Michael McDowell (Independent) | Oireachtas source

I thank the Minister for her kind words. I want to express my happiness that the legislative process has addressed the difficulties that arose from the interpretation by the Court of Appeal of the Children Act 2001 and, in particular, section 252. The Court of Appeal invited the Oireachtas to look at this issue if it was unhappy with the outcome of their decision. Everybody wanted to reverse to some extent the implications of that decision. Some people may have thought that the decision itself was a bombshell.It seems to have been correct technically so this shows it is important that when we legislate in this House, we look very carefully at what we are doing. It was not so much a bombshell as an unexploded bomb. The problem was that it had to be dismantled in a way that preserved other very important and vital safeguards. I wish to make two points in respect of that. Supposing an intruder broke into a house, murdered one child and raped another, which, happily, has never happened, it might well be the case in that if one named the victim of the murder in court proceedings, one might end up identifying what happened to another child in the house. This strange situation could occur where the interests of two different children who were part of a horrific set of circumstances may have to be balanced by the court in a way that is not immediately obvious if we just look at this matter on the basis of first principles. I welcome the fact flexibility has been introduced here and that the court must balance a number of rights and conflicting interests in a situation such as that. There are other much more mundane matters where child victims of other crimes are covered by section 252. The rights of child witnesses who testify in such cases must be protected as well. Changing the law was not as simple as was thought at the very beginning. I acknowledge the efforts of the Department of Justice and the Office of the Attorney General to get the balance right.

The law in section 252 is fairly narrow. It talks about reports of court proceedings not being broadcast in such a way as to identify individuals. It should be borne in mind that it does not prevent the parent of a child who was murdered from saying afterwards, "My child was murdered". The law is strictly concerned with reports of court proceedings. While the media and people are constrained from saying things about it, in the end, the law does not say that I can in any circumstance be inhibited from saying that my child was murdered if that is the case, which is an important point, nor, on the face of it, does it prevent me from ever saying who did it as long as I am not purporting to report a court case. I am just making the point that people interpret our law in a way that is perhaps slightly overly strict. The James Bulger case in England preserved anonymity for the perpetrators of that terrible crime into their adulthood but section 252 is not that rigid. It does not say that somebody can be screened for the rest of his or her life from the fact that he or she murdered somebody. All it says is that reports of particular court proceedings cannot be published in a particular way. I say that because I think it is important that whatever decisions a court may make about the reportage of an individual case, it is not the case that in any circumstance, the parent of a child could ever be afterwards denied the right to say his or her child was murdered or name the child in that context. This simply will not be the law in the future.

I will finish by thanking the Minister, Deputy Jim O'Callaghan, the Office of the Attorney General and the Department of Justice for the very careful and reasonable way we have tried to craft this legislation to balance all those rights. I hope what we are doing will in early May, as the Minister said, lift what was an unjust situation from the shoulders of bereaved families. We had the odd situation where the victim of a crime in East Wall in Dublin was named but as soon as court proceedings started, the cloak of anonymity seemed to come down on that situation and the media found itself in the peculiar position where it could not identify the child about whom it was speaking two weeks earlier as a child affected by the particular crime.I thank the Minister and express my appreciation that the legislative process has worked, slowly, perhaps, but very carefully. This is because we were dealing with one unintended consequence of legislation from 20 years ago, while being careful to ensure that we did not produce further unintended consequences in a rush to rebalance the situation.