Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I thank Senator McDowell and the other proposing Senators for bringing this Bill before the Seanad. As we are all aware, and as the Senator and others have clearly explained, the Bill is in response to issues from the recent decision of the Courts in DPP and EC v. The Irish Timesand 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 relation to 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 profound negative impact the ruling is having on grieving parents who are unable to remember their deceased children's names or legacies is very clear to me. Like the Senators here and many others, I want to give power back to those parents so that they can remember their children or their family members in the way that they wish to do so. I have been working with Senator McDowell and Deputy Jim O'Callaghan on this issue, and we agreed that a collaborative approach is the right one to take. Having committed to finding the fastest way to address this issue, Cabinet agreed last week to support the Private Members' Bill introduced by Senator McDowell as the most expeditious way of delivering on this commitment.

To outline the current law, 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. The current section 252(1) states 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 10 his or her identification, shall be published or included in a broadcast.

Section 252(2) does permit a court to lift reporting restrictions if it is satisfied that this would be in the interests of the child.

Previous to the judgment of the Court of Appeal in the EC case, the issue of reporting restrictions in the case of a deceased child victim had not arisen.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 this section as not including a deceased person who was a child at the time of death.”

The main issue to be addressed is to allow the identity of a child who has been unlawfully killed to be published and it would also remove the current difficulties with identifying the person charged in connection with the child's death.

A further issue which has arisen on foot of the ruling relates to cases with respect to persons who were children at the time of the offence but adults when the proceedings were taken against the perpetrators. Mr. Justice Birmingham also added on this point that "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." This issue will also be addressed by way of Government amendment.

Regarding this Bill, the text of subsection (1) is the same as the existing text of section 252, but for the inclusion of the two references to “image”. Subsection (2) is entirely new. The focus of the provision is on the publication of reports, pictures or images identifying the person accused or convicted of homicide offences.

The new subsection (3) is based on the existing subsection (2) of section 252. The current provision permits the court to make an order dispensing with the requirements of subsection (1) where satisfied that it is appropriate to do so in the interests of the child. By contrast, the new subsection requires the court to be satisfied that it is appropriate to do so having regard to the interests of the child and to the public interest, including the protection of children generally.

Subsections (4) to (6), inclusive, reflect the wording of the current subsections (3) to (5), inclusive. The intention of section 3 is to allow the provisions of the new section 252 to apply retrospectively.

I have received Cabinet approval to support this Bill, subject to proposed Government amendments. There are some policy and drafting issues with the Bill which I propose to address by way of Government amendments.

The focus of the Bill is to permit the identification of a person accused or convicted of homicide offences against a child rather than the identification of the child victim. Subsection 2 does not include the offence of dangerous driving causing death or serious bodily harm pursuant to section 53 of the Road Traffic Act 1961 against a child. I will introduce an amendment to address this.

Subsection (2) does not provide for the publication of reports, pictures or images of a deceased child victim in the absence of an order of the court under the new subsection (3). I will introduce a new subsection, by way of amendment, to allow the identity of a child against whom an offence was committed to be published in reporting on such proceedings.

This will also allow reporting where parents wish to speak publicly about their child who has died. This amendment will be subject to the provisions of section 93 which involves restrictions on reports of proceedings in which children are concerned. This means that where an accused is a child, his or her identity will be protected. The amended section will also continue to protect the identity of living child witnesses and victims who are involved in the proceedings.

Even though subsection (3) expands the grounds for lifting the restriction, it is not clear that this would permit the media to report on parents of a murdered child who speak about their bereavement and pay tribute to their child, or on the content of victim impact statements in such circumstances. It would not necessarily allow for the publication of the identity of a deceased child victim, nor would it necessarily protect other child witnesses.

Expanding the grounds for lifting the restriction in this way would provide that a court could make an order permitting the publication of details of a child victim, whether alive or deceased, or details of a child witness, provided that it was both in the interests of the child and in the public interest to do so. It could be difficult to reconcile these interests in a given case.

The details of a deceased child victim could only be published if, and where, an order was made. Accordingly, if an application was not made to the court, the media would not have the right to publish details of the victim. There is a policy issue as to whether newspapers and journalists should be put to the expense of having to apply to court for such an order where no order is sought by a party to the proceedings.

I have outlined that I will bring a separate amendment to allow the identity of a deceased child against whom an offence was committed to be published in reporting on such proceedings. This will apply automatically and will not require an order of the court. It is therefore not necessary to expand the grounds in subsection (3) for the lifting of restrictions.I will, however, bring forward an amendment to substitute "best interests of the child" for "interests of the child". The concept of the best interests of the child is an important principle under the UN Convention on the Rights of the Child and a well established principle in Irish law and policy. This key principle is central to the national policy framework for children and young people, or the BOBF framework. It is increasingly incorporated into new legislation affecting children and increasingly referred to in case law since the constitutional amendment on children.

A further issue which many Senators have mentioned and which has arisen on foot of the ruling concerns cases in respect of persons who were children at the time of the offence but adults when the proceedings were taken against the perpetrators. I will bring forward an amendment to address this issue insofar as the recent judgment has affected it. However, it is not the purpose of the Bill to stray outside the issue of child protection. The protection of adult victims and the lifting of that protection are a separate issue. There was a woman who spoke on "Prime Time", I think, last week who could not name herself. We have all heard of many examples of victims of abuse who wish to name themselves, who are now adults and who cannot do so. We need to address that where it is their wish to waive their right to anonymity.

I will also bring forward an amendment which would allow the court, of its own motion or on the application of the DPP or another party to proceedings, to make a direction restricting any publication that is likely to lead to the identification of a deceased child or a person who was a child at the time the offence was committed but who is an adult at the time of proceedings. In this example the person may have been a child but a few weeks later or less than a year later may have turned 18 but there is still perhaps a need for his or her identity to be restricted. Such examples arise in other cases in the same way that the DPP can apply for that restriction not to be lifted where there is another child, perhaps a sibling, who may be hurt by the naming of his or her sibling.

I will bring forward an amendment to ensure that the new section 252 will apply in respect of proceedings which took place before the enactment of this Act and proceedings commenced after this Act. The wording of the section as drafted requires amending to ensure we do not inadvertently undermine protections for children who are deceased. Senator McDowell mentioned one case only in the past two weeks which this ruling has already impacted. We need to make sure that this legislation will apply to those families.

Senators Warfield and Bacik both mentioned supporting victims. This is an area to which I am absolutely committed. Last week we updated the victims charter and launched a new online platform not only to ensure that victims know the supports that are available to them but also to give them a clear route through the criminal justice system, which is often difficult and complex. There are also the different organisations that support victims of crime. I am absolutely committed to making sure they are fully funded in order that they can plan for multiple years ahead. That work is ongoing following on from the publication of the O'Malley report and the implementation of Supporting a Victim's Journey.

We will go into many of the amendments to the Bill in greater detail as we go through the Stages. I thank Senator McDowell for introducing the Bill and for his significant engagement on this issue. I thank Deputy Jim O'Callaghan also for his engagement on the issue. He published a Bill just in the past week on the very same issue with Deputy Murnane O'Connor. The collective and collaborative approach in which we are dealing with this is the best way to proceed. It is about doing this as quickly as possible and making sure we get it right and that the legislation is correct. I have no doubt but that as we pass through the various Stages, Senator McDowell will have the full support of all other Senators and Deputies to make sure that the parents on whose behalf we are all speaking will very soon be able to speak about and name their children publicly and remember them in the way that they want to do so and should be able to do so. Again, I have no doubt but that we will work together to bring this legislation into effect as quickly as possible.