Seanad debates

Friday, 5 March 2021

Children (Amendment) Bill 2020: Report and Final Stages

 

10:30 am

Photo of Michael McDowellMichael McDowell (Independent) | Oireachtas source

Since the last occasion on which we discussed the Bill, which was Monday, something happened about which the Minister should be aware. I was contacted by a journalist who was going to do a piece on the legislation and wanted to discuss the matter with me. This was an experienced and level-headed journalist who had been looking at the Minister's amendments and could not understand them at all. The journalist asked whether I could explain what was and was not now permitted.That experience reinforced my belief that the legislation, as amended in committee in this House, is unintelligible to ordinary persons, and that they would have to have two documents, or perhaps more, in front of them to understand it. They would have to have the text of section 252 of the Children Act 2001 as it originally was, as well as that of the amending Bill.

On the previous occasion, we discussed the desirability of having a text that will be easily understood by the Judiciary, practitioners, relatives of injured and deceased parties, witnesses and members of the media so as to have a clear statement of precisely what the law is in respect of the reportage of proceedings involving children generally, and in particular of criminal proceedings where a child has been the subject of homicide. It is my strong conviction that this House has a duty when it is passing legislation to make the law clear and not obscure. It is also my strong conviction that, unless it is unavoidable and unless there is some obvious reason it should not be done, the practice should be to set out, in respect of an important section of this kind, what the law is in an intelligible, accessible and legible format.

On the previous occasion, I mentioned the possibility that a perfect stranger could enter a home and kill a child and that a child witness might be the sole witness for the prosecution as to the facts. The identity of the child witness might be gleaned by the fact that, say, the children shared a bedroom or because the circumstances were that their relationship was clear. We should not enact a law that prohibits the identification of the deceased child on the basis that a child witness might, in a derivative way, be identified.

I have been thinking about the point I made in respect of that on the previous occasion. It seems to me that section 252(1), as it is supposed to be amended here, will set out a general principle. My amendment provides that:

Subject to this section, 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.

The proposal is to introduce, on the Minister's text, a new subsection (1A) providing:

Subsection (1) shall not apply to the publication or inclusion in a broadcast of a report or picture referred to in paragraph (a) or (b) of that subsection relating to a child where— (a) the proceedings concerned relate to the death of the child, and

(b) such publication or inclusion in a broadcast would not result in a contravention of—
(i) that subsection in so far as it relates to another child, or

(ii) section 93.

Subsection (5) of the amendment I have tabled states that "the court may dispense to any specified extent with the requirements of subsection (1) if it is satisfied that it is appropriate to do so in the best interests of the child." However, that right is circumscribed by subsection (2A) in the Minister's text which provides that:

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 result in the contravention of (a) that subsection in so far as it relates to another child, or

(b) section 93.

It seems to me that the cumulative effect of that is that we are actually putting into statute law that if a person goes into a house and murders a child and the main witness against that person is another child of 15 or 16, for example, the child who is murdered cannot be named in circumstances which I am contemplating. I may be wrong on that. If I am, I would like the Minister to explain why that is the case.

Subsection (1) seems to me to be intended to be of general application. Subsection (1A) as proposed by the Minister seems to be a derogation from subsection (1). A later subsection which allows the court to dispense to any specified extent with the requirement of subsection (1) if it is satisfied that it is appropriate to do so in the best interest of the child seems to me to have the effect of prohibiting dispensation where another child would be identified. I may be wrong on that. I would be interested to hear the Minister on it.

In any event, it seems to me that the language or the terms of the amendment I have proposed to the House are intelligible to any ordinary journalist, witness, legal practitioner or judge in the District Court or wherever else. To give an example, if a person is charged with the murder of a child and brought before the District Court, the names of witnesses are not mentioned at that stage.Therefore, if Joe Bloggs is charged at Kilmainham District Court, or wherever it is, with the murder of John Smith, a child, it seems to be legitimate to say that as it is a fair report. The problem arises at a later stage if the trial takes place and the identity of a witness becomes an issue. A different prohibition is engaged, which is that the possible identification of the witness child may prevent the naming of the victim. That is the point I am making.

I ask the Minister to consider the points I am making. Is she confident and will she explain why, if it is the case, we are not creating another problem of the kind found by the Court of Appeal in respect of future cases where the particular complexity I speak of might arise?

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