Friday, 5 March 2021
Children (Amendment) Bill 2020: Report and Final Stages
I welcome the Minister for Justice, Deputy McEntee, and colleagues. Before we commence, I remind Members that a Senator may speak only once to an amendment on Report Stage except its proposer, who may reply to the discussion on the amendment, and each non-Government amendment must be seconded.
I move amendment No. 1:
In page 3, to delete lines 10 to 31, and in page 4, to delete lines 1 to 23 and substitute the following:
“Amendment of Children Act 2001 1. (1) The Children Act 2001 is amended by the substitution of the following for section 252:“Anonymity of child in court proceedings(2) The amendment effected by subsection (1) shall, on and from the date on which this section comes into operation, apply to the publication or inclusion in a broadcast of a report or picture to which section 252(1) of the Children Act 2001 applies, irrespective of whether the proceedings referred to in that subsection were commenced before that date.”.252. (1) 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, andshall be published or included in a broadcast.
(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,
(2) Subsection (1) shall not apply to the publication or inclusion in a broadcast or report 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(3) 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 the person against whom the offence concerned is alleged to have been committed where—
(b) such publication or inclusion would not result in a contravention of—(i) that subsection in so far as it related to another child, or
(ii) section 93.(a) the person has attained the age of 18 years on or before the date on which the proceedings commence, and(4) Subsection (3) is without prejudice to any other enactment or rule of law applicable to proceedings referred to in subsection (1) that operates to prohibit the publication or inclusion in a broadcast of a report or picture referred to in paragraph (a) or (b) of that subsection relating to any person.
(b) such publication or inclusion in a broadcast of the report or picture would not result in a contravention of—(i) that subsection in so far as it relates to another person, who is a child, or
(ii) section 93.
(5) Subject to subsection (6), 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.
(6) 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(7) Where the court dispenses with the requirements of subsection (1), the court shall explain in open court why it is satisfied it should do so.
(b) section 93.
(8) Subsections (3) to (6) of section 51 shall apply, with necessary modifications, for the purposes of this section.
(9) Nothing in this section shall affect the law as to contempt of court.”.
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?
I welcome the Minister to the House. I am glad to second the Senator's proposed amendment and echo his comments about the need for coherence in drafting and making legislation, particularly criminal legislation, accessible. I know that is the spirit in which he brings this amendment.
I have given much consideration to this since Monday as the debate in the House was very good and provided much food for thought. I considered a few aspects.
In journalism we are dealing with professionals who have come through college, in the main, and been taught about defamation and legal limitations in the practice of their art and skill. This will form part of that process and it will be a significant event in halting the ability of journalists to name victims of crime, including the ultimate horrific crime of homicide. In that regard I have full faith in their training and the fact that the Law Reform Commission has published consolidated documentation on the legislation. Anybody bound by law in the practice of the profession generally has an awareness of that legislation. We would not be dealing with Joe Smith on the street but rather people who in the very act of carrying out their job will see legal implications. That will happen and in that way we are dealing with the same text, albeit laid out with different numbering. I support the Minister's resistance in this regard as the amendments are clearly inserted where they should be. Any other text or issuance from the Departments dealing with children or justice matters does not have to be amended as the reference numbers will be the same. There is coherence.
I have gone back on forth on the provisions in subsections 2 and 2A and there is an entitlement of incremental dispensing of this prohibition.That is qualified by subsection 2A but not prohibitively so. As long as the judge gives his or her determination in the public court on why he or she has made the decision he or she has made - because there is a further section which obliges that - then it can be incremental. It can be to limit the naming of a child witness, while still permitting the naming of the child victim or victims. That is coherently found and contained within section 2 of the Act and within the Government's amendment to it. This will be all right because it makes sense and there is a proper qualification in there that I am comfortable with.
I thank all of the Senators for their contributions, particularly Senator McDowell. I have reflected on the points from last week and I appreciate the spirit of co-operation there has been. Senator McDowell's amendment has not been put forward to change policy or the context but to change the form. I know there are merits to this approach and it is not that we just go with what the norm is because that is the way it has always been done and therefore that is the way it should be done in the future. There are a number of disadvantages in this instance, however, to changing the format.
As Senator Seery Kearney has outlined, we are dealing with the section that should be known by those who are mostly affected by it. The changes we are talking about are in reference to the recent judgment of Mr. Justice Birmingham. The approach we have adopted on Committee Stage clearly shows what changes are being made to section 252. That is what people want to know. They want to know how we will restore the law to what people thought it was before the last ruling. Our amendment is clear. People can look at it and know that what we are amending will bring about the changes we have set out, namely that parents can name their children and that anybody who is now an adult who wishes to name himself or herself, having gone through a process as a child, can do so. This also applies retrospectively.
I mention the fact that Senator McDowell's amendments renumber key subsections so that there is no correlation between them. That will make it more difficult for previous judgments, academic texts and commentary to follow those subsections. For example, subsection 2 would become subsection 5. It is important that we keep that correlation in place. The Office of Parliamentary Counsel is responsible for drafting the legislation and ensuring consistency. It is important that where possible and where it is the best approach to do so, we keep that consistency. As I have said, it should not be the case that because we have always done something a particular way that this is the way it needs to be done in the future. However, for the reasons I have outlined, in this instance it is appropriate to follow that route.
It has been mentioned that the Law Reform Commission prepares a consolidated version of Acts, and will do so for this Act. Once this Act is hopefully passed in short order, that will bring all of this together and it will be clear and understandable in that format. This consolidated text will be available to everybody, including to journalists in particular, in due course.
Subsection 2A, which is amending subsection (2), is being inserted to ensure a court will not dispense with the requirements of subsection (1) without considering the interests of the other child who perhaps is a witness. For the example Senator McDowell has outlined, when a child is in a bedroom with another child who is murdered, it does not apply. Subsection 2A does not apply where there is only one child and where that child is deceased. However, if there is another child present, the court has to look at the possible negative impacts or consequences it might have. It does not restrict the court and there is flexibility to be able to name one child and not another. That is how it is set out in subsection 2A. It will not apply if the only child involved is deceased or if there is only one living child involved it will only apply when two or more children are involved. If the application is made to dispense with the application of subsection (1) with respect to one child, the court has to consider how this will impact on the other child but it has the flexibility to do so. I reassure the Senator and the House that this flexibility is there and that it is not just the best interests of the child that have to be taken into account but other circumstances as well.I hope that clarifies matters.
I believe the Minister is now saying that the scenario I mentioned is incorrect. If I understand her, she is saying that if a 16-year-old child, for instance, is the only witness to the murder of a 12-year-old child, nothing can be published in the court report identifying the victim, insofar as the victim's identity would tend to identify the witness' identity. If that is the law towards which we are going, it is a profound mistake. There should be flexibility. It is wrong for the parents of a deceased child to be in a position where, because one of their other children was a witness in the case, the identity of their deceased child cannot be made public. It certainly was not my intention or Deputy O'Callaghan's intention, when we tabled proposals to reverse the Court of Appeals decision, to drive the law down that particular cul-de-sac.
I listened to what Senator Seery Kearney said. It is all very well to say that journalists are well trained. However, an already-qualified journalist who was trying to report on this section could not make head nor tail of it. I am just saying that as a matter of fact. They told me that they could not make head nor tail of what had been decided the other day in Dáil Éireann. I mentioned the categories of practitioners including judges, witnesses, family members and journalists. Now we also have another bracket of people, which is those who comment on trials on social media. They do not get training about what the law means but they are entitled to find it out. If they are presumed to know what the criminal law of the State is, they are presumably entitled to find it out in some intelligible form. They should not have to do a diploma or degree in law to work out whether a comment they make expressing sympathy for a witness who is a sibling of the deceased would contravene the law. It is not enough just to walk away from this issue and say that journalists are fully trained on the matter. Other people are entitled to know what the law is, particularly people who might make a public comment on it, such as politicians who are asked to comment on the outcome of a case. People commenting on social media are also entitled to have a clear law.
The Minister did not say that there is anything wrong or risky about the amendment Senators Craughwell and Boyhan and I have put forward, or that there would be any unforeseen consequence to adopting it. It has not been suggested that there is a problem with it. The Minister said there might be a problem in that somebody writing an article about the Court of Appeals judgment might find it difficult to explain to somebody reading a book what the new section actually meant, but that does not really stand up. The priority here is to have a law that is intelligible to most people, not only to people who read legal textbooks. I still believe my amendment is appropriate.
I will say one last thing.Insofar as the phraseology in the amendments introduced by the Minister have the effect that I have mentioned, I want to say it is not my responsibility that they have that consequence. We have discussed it here and have gone over it again and again. Any law that we pass will be interpreted in accordance with its ordinary and natural meaning. The scenario I mentioned either is or is not correct, but I would have thought, as Senator Higgins said on the last occasion, that some kind of flexibility mechanism would have been appropriate to deal with the particular circumstances to which I adverted earlier.
I reassure the Senator there is flexibility. While I have said that subsection (a) does not apply where the child is deceased or where there is only one living child involved, a court may still apply a flexible approach where there is only one child living and it needs to give consideration to the impact on that child if their sibling is deceased. That flexibility remains within the legislation. It does not mean that people automatically cannot name the sibling because of the deceased child. Subsection 2A essentially provides that where there are two or more living children, it is not possible to dispense with subsection 1 without taking into account all the circumstances. That does not mean it does not apply where there is only one living child. That flexibility is still there. I assure the Senator that we are not introducing legislation to allow for that situation. I fully appreciate where the Senator is coming from. If parents want to be able to name their child where it may not have an implication on the living child, I do not want to prevent them from doing that. I do not want that to happen. The legislation is clear that will not be the case.