as a result of callous, vicious or barbaric acts. There is never an excuse for bad or clumsy legislation. Thankfully, the House is today putting right legislation that was flawed.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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The recent decision on the application of section 252 of the Children Act 2001 has been causing a lot of heartbreak for the families of children who were murdered. At the end of October, in the Court of Appeal, Mr. Justice Birmingham held that reporting restrictions relating to offences against children would also apply even if a child had turned 18 years or was deceased. He also found that the identity of the person responsible for the death of the child could also not be disclosed if said disclosure could lead to the identification of the child, whether directly or indirectly. Section 252 applies once a person has been charged with an offence. This means that we have instances where a crime is committed and a child is murdered and media outlets can report the matter widely. They can name the child and include photos of him or her and quotes from his or her family. However, once someone is charged or a court case starts, the reporting changes to being about a person charged with the killing of the child on the relevant date. This is really absurd.

I welcome that the Government has moved quickly to try to remedy this issue. I cannot imagine the hurt of families and loved ones who feel that their children have been erased in all of this. So much for our victim-centred approach to criminal justice. Mr. Justice Birmingham's ruling has meant that even adult survivors of child abuse cannot be named if their cases went before the courts. Last December, a survivor was on the "Today with Claire Byrne" radio show to bravely tell her story but she could not be referred to by her own name. Talk about taking away someone's agency. This is what we are remedying today, which is good.

I note that the Bill before us was tabled by the Opposition in the Seanad. It was introduced at the beginning of November last year. In the Government briefing note on the Bill, we are told that the Minister met Senator McDowell and Deputy O'Callaghan and decided to accept the Bill and make the required amendments to it. The briefing states the Minister took the view that the most expeditious approach was to proceed with the Seanad Private Members' Bill and make the necessary amendments on Committee Stage rather than putting forward a Government Bill. I just wanted to read those words into the Dáil record. How many times have we heard or experienced this? How many times have we asked for Opposition Bills to be accepted and amended on Committee Stage? We are all legislators. I welcome that we now have evidence that the Government can work with us when it decides to do so. The key point is its deciding to do so. It is not that Opposition Bills cannot be put forward, it is just that Opposition Bills that the Government does not want cannot be put forward.

This is a tragic topic to discuss. In preparing for today, I wondered how often these tragic crimes might occur. I also thought about other circumstances that might highlight the vital need to protect vulnerable children, and highlight the times over our history, and still today, when we have failed. The atrocities committed at so-called homes throughout the country are never far from my mind, the institutions where mothers and babies were kept, maltreated and worse. The recent final report of the now-dissolved Commission of Investigation into Mother and Baby Homes and Certain Related Matters found that between 1922 and 1998, 9,000 children died in Ireland's mother and baby homes. This shocking and heartbreaking figure relates only to the 12 or 14 homes that were investigated by the commission. There were hundreds such institutions and others around the country. What would the body count be if we included them? It is shameful.

On Wednesday, 24 February, during my contribution on statements on the New Decade, New Approach agreement, I raised the tragic case of Noah Donohoe. I have been liaising closely with Noah's tenacious mother and aunt in recent months to highlight this important case south of the Border. A week ago, on Wednesday, 24 March, Senator Eileen Flynn and I hosted a very well-attended online briefing with Noah's mother and aunt and representatives from the Dáil and Seanad. As most Deputies already know, last June, Noah, a young 14-year-old boy, went missing in Belfast. Six days later, his body was found in a storm drain. As a result of inadequacies in the police investigation or even a lack of such an investigation, Noah's family have worked to piece together his final journey. They have walked the route and followed up on the hundreds of security cameras that cover it. When Noah's mother, Fiona, put out a public call for people with phone evidence to come forward, they did so. A grieving family should not have to conduct an investigation into a loved one's death. It is completely unacceptable to think that this family is fighting for answers and justice. The family have started the #RememberingMyNoah campaign and have been trying to raise public awareness of their campaign south of the Border also. The Donohoe family needs help to get these answers. I have been urging the Taoiseach, the Tánaiste, and the relevant Ministers to help. People in the North need to have confidence in the PSNI to investigate all crimes regardless of the circumstances. The reason I bring it up is because if Noah's case happened down here, as things stand without the Bill if somebody was tried Noah's name would be erased from our memory afterwards. This is what we need to prevent and what the Bill will prevent.

Another tragic aspect of this topic is that of murder-suicides within families. How many times have we been rocked by tragic news of suspected murder-suicides, most usually the father as the perpetrator of the violence killing his wife or partner and children? Between 2000 and 2020, there were more than 30 murder-suicide cases in Ireland, with 146 people, mostly women and children, killed in their own home or by family or partners. In May 2019, the then Minister for Justice, Deputy Flanagan, announced that there would be an independent specialist in-depth research study on familicide and domestic homicide reviews. The research was to be led by Norah Gibbons and was to report back to the Government, with recommendations, after 12 months. Where is this review? The website is still live but does not seem to have been updated since 2019. The lockdown saw a huge increase in the number of people accessing domestic violence helplines and Barnardo’s and Childline reported increases in the number of children contacting them. This matter is very topical and the study should be completed.

A HSE briefing on murder-suicide was published in December 2017.

This briefing states that the National Suicide Research Foundation has examined the international evidence and the findings indicate the following: the perpetrators of murder-suicide are most commonly male; the mean age of perpetrators is between 40 and 50 years; fathers are the main perpetrators of filicide - the killing of one's own child - and spouse homicide; fathers, rather than mothers, are more likely to take their own life or attempt suicide following homicide; and two thirds of fathers killed, or attempted to kill, their spouse or partner in these acts.

This truly is one of the most tragic topics to be discussing and legislating for. As usual, I think about the ability to prevent such crimes. Where are the early intervention services? Where are the timely, accessible and affordable mental health supports? Where are the supported accommodation options for families trying to keep safe or for those seeking help?

In my contributions to the justice committee earlier this week, I brought up the subject of male violence against women, which is relevant here also. I acknowledge that it is not only fathers or men perpetrating these heinous crimes but data show that they are the majority. Why is our society structured in such a way that either glorifies violence against women or enables it?

We had an interesting discussion in the House about post-legislative reviews. It was acknowledged that the Oireachtas has improved greatly on pre-legislative scrutiny. However, there seemed to be a growing consensus that there is a need to look at how enacted legislation translates into enforcement. This is an area that requires more resources in the prevention stage. Hopefully, the review on familicide and domestic homicide will shed some light on what we, as a State and a society, could be doing to avoid such tragedies. In an ideal world, such a review of the legislation before us today would not be needed as it would not exist but, unfortunately, that is not our reality. However, there are measures the Government can take to not worsen the pain of bereaved families, and that includes this legislation and allowing families to name their loved ones.

We have also been hearing increasing reports of young children being used as drug runners and being exploited by criminals. In January of this year, the Irish Examinerran a story on the annual report of the Blanchardstown Local Drug and Alcohol Task Force. The report found that the average age of drug runners had reduced from 13 years of age to ten years of age, with some evidence suggesting that children as young as eight years of age can be used to carry and deliver drugs between dealers.

I welcome recent discussions around the Criminal Justice (Exploitation of Children in the Commission of Offences) Bill, which would make it an offence to compel, induce or invite a child to engage in criminal activity. The crime would carry a maximum sentence of up to five years in prison. However, those working on the ground have said that the legislation would be very difficult to enforce. There are huge issues around intergenerational crime and poverty, peer pressure, threatening behaviour, extortion and intimidation to be addressed. It is simply not enough to say, "The gardaí are on your side". Many of the communities where children are lured into taking part in criminal activity do not have a positive relationship with the Garda. They are communities which have been targeted, vilified, abandoned and stigmatised over many generations.

The 2017 Irish film, "Michael Inside", by Frank Berry, is a powerful representation of how easy it is for young people to become involved in crime. The protagonist of the film, Michael, is 18 years old, but it is an accurate representation of how teenagers and young children become embroiled in the criminal justice system. In many communities, the worst thing anyone could be is a "rat" and they put their family in danger by speaking out. That is the reality.

In conclusion, I will be supporting the Bill but I am urging the Government to do more to protect vulnerable children. This Bill is certainly a step along the right road and, hopefully, we will keep going.

5:55 pm

Photo of Carol NolanCarol Nolan (Laois-Offaly, Independent)
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I welcome the opportunity to speak on this important Bill. As we know, it seeks to make provision in respect of the publication or inclusion in a broadcast of reports or pictures identifying, or likely to identify, certain children. As Senator McDowell stated when he was introducing the Bill in the Seanad, it emerged because of a decision by the Court of Appeal on 29 October last. The case it was dealing with was an appeal brought by The Irish Times, Independent News & Media, RTÉ and the NewsGroup newspapers against an order made initially by Mr. Justice Michael White and subsequently by Ms Justice Carmel Stewart in the High Court directing that the identity of the child, the subject matter of the prosecution in question, who was the victim of what was an apparent homicide, should not be revealed. Senator McDowell went on to identify the central concern arising from that Court of Appeal judgment, in that it represented a major injustice to the parents of a child who is killed in a homicide by abolishing their right of free speech and the rights of parents to tell their story in public, and to express their tragic loss in many cases. I was happy to see, however, that the Minister, Deputy Helen McEntee, stated she had received Cabinet approval to support this Bill subject to proposed Government amendments.

Not one of us would accept being placed in a situation where we could not speak freely in such horrendous circumstances. While there may have been a legal argument for the decision, it was surely incomprehensible at a human level. I accept however, as Senator Rónán Mullen, one of the proposers of the Bill, said in the Seanad, that through simple logic and the rules of statutory interpretation, it simply was not open to the Court of Appeal to substitute what might have been the intention of the Oireachtas in 2001 in place of what the clear meaning of the section we are amending today actually was.

It is only right and proper, therefore, that Members of the Oireachtas and the Government have shown a willingness to address this issue in as efficient a manner as possible. No law should inflict additional suffering on parents who are already grieving the greatest kind of loss there is - the loss of a child through murder. We have a duty to end that suffering and to allow them the legal protections that should exist as a matter of right. If clarity can be provided by this Bill, I will support it wholeheartedly.

I once again commend the Senators for bringing forward this Bill and also commend Deputy Jim O'Callaghan, who brought forward similar legislation in this area. It is a positive witness of good parliamentary collaboration that we should see more of in the future.

Photo of Alan FarrellAlan Farrell (Dublin Fingal, Fine Gael)
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The Bill is of significant importance and will have a clear and profound ramification on the way in which we, as a public, become aware of some of the most tragic cases that take place within the State and, indeed, how the media can report on those same cases. I thank Senator McDowell and others in the Seanad for bringing forward this legislation, and the Minister, Deputy McEntee, for having the ambition to see it passed in the quickest time possible. I note what the previous speaker said about a previous Bill in the name of Deputy Jim O'Callaghan, and I commend him also for pushing this agenda.

As the House will be aware, the Bill seeks to change section 252 of the Children Act which, as a result of the ruling in the Court of Appeal last October, interpreted this section as prohibiting the naming of a child victim once criminal proceedings had begun. Until this point, there had not been any significant issue in this regard but the ruling by Mr. Justice Birmingham was a valid one and based upon a reading of the legislation. As a result, the law has now given rise to this anomaly.

It is important to acknowledge that the legislation, as it currently stands, was never intended to result in this situation arising. Instead of being a restrictive measure, it was in fact envisaged as a protective measure for child witnesses and-or victims in proceedings. It is, therefore, the right decision to amend our legislation to facilitate these changes.

Cases in which a child has been killed or has been the victim of some other heinous crime are some of the toughest and most heart-wrenching criminal cases we encounter as a society. An attack on innocence and the knowledge that we cannot always be there to protect our loved ones means these cases often attract huge public interest and can spark debate within the public sphere and the media and, indeed, the political realm. As a result of the current legislation and the interpretation of the Court of Appeal, it is now likely that the accused in such cases will not be named so as to protect the identity of the victim. Moreover, it significantly restricts the ability of the family of the victim to control their own narrative while, at the same time, the case of their child is spoken about throughout the country.

It limits their ability to grieve publicly, to talk to the media about how they wish their child to be remembered and to celebrate their child's life rather than relive the tragic end. So much of this Bill is about just that: giving power back to the families of victims and allowing them to control their own route through a torturous time in their life. For the families of victims, the pain and suffering they go through is simply unfathomable. It is a burden they carry for the rest of their lives and one which never gets easier. It should, therefore, be the responsibility of the State not to add to that suffering or pain and to ease, insofar as it can, the burden they carry. However unintended, the legislation in its current form muzzles these families and restricts their ability to grieve in the manner that is necessary and right for them. I urge all parties to support the passage of this amending legislation which loosens those restrictions. It is in this context that I welcome the Minister for Justice's decision to introduce a number of Government amendments to this Bill which will strengthen it. I particularly welcome the amendment that will see this legislation become retrospective and effectively lift the restrictions that may have occurred in the period between the ruling by the Court of Appeal in October last year and the enactment of this amending legislation. I echo the comments of Deputy Berry on the importance of both pre-legislative and post-enactment scrutiny in terms of picking problems up.

I mentioned that these cases often attract a huge public reaction, as is more and more evident in the wake of the social media revolution. We have seen cases in the past where individuals embarked on their own research on social media to find the name of the accused or the victims involved. It is not hard to see how this, combined with the current form of the law, could prove to be a toxic mix which would only serve to drive unverified speculation as to the details of the case and those involved. There is the potential for misinformed and misguided assertions which have the ability to do untold harm to victims and their families and even, conceivably, someone wrongly identified on social media. Indeed, we also find other significant restrictive issues that have arisen as a result of the current situation, including the limiting of the ability of a child victim of crime, now an adult, to waive the right to anonymity and speak publicly about his or her experience. This is an anomaly that must be corrected. The survivor of a crime should not, as an adult, be prevented from speaking about that crime. This is counter-intuitive and would prolong the suffering of some, denying them closure by denying them the ability to highlight the issue.

We do not have to look too far into the past to see that the children of Ireland have often only been an afterthought in our society and laws, although we have made significant progress in recent decades in becoming a more open, compassionate and warm community. As a member of Fine Gael, I am very proud to have been a part of moves to bring the rights of the child to the forefront of government and the Constitution and to facilitate children's voices being heard at national level. As a former chairman of the children's committee, I am pleased to say that through a number of groups that appeared before that committee, members were able to hear directly from children on legislation and policies of the State that directly affected them. The moves under Fine Gael to which I referred include the referendum on children's rights which was passed a number of years ago and the introduction of the first stand-alone Minister for Children and Youth Affairs with a seat at Cabinet. These were profound advancements in how we develop legislation and policy. We have an opportunity now to hear the views and perspectives of the child. Without this, we cannot hope to truly and fully reflect the diverse and multifaceted views of our younger generation. This is something I hope will be brought into policy development across all Departments more and more as we continue to strive for a more perfect system.

We have, in the Minister for Justice, Deputy McEntee, a person who seeks to make profound and important changes to the legal and justice systems in Ireland. There can be few more profound changes than giving the families of victims the right to express their grief in the way they feel they need to. I hope to see the passage of this Bill without delay.

6:05 pm

Photo of John LahartJohn Lahart (Dublin South West, Fianna Fail)
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I wish to flag that I do not intend to use anything like the 20 minutes allotted to me.

I was in the House when this Bill was introduced by the Minister. It is a short, complex Bill dealing with a complex issue. I listened keenly to Deputy Alan Farrell's contribution and noted how connected he was to the issue. My party colleague, Deputy Jim O'Callaghan, was very alive to the implications of Mr. Justice George Birmingham's interpretation of the existing law. He was particularly alive to the consequences of the judge's decision in a week when there had been an incident that would have pertained specifically to the issues this Bill seeks to address. I commend my colleague, Deputy O'Callaghan, for prompting the debate on this and Senator McDowell for coming up with a Bill on it. I also commend the Minister for Justice, Deputy McEntee, for responding so quickly and the Government for taking on board the necessity for this legislation.

The Bill aims to protect the reputation of children and to assist the families of deceased children who have been killed or murdered. It was very difficult for grieving families to know that the perpetrator of the crime, the person who took their child away, would never be named because of a law which was probably never intended to cover this kind of crime. The law was intended to protect the identity of children in other circumstances but was interpreted by our courts as impeding the publication of the name of the perpetrator in order to protect the child. That law was obviously very well intentioned but it is time to deal with its consequences.

I was here on the night that this Bill was first debated. I note that the Minister of State, Deputy Browne, is here today and welcome his response to an issue raised by Deputy O'Callaghan in relation to cases where the identity of the deceased child could not be published in circumstances where there is a living child witness. This was a matter of concern to Deputy O'Callaghan and he highlighted it in his contribution to the debate. I note that there have been further consultations with the Attorney General and it is the Government's intention to table an amendment on Committee Stage revising subsections (2) and (2A) of section 252, on which the Minister will provide more detail later. That was the only anomaly that stood in the way of the Bill being dealt with pretty rapidly in the Dáil.

Nobody could argue with the thrust of the Bill. One or two concerns were raised about one or two aspects of the Bill that might have diluted its impact on protecting children but the Minister and the Minister of State clearly intend to deal with them. It looks like any minor impediment to making the law do what was originally intended seems to have been dealt with. The original Bill contains mandatory reporting restrictions where a trial relates to an offence against a child or where a child is a witness in any such proceedings. In 2020, Mr. Justice George Birmingham upheld the High Court's interpretation of that section of the Bill as meaning that the reporting restriction relating to offences against children also applied in circumstances where the child is deceased or has turned 18. That is what prompted our colleagues to bring forward legislation that would deal with this. This Bill amends the original legislation to enable the courts to remove the restrictions on publishing the names of the perpetrators of these crimes, which is very welcome.

There is a profoundly negative impact of rulings under this law on grieving parents whereby they are not able to remember their deceased children's names or legacies in public as a result and as a consequence of that. The Minister, Deputy McEntee, made reference to this in her contributions in the Dáil.

The original intent of section 252 of the Children Act 2001 was designed to protect child witnesses and child victims from the negative impacts of being publicly identified in criminal proceedings. We do not have to dwell too long, however, to know that publication of those kinds of details forms part of the justice and part of the consolation that victims of crime and their families can derive from the justice system. That little piece of justice, which is quite profound in its impact, has been denied to grieving families over a period of years. Clearly, the judgment of Mr. Justice Birmingham left the Oireachtas with no alternative but to move. The Oireachtas has moved really quickly in identifying that the main issue to be addressed is to allow the identity of a child who has been unlawfully killed to be published, which would also remove the current difficulty with identifying the person who has been charged in connection with the death. If a person perpetrates a crime, part of the punishment is in being named and shamed. That is one of the real difficulties with miscarriages of justice where people find themselves wrongfully charged. Because of the nature of the crime their names are allowed to be entered into the public arena. We are aware of many such cases over the years and how, due to the stigma that attaches to it, the course of these people's lives were profoundly, inexorably and irreversibly changed. We can, therefore, see the impact of publishing the name of the person who has perpetrated a crime against a child or who is involved in the murder and killing of a child. Part of the punishment and part of justice being seen to be done is the publication of the perpetrator's name.

That is my contribution. I thank the Minister of State, Deputy Browne, for his presence and for responding to the minor queries raised on particular sections of the Bill.

6:15 pm

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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I thank all Deputies who contributed to this debate. I thank Senator McDowell for putting forward his Bill and Deputy O'Callaghan who had put forward a similar Bill.

As the Minister of State with responsibility for youth justice I am particularly pleased to support this Bill in the House today. There have been a number of proceedings in the courts since the Court of Appeal decision in DPP and ECv.The Irish Times and others, which involved very tragic circumstances where families have been deeply upset by the fact that their child who was killed cannot be named in the media as a result of this judgment. I can only imagine how deeply upsetting this is for those families not to be speak openly about their child in the media in such circumstances. There is also a deep sense of injustice where a person convicted in relation to a child's death cannot be named due to the fact that this would have identified the deceased child.

A number of detailed points were raised by Deputies and I will try to answer them. First I will make a general point about the drafting and the position as it was understood before the judgment of 29 October 2020 in the E.C. and The Irish Times case. This issue has been raised by a number of Deputies, including Deputies Howlin, O'Callaghan and Byrne. Before the E.C. judgment there was a view that the reference to a child in section 252 did not refer to a deceased child. This meant that a perpetrator and a deceased child could be identified but only if such particulars were not likely to lead to the identification of a child witness or a living child victim in the proceedings. The existing section 252 is quite clear that no report may be published that includes any particulars likely to lead to the identification of a child victim or child witness. The Bill as passed by the Seanad therefore restores, if that is the correct word, the law to that position. Subsection (1A) effectively provides that subsection (1) does not apply to a deceased child. However the policy is to ensure that in doing so, it will not be interpreted as an intention to take away the existing protections for a child witness or for a child accused.

There were some issues raised on Second Stage in this House and in the Seanad as to whether the Bill affords flexibility where there is a deceased child victim as well as a living child witness or another child victim in the same proceedings. Deputy O'Callaghan raised concerns that under subsection (2A), the identity of a deceased child could not be published in circumstances where there is a living child witness. This concern was also shared by Senator McDowell. In the light of these concerns there have been further considerations and consultations with the Attorney General and it is intended that an amendment will be brought on Committee Stage revising subsections (2) and (2A) to put beyond any doubt that where there is a deceased child and another child witness to the proceedings, the court may dispense with reporting restrictions, subject to conditions, including publishing the identity of the deceased child, as long as this is in the best interests of the living child victim or witness.

If, as in the majority of such cases, the issue only relates to deceased children, then the legislation operates quite straightforwardly to allow families to grieve, to have their children remembered in public and for perpetrators to be named as appropriate. The trauma that can be caused by unnecessary restrictions in this regard has clearly been articulated by Deputies Murnane O'Connor and Higgins. However, if there are living children who are party to the proceedings and who might be identified, they are entitled to protection and the protections cannot simply be disapplied. In such circumstances it will be a matter for the courts to decide the appropriate balance to be met by considering the best interests of any living child witness or victim. The courts have flexibility to decide what particulars can be revealed and to what extent. The restrictions on identifying a child accused are there for good reasons but they are not absolute and, as I have said, it is a matter for the courts to decide in these difficult cases.

Section 1(2) of the Bill deals with retrospectivity. Provision is made so that the changes effected will apply with immediate effect both to the reporting of old proceedings as well as to new proceedings. This means that the identity of a deceased child that could not be published since the decision of the Court of Appeal in DPP and EC v. 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 also be published once the amended section 252 has been commenced.

Deputies Howlin and Carroll MacNeill referred to those families who do not wish to see media references to their deceased children. Public intrusion on deaths within a family can have a devastating effect on the well-being of such families and they have my greatest sympathy. My officials did look at options to address this but there is no simple answer. The clear majority view is that the automatic default should be that the reporting of the identities of deceased children should be allowed. Even in cases where there is a verdict of not guilty by reason of insanity, where due to mental illness a parent or sibling was involved in killing their child or sibling, not all families or members of such a family will welcome restrictions on reporting. The media's role in reporting on criminal trials is an important part of the constitutional requirement under Article 34.1 of the Constitution that justice be administered in public. It is only in exceptional circumstances, prescribed by law, that there are exceptions to this. The logic behind the Children Act is the protection of the best interests of children who appear in court proceedings. To go outside that parameter and try to take into account the interests of a wider group of children and adults creates significant difficulties. I do not have a solution but the Minister and I have asked our officials to see if it is possible to bring forward a proposal to address this issue. It will not be possible, however, to bring it forward in the context of this Bill. The key issue raised is where there is a verdict of not guilty by reason of insanity in a homicide case and whether it would be possible to have a provision that might allow the DPP to bring forward an application in particular cases where there is only one family involved and it is in the best interest of surviving children to have some reporting restrictions, even where those children were not directly involved in the proceedings. Broadening anonymity protections for witnesses and victims to include other children who are affected by proceedings but are not directly involved in proceedings would set a precedent in relation to other proceedings where children are affected by the publicity in a case but are not directly involved in those proceedings. There are many areas of criminal law where this would also be the case.

That would have broader implications for areas outside the scope of the Children Act and would require more detailed examination from both a policy and a legal perspective.

I thank all the Members for their contributions. This is a delicate matter and I believe we would all agree that there is a degree of urgency in resolving it. I look forward to working with the Members to bring this legislation to a successful conclusion.

Every parent should have a right to openly and publicly speak the name of their child. Sadly, that is not currently the case where their child was killed as a result of a crime. That has understandably caused extreme distress for families and for their communities. What we are doing today with this legislation is restoring the right to these families to be able to speak their child's given name and to be able to honour their memory. Importantly, it also restores the right of the media to openly and fairly report on cases where a child has been killed as a result of a crime, including child murder victims.

I thank the Deputies across the House for their support for this very important and urgent legislation. We are all determined to get it enacted as quickly as possible.

Question put and agreed to.

6:25 pm

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Congratulations to everyone involved.