LAST UPDATE | 2 Feb 2021

THE FULL RAMIFICATIONS of a court decision to ban the naming of child murder victims are becoming clear following recent sentence hearings, fresh tragedies and family objections.

Although restrictions around reporting on court cases in children already existed, in late 2020 a new restriction had a major impact on how the murders of children can be reported.

The emergence of this restriction has had an impact on the reporting of several murder trials in recent months, and led one mother yesterday to appeal for a change to the law, saying that not being able to name her son made it feel like he ‘didn’t exist’.

The latest case and a plea from this mother spurred the Justice Minister Helen McEntee to confirm she intends on dealing with the issue.

Speaking on RTÉ’s Prime Time this evening, Minister McEntee said the issue will be resolved “in a matter of weeks”.

McEntee said she will bring a memo to Cabinet next week, and in two weeks she will introduce Senator Michael McDowell’s bill into the Seanad, before it goes to the committee stage. 

In early November, Senator McDowell and Fianna Fáil TD Jim O’Callaghan published a draft bill to amend the 2001 act. McEntee said the bill will require government amendments as there are a number of issues that need to be addressed. 

“I have no doubt that I will have the full support of committee members from all parties to progress this. There will have to be government amendments because there are a number of issues we have to address here and we don’t want any unintended consequences,” said McEntee. 

“I’m absolutely determined that no parents should be in a situation where they cannot remember their child, where they cannot do it in the way that they want to.

“I’m going to say in a matter of weeks that we should be able to have this resolved.” 

The background

On 29 October 2019, Judge George Birmingham delivered a judgment in the Court of Appeal that gave a strict interpretation of certain reporting restrictions set down in the Children Act 2001.

Specifically, Birmingham’s ruling related to section 252 of the Act, which created mandatory reporting restrictions where the trial relates to “an offence against a child or where a child is a witness in any such proceedings”.

In such circumstances, reporters are automatically prohibited from identifying “the name, address or school of the child” or any detail that might identify them.

But in late October of last year, Birmingham found that Section 252′s reporting restrictions also apply in circumstances where the child is deceased or has turned 18.

He was delivering judgment in the Court of Appeal in a case taken by a number of media outlets. The case related to a woman, Ms C, who accepted responsibility for murdering her three-year-old daughter but pleaded not guilty by way of insanity. Her trial began in October 2019.

On the same day that the jury was empanelled, the Director of Public Prosecutions (DPP) asked the court to prohibit the media from naming the deceased child. The DPP made the case that because the victim was a child, their identity was covered by the mandatory, automatic restrictions as provided for in section 252 of the 2001 act.

The judge in the case agreed and granted an order restricting the publication of the deceased child’s name. 

A number of media outlets subsequently joined together and made an application to the High Court to have the restrictions lifted, arguing that Section 252 of the act only relates to circumstances where the child is still alive.

But that argument failed in front of Judge Carmel Stewart, who said the wording in the statute was clear.

The media outlets then appealed that decision to the Court of Appeal, where Judge Birmingham delivered his written judgment on 29 October.

Birmingham ultimately found in favour of the DPP.  

This means that in circumstances where, for example, an adult is charged with the murder of a child, the media would not be able to identify the victim. The victims can be identified up until the DPP files charges, at which point the restrictions are triggered.

This has had an impact on a number of cases. 

Murder cases

On Monday 1 February, a 28-year-old man was found guilty of murdering his 11-year-old nephew in the south-west of the country on November 3, 2019.

Speaking outside the court, the boy’s mother called on the Minister for Justice Helen McEntee to change Section 252 of the Children Act so that her son can be identified.

She said:

“I deserve to be able to leave this court today and tell the world about my wonderful son. The kind, caring, loving, talented little boy that my son is, his name and his legacy deserve to be out there for all the world to see and hear. I do not want my boy to only be remembered for how his life was ended.”

Of the restrictions, she said: “I don’t think there is any benefit to [my son] from it, I think it is more beneficial to the [accused]. We are not allowed speak publicly about [my son] – it’s like his identity is just gone and brushed under the table.”

“We can’t talk about him and live on his legacy and his memory, and it’s very painful. It’s like everything is against the victims and everything is going in favour of the man that did this to [my son]; it just seems very unfair.”

The mother said the loss of her son has been hard enough to cope with, but that the restriction has only added insult to her son’s memory: “It’s like [he] didn’t exist.”

She also said she feared that peer support from parents who had been through similar incidents would be jeopardised by this restriction.

Mr Justice Michael White described the murder as a “horrific breach of trust” and an “unspeakably violent crime”, before sentencing the defendant to the mandatory term of life imprisonment.  

A week earlier, a teenage boy was stabbed in an incident in Dublin. The teenager was named in the press, but after a man was charged with his murder it was no longer possible for the media to name the boy. 

At a court appearance by the accused, Solicitor Fergus Foody, on behalf of Independent News & Media (INM), made an application in relation to the anonymity order.

He asked the judge to clarify one aspect of his reporting restriction ruling. Section 252 applied in relation to the deceased, he said, but the basis for no identification of the accused was not clear, he submitted.

“My view is that the identification of the accused could give way to identification of the victim, and the victim must be protected,” the judge replied.

“In my view, the name of the accused should be prohibited.”

The INM solicitor said that he had not been given any basis, to which the judge replied, “I have made my decision”.

Another case affected by this Act was the alleged murder of two young children and their mother by a man, also in Dublin, in 2020. When the bodies of the three victims were found, they were named in the media.

Subsequently, a man was charged with the murders of the woman and two children at their south Co Dublin home. The man has been further remanded in custody pending formal directions from the DPP. A murder investigation was launched following a post-mortem into the three deaths in October.

The media was told by the judge at the man’s first hearing that there were reporting restrictions. At his second court appearance on 2 December 2020, lawyers from RTÉ and a number of newspapers asked Judge Blake to consider lifting the restrictions, also possible under section 252 of Children Act where the court is satisfied it is in the interest of the child.

The defence objected.

Judge Blake said an application could not be heard until the defence and the chief prosecution solicitor at the office of the DPP had been put on formal notice.  

Also in January of this year, a man was charged during an investigation into the death of a teenage boy (17) in Drogheda.

The man, aged his 40s, appeared before a Special Sitting of Dundalk Court. The man and the teenage boy can also not be be named.

Reaction

On Monday of this week, after the latest case involving the 11-year-old murder victim, Justice Minister Helen McEntee said it was “wrong” that parents were caused pain by not being able to remember their child by name.

She said that she will bring proposals to Cabinet to fix the issue.

“Every child’s name must be remembered. No parent should be stopped from preserving the legacy of their children,” McEntee said.

“This is wrong and I will change it. My officials have been working on how we can solve this problem and I will bring proposals on how we will fix this to Cabinet next week.”

Fianna Fáil TD Jim O’Callaghan had previously tabled a bill to try and amend the 2001 act, as did Senator Michael McDowell. 

McDowell said the amendment would clarify “that persons accused of homicide offences against children cannot hide behind the child’s privacy rights to conceal their own identity”. 

However, it looks now like the Justice Minister will bring about a change separate to O’Callaghan and McDowell’s proposed bills. 

Also yesterday, a spokesperson for the Justice Minister said McEntee is “committed” to addressing the main issues of concern arising out of the interpretation of Section 252 of the Children Act 2001 by the Court of Appeal, and was canvassing legal advices on “how best to resolve the issues arising from the decision of the Court of Appeal”.

“Detailed discussions are ongoing, on how this can be done as quickly as possible. Consideration will also have to be given to any changes to ensure they do not result in unintended consequences and are consistent with the key principle of the best interests of the child,” the spokesperson said.

Additional reporting Adam Daly, David Raleigh, Tom Tuite and Eoin Reynolds.