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

First, I thank Senator McDowell and other proposing Senators for bringing this Bill before the Seanad, and I thank all Senators who have engaged with the Bill and contributed to the discussion in the House. Having had a debate on the Bill and given further consideration to issues raised in both this House and the Dáil, the Bill is returning to this House with some Government amendments that were introduced on Committee Stage in the Dáil and passed through all Stages.

Before turning to these amendments, it might be useful to revisit briefly the purpose of the Bill, although I realise Members know and understand it. Before the DPP v. EC case in October 2020, there was a view that section 252 of the Children Act 2001 did not prevent the publication or broadcasting of material that might identify a deceased child unless it would lead to identifying a living child who was also a victim or a child who was a witness in criminal proceedings. Even in that instance, there were situations where that could be overruled. The purpose of this Bill is to restore that position. The Bill does this by disapplying or removing the restrictions on proceedings that relate to the death of a child, subject to the exceptions I have mentioned. I will give three scenarios outlining the effect of the Bill.The first is that if there is a deceased child and no other child involved, then there are no restrictions on the identifying the deceased child. Second, if there is another living child, who is perhaps an accused or a witness in the proceedings, then there are no restrictions unless naming the deceased child could identify the living child. Third, and very importantly, after that, if naming the deceased child could identify the living child, accused or witness, then the court must decide whether the deceased child can be named and subject to what conditions. It is not an absolute. If naming a deceased child could potentially identify a living child, witness or victim, there will be a provision allowing for the court to decide whether it is in the best interests of that child.

The best interests principle does not necessarily usurp all of other interests in a case and will not always be the single overriding interest. There may be other competing interests at stake and the court will consider these. However, in accordance with the principle, the interests of the child must be the subject of active consideration.

The Bill is only concerned with section 252 of the Children Act. Section 93 exists separately and we are not trying to amend it. Section 93 relates to an accused child. There are already provisions under the Children Act whereby the first response is that one does not name the accused child. However, there can again be certain circumstances, such as public interest or otherwise, where that can be allowed. We are not changing or amending that. It will simply still apply.

Turning specifically to the amendments made in the Dáil, the first two relate to subsections (1A) and (1B). They are technical and seek to make it clear beyond doubt that any restrictions on publication only relate to the protection of the interests of living children.

The purpose of the third amendment is to put beyond any reasonable doubt queries that have been raised by Deputies and Senators who were specifically concerned that subsection (2A), as proposed in the Bill, might be misinterpreted or cause confusion as to the flexibility that a court has where there is a deceased child victim, and another child victim or child witness to the proceedings. I asked the Attorney General to look at this again, and to reflect on the wording and the drafting. It has been recommended that we make these changes to clarify the matter. The amendment provides for the existing subsection (2) and the proposed subsection (2A) to be replaced by a new subsection (2)(a) and (b).

Subsection (2)(a) deals with proceedings relating to the death of a child. The word "shall" is used, imposing an obligation on the court to dispense with any restrictions relating to a deceased child unless the interests of a living child who is a witness in the proceedings or an accused will be affected. The court then has to consider the matter and, for example, assess in the case of a child witness whether there are conditions that could be imposed when naming the deceased child to protect the best interests of a living child witness. Subsection (2)(b) deals with proceedings where there is no deceased child. It is left to the court to decide whether it is in the best interests of a child to allow publication or broadcasting of material that might identify that child victim or witness. If there are other child victims or witnesses involved, the court must take into account the best interests of those children.

Once again, I thank Senator McDowell in particular for his considered contributions and collaboration on this Bill. I am satisfied that the amendments clarify the concerns raised and I am hopeful that we can now finalise the legislation in order that it can be commenced without delay.

Many of us have been contacted in recent months by parents who wanted to publicly remember their children but who, unfortunately, have been prevented from doing so. Every parent should be allowed and able to speak about their child publicly in order to secure the child's legacy. We made a commitment to those parents that we would move quickly to solve this problem. I am glad that, working together, we have all kept to that commitment.

The Bill will now go to the President, with the support of those in the House, for his signature. I will not delay in signing a commencement order once that is done. The law can be changed on 3 May at the latest and the parents affected will thereafter be able to share their precious memories of their children once again.