Private Members Bill – Children Amendment Bill
2nd Stage Speech – Dáil Eireann
Speech by Minister for Justice Helen McEntee
I would like to thank Senator McDowell and the other proposing Senators for bringing this Bill before the Seanad. It has now passed all stages in the Seanad with some Government amendments and with Government support. I would like also to acknowledge at the outset the Private Member’s Bill proposed by Deputy O’Callaghan which addresses the same issue and to thank him and Senator McDowell for their cooperation.
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 to support this Private Members Bill, with Government amendments, 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 position appears anomalous given the fact that the identity of a child murder victim can be and is reported at the time of the tragic occurrence, cannot be published once proceedings for an offence against a child homicide victim commence.
Nonetheless, and as 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.”
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.”
Provisions of the Bill
Turning now to the provisions of the Bill itself.
Instead of replacing section 252, I will be amending the section to address the key issue which is to ensure that parents will be free to refer to the names of their deceased children who have been the victims of crimes in media reporting. This will also remove the restriction of the reporting of the identity of accused or convicted persons in such cases where there were restrictions because it might lead to the identification of the deceased child victim.
However this will not operate to undermine the provisions of section 252 if another child witness or victim is in need of its protection nor will it undermine the provisions of section 93 of the Act which protects the identity of a child who is the accused or convicted person.
In addition, the Bill also addresses the restrictions that apply the identification of a person who was a child at the time of the offence but an adult at the time of the proceedings
- Subsection 1(a) amends the existing section 252 (1) by substituting “subject to this section” for “subject to subsection (2). The purpose of this amendment is to ensure that this section is subject to subsections (1A), (1B) and (1C) as well as subsection (2).
- Subsection 1(b) inserts three new subsections after subsections 252(1): subsections (1A), (1B) and (1C).
- Section (1A) dis-applies the prohibition on publication or broadcast in subsection (1) where the proceedings concern the death of a child. This section dis-applies subsection (1) automatically which means that the identity of a child victim who has died can be published without the need for a court order. There are two exceptions to this. Firstly, where this would lead to the identity of another child who is a witness or another child who is a victim of an offence to which the proceedings relate. Secondly, where this would lead to the identity of a child accused in relation to the proceedings, contrary to section 93 of the Act. Section 93 protects the identity of child offenders or children accused of a criminal offence.
I would like to clarify how this will operate in practice, by way of examples.
Scenario 1: Where there is a deceased child and no other child witness. Subsection (1A) operates to allow the identity of child and perpetrator to be reported without any court involvement.
Scenario 2: Where there is a deceased child and a child witness. If identifying deceased child or perpetrator is likely to identify child witness (e.g a sibling), the default situation under subsection (1A) is that identity of deceased child should not be reported unless court decides otherwise. However, Section 252(2) would apply in this situation, where the court can dispense with the protections, to any specified extent, in the best interests of the child. The Court has flexibility under this section. For example, it could decide that the deceased child could be named, which would also allow the accused to be named, but there should be no reporting of family link with the witness, or it could decide the best interest of the child witness does not require anonymity for the deceased child and witness.
Scenario 3: Where there is a deceased child, a child witness and the accused is a child. Subsection (2A) applies so that if considering dispensing with the protection of subsection (1) for the child witness, the court must also consider the implications for the child accused. If the Court decides that identifying the child witness is likely to identify the accused child and that is not appropriate, then the child witness should not be identified. However, it should be noted that the protection of anonymity afforded to a child accused is not absolute – section 93 does allow for those protections to be lifted by a court in some circumstances.
- Subsection (1B) dis-applies the prohibition on publication in subsection (1) where the child against whom the offence is alleged to have been committed has attained the age of 18 at the time the proceedings have commenced. The protections will automatically dis-apply in such circumstances. There are two exceptions to this. Firstly, where this would lead to the identity of child who is a witness or another victim in the proceedings who remains a child. Secondly, where this would lead to the identity of a child accused in relation to the proceedings, contrary to section 93 of the Act. Section 93 protects the identity of child offenders or children accused of a criminal offence.
- Subsection 1(b) also inserts subsection (1C) after section (1B). Subsection (1C) specifies that subsection (1B) does not affect provisions in other pieces of legislation which preserve the anonymity of a victim.
- Section 1(c )(i) of the Bill amends subsection 252(2) by substituting “subject to subsection (2A), the court” for “The court”. Section 2A relates to matters the court must consider if dispensing with subsection (1) restrictions.
A point of clarity in relation to the new subsection 2A. The reason this subsection was inserted is to deal with situations where the court must consider the situation of more than one child witness or victim to the proceedings. This subsection ensures that, when considering whether to dispense with restrictions in relation to a child witness or victim, a court will not dispense with the requirements of subsection (1) where this would lead to the identity of another child who is also a witness or victim of an offence to which the proceedings relate. For example, where there is more than one child witness or victim in a case, the court must consider the best interests of each individual child witness or victim when deciding whether to lift restrictions and can consider the extent to which restrictions should be lifted in relation to each child.
Similarly, the court must also consider whether dispensing with restrictions in relation to a child witness or victim would lead to the identity of a child accused in relation to the proceedings, contrary to section 93 of the Act.
- Subsection 1(c)(ii) amends subsection 252 by substituting “best interest of the child” for “interests of the child”.
The best interests of the child principle is increasingly incorporated into new policy and legislation affecting children and is therefore increasingly applied by the courts. The best interests of the child will not always be the single overriding interest – there may be other competing interests at stake, such as other children, the parents, or the public interest. However, in accordance with the principle, the child’s interests must be the subject of active consideration and the court needs to demonstrate that the child’s interests have been explored and taken into account as a primary consideration.
- Section 1 (2) of the Bill makes provision so that the changes effected will apply with immediate effect both to the reporting of old proceedings as well as to new proceedings.
This means that the identity of a deceased child which could not be published since the decision of the Court of Appeal in DPP and E.C. v. Irish Times and others can be published once the amended section 252 has been commenced. It also follows that the identity of an adult accused or convicted in relation to such a death can also be published once the amended section 252 has been commenced.
- Subsection 2(1) of the Bill contains the short title of the Bill
- Subsection 2(2) contains the collective citation.
- Subsection 2(3) in relation to the commencement of the Act. The Act will be commenced by way of Statutory Order.
This is the most efficient way to bring the Act into effect. Section 252 creates a criminal offence. There is therefore a need that people, including the media, courts and Director of Prosecutions know in advance the date the new provisions will come into force. This means that there will be certainty about the date of commencement and the public can be informed in advance of the date of commencement.
Article 25.2.1 of the Constitution provides for a Bill to be signed not earlier than 5 days and not later than the 7th day after it has been presented to the President. We will not know in advance which day the President will sign the Bill and there can be a short delay before a new Act is promulgated and becomes a matter of public record. My officials will be advised as soon as the President has signed the Bill and I can sign the commencement order without delay and it will be promulgated by my Department and be a matter of public record as a Statutory Instrument.
I would like to thank Senator McDowell for introducing this Bill and for his engagement on this issue both inside and outside the Seanad. I would also like to thank Deputy O’Callaghan for his engagement on the issue. The Deputy has published a private members Bill in the Dáil recently on this issue with Deputy Jennifer Murnane and this was taken into account in our considerations.
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.