Private Members Bill – Children (Amendment) Bill
2nd Stage Speech – Seanad Eireann
Monday 15th of February 2021
Speech by Minister for Justice Helen McEntee
Check against Delivery
I would like to thank Senator McDowell and the other proposing Senators for bringing this Bill before the Seanad.
This Bill is in response to issues from the recent decision of the courts in DPP and E.C V. Irish Times and 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 profoundly negative impact the ruling is having on grieving parents who are unable to remember their deceased children’s names or legacies in public is very clear to me. I have been working with Senator McDowell and Deputy Jim O’Callaghan on this issue and we all agree that a collaborative approach is the right one to take on this. Having committed to finding the fastest way to address this issue, Cabinet agreed last week to support this Private Members Bill as the most expeditious way of delivering on this commitment.
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 to his or her identification, shall be published or included in a broadcast..”
Section 252(2) does permit a court to lift reporting restrictions if satisfied that this would be in the interests of the child. Previous to the judgment of the Court of Appeal in the E.C case, the issue of reporting restrictions in the case of a deceased child victims had not arisen.
The judgment of Justice Birmingham outlines this is the natural consequence of a perfectly plain reading and interpretation of section 252. 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, which would also remove the current difficulties with identifying the person charged in connection with their death.
A further issue which has arisen on foot of the ruling is in relation 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: “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.
Turning now to the provisions of the 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), (5) and (6) reflect the wording of the current subsections (3), (4) and (5).
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, which I will set out.
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, their 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) of the Bill 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 can 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.
Furthermore, the details of a deceased child victim could only be published if and where an order was made. Therefore, 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 an amendment to substitute “best interests of the child rather than “interests of the child”.
The concept of best interests of the child is an important principle under the UN Convention on the Rights of the Child and is a well-established principle in Irish law and policy. This key principle is central to the National Policy Framework for Children and Young People (BOBF Framework). It is increasingly incorporated into new legislation affecting children and is increasingly referred to in case law since the Constitutional Amendment on Children.
Amendment - Identity of adult victim who was a child at the time of offence
A further issue which has arisen on foot of the ruling is in relation 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. I will bring an amendment to address this issue in so far as the recent judgment has affected it . However, it is not the purpose of this Bill to stray outside the issue of child protection. The protection of adult victims and lifting of that protection is a separate issue.
Amendment - Power of the Court to restrict publication in particular circumstances.
I will also bring an amendment which allows the court, of its own motion or on the application of the DPP or another party to the proceedings to make a direction restricting the publication that are 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 is an adult at the time of the proceedings. This may be necessary in the particular circumstances of a case.
Amendment - Section 3
I will bring 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 that we do not inadvertently undermine protections for children who are deceased .
I would like to thank Senator McDowell for introducing this Bill and for his engagement on this issue. I would also like to thank Deputy O’Callaghan for his engagement on the issue. I am aware that the Deputy has also published a private members bill in the Dáil last week with Deputy Jennifer Murnane. I am sure members across both houses of the Oireachtas are as determined as I am to amend this legislation to ensure that parents can speak publicly in the media to honour the memory of their child in such tragic circumstances. I know there have been a number of families affected by the Court of Appeal. I hope that that we can work together to bring this legislation to a successful conclusion.