Appeal court rules against public naming of deceased child.

political analyst · 29-10-2020 1:53pm #1

https://www.rte.ie/news/2020/1029/1174666-court-of-appeal-children/

The Court of Appeal has ruled that a dead child cannot be identified, when someone is charged with killing them.

The ruling also means that the person charged with the child's murder or manslaughter cannot be named if by doing so, the child would also be identified.

The ruling came in an appeal taken by RTÉ and other media outlets in the case of a woman who was found not guilty by reason of insanity of killing her three-year-old daughter.

The ruling means that victims of violent crime, such as 14-year-old Ana Kriégel, who was murdered in 2018 by two 13-year-old boys, cannot be identified when those accused of killing them are charged.

Does this mean that, if the Court of Appeal had passed this judgement before Ana was murdered, her parents would have been unable to have her name or family photos of her published in the media?

Carawaystick · 29-10-2020 9:58pm

I'd say it means that she was named unlawfully, and the CoA has stated the law as was determined by the Oireachtas

https://courts.ie/view/judgments/b37ccbdc-2247-4531-b5af-c2b2ce2f4657/b9037200-9e83-43d1-96a0-78edc98fc903/2020_IECA_292%20(Unapproved).pdf/pdf

Peregrinus · 30-10-2020 3:26am

political analyst wrote: »

Does this mean that, if the Court of Appeal had passed this judgement before Ana was murdered, her parents would have been unable to have her name or family photos of her published in the media?

Not in a way that would have identified her as the victim of this murder, no.

Of course, as she wouldn't have been identified in the media as the victim of the murder by anyone else either, they might not have felt the same need to put their perspective on her in the newspapers.

stockshares · 30-10-2020 11:28am

This decision has just been discussed on the This Morning With Claire Byrne show. Philip Boucher Hayes was standing in for Claire.

He Interviewed a parent of murdered children but he could not name her or the children or theur killer. It was a very difficult interview for the Parent as she had to constantly check what she was saying in order to not name her children or their killer.

Jim O Callaghan made a very good contribution afterwards. He said that legislation needs to be brought in to change article 252 of the Children's Act.
http://www.irishstatutebook.ie/eli/2001/act/24/section/252/enacted/en/html#:~:text=Anonymity%20of%20child%20in%20court%20proceedings.&text=(b)%20no%20picture%20which%20purports,to%20his%20or%20her%20identification%2C&text=(5)%20Nothing%20in%20this%20section,as%20to%20contempt%20of%20court.

I'll post the podcast later.

In the meantime an attempt to use the new ruling has already been tried and not for the better.

Defending Barrister SC Patrick Gageby has tried to use this law as a means of not identifying his client who is accused of the rape of two children.
https://twitter.com/courtsnewsIRL/status/1321862631293128705?s=19

political analyst · 30-10-2020 12:45pm

stockshares wrote: »

This decision has just been discussed on the This Morning With Claire Byrne show. Philip Boucher Hayes was standing in for Claire.

He Interviewed a parent of murdered children but he could not name her or the children or theur killer. It was a very difficult interview for the Parent as she had to constantly check what she was saying in order to not name her children or their killer.

Jim O Callaghan made a very good contribution afterwards. He said that legislation needs to be brought in to change article 252 of the Children's Act.
http://www.irishstatutebook.ie/eli/2001/act/24/section/252/enacted/en/html#:~:text=Anonymity%20of%20child%20in%20court%20proceedings.&text=(b)%20no%20picture%20which%20purports,to%20his%20or%20her%20identification%2C&text=(5)%20Nothing%20in%20this%20section,as%20to%20contempt%20of%20court.

I'll post the podcast later.

In the meantime an attempt to use the new ruling has already been tried and not for the better.

Defending Barrister SC Patrick Gageby has tried to use this law as a means of not identifying his client who is accused of the rape of two children.
https://twitter.com/courtsnewsIRL/status/1321862631293128705?s=19

If the victims of the rapists have reached adulthood and are still alive then I can't imagine that even yesterday's CoA decision would prevent them from waiving anonymity.

By the way, here's the summary of what Jim O'Callaghan said this morning.

https://www.rte.ie/news/ireland/2020/1030/1174882-court-of-appeal-children/

stockshares · 30-10-2020 1:20pm

political analyst wrote: »

If the victims of the rapists have reached adulthood and are still alive then I can't imagine that even yesterday's CoA decision would prevent them from waiving anonymity.

By the way, here's the summary of what Jim O'Callaghan said this morning.

https://www.rte.ie/news/ireland/2020/1030/1174882-court-of-appeal-children/

Thanks for the link. It's helpful as it's difficult to grasp everything that's said during the interview.

It is indeed absurd that a murdered child can't be named and neither can their killer.

Do you know why Helen McEentee can't intervene? This wasn't asked by Boucher Hayes.

Would this amendment only refer to murdered children and not to children who were harmed in other ways?

Quote
He said it will take legislation rather than an intervention from Minister for Justice Helen McEntee in order to amend Section 252 of the Children's Act 2001 in such a way to exclude, he said, offences that relate to the homicide of a child.

Also regarding the Case mentioned above the children appear to be alive and are Adults now as said by Paul Murray Sc of the DPP in this tweet.
https://twitter.com/courtsnewsIRL/status/1321863825688350721?s=19

stockshares · 30-10-2020 1:40pm

How does the new ruling affect the reporting of the murder of children and their mother at Llewellyn Court, Ballinteer in the last few days. The link is up on Rte now naming the children?

These murders happened shortly before the ruling and the mother and children had already been named before the ruling was made

https://www.rte.ie/news/ireland/2020/1029/1174565-dublin-deaths-rathfarnham-ballinteer/

SusanC10 · 30-10-2020 1:47pm

I remember 2 mothers in particular, both of whom Husbands killed their children. 1 killed himself and the other is in prison.
Does this mean that these mothers would not be in a position to speak publically about these crimes ?
Even after the conviction of the husband/father who remained alive ?

stockshares · 30-10-2020 1:51pm

stockshares wrote: »

This decision has just been discussed on the This Morning With Claire Byrne show. Philip Boucher Hayes was standing in for Claire.

He Interviewed a parent of murdered children but he could not name her or the children or theur killer. It was a very difficult interview for the Parent as she had to constantly check what she was saying in order to not name her children or their killer.

Jim O Callaghan made a very good contribution afterwards. He said that legislation needs to be brought in to change article 252 of the Children's Act.
http://www.irishstatutebook.ie/eli/2001/act/24/section/252/enacted/en/html#:~:text=Anonymity%20of%20child%20in%20court%20proceedings.&text=(b)%20no%20picture%20which%20purports,to%20his%20or%20her%20identification%2C&text=(5)%20Nothing%20in%20this%20section,as%20to%20contempt%20of%20court.

I'll post the podcast later.

In the meantime an attempt to use the new ruling has already been tried and not for the better.

Defending Barrister SC Patrick Gageby has tried to use this law as a means of not identifying his client who is accused of the rape of two children.
https://twitter.com/courtsnewsIRL/status/1321862631293128705?s=19

Here is the Boucher Hayes Interview. Let the Ad play first. Interview starts at 6m:50sec.
https://www.rte.ie/radio/utils/share/radio1/11247415

stockshares · 30-10-2020 4:11pm

SusanC10 wrote: »

I remember 2 mothers in particular, both of whom Husbands killed their children. 1 killed himself and the other is in prison.
Does this mean that these mothers would not be in a position to speak publically about these crimes ?
Even after the conviction of the husband/father who remained alive ?

I'm not a Solicitor so I'm only interpreting from what was said this morning.

I think neither can mention the names of their Children in the media. I don't know how the ruling applies to them speaking in public to people outside the media.

Both Mother's in the cases you mentioned are in the same position as the Mother who spoke with Boucher Hayes this morning and she could not mention the names of her children which seemed cruel to me.

Victor · 31-10-2020 4:12am

http://www.irishstatutebook.ie/eli/2001/act/24/section/252/enacted/en/html

(2) 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 interests of the child.

Hmmm, is it in the interests of a child to have their murderer named? While the deceased won't gain directly from such naming, it is some form of vindication.

Carawaystick · 01-11-2020 5:36pm

stockshares wrote: »

How does the new ruling affect the reporting of the murder of children and their mother at Llewellyn Court, Ballinteer in the last few days. The link is up on Rte now naming the children?

These murders happened shortly before the ruling and the mother and children had already been named before the ruling was made

It only applies when a person is charged with a crime involving a child, i.e. court proceedings have started. So a murdered child can be named up until the accused is brought before the court, but then can't be.

01-11-2020 5:44pm

Victor wrote: »

http://www.irishstatutebook.ie/eli/2001/act/24/section/252/enacted/en/html

Hmmm, is it in the interests of a child to have their murderer named? While the deceased won't gain directly from such naming, it is some form of vindication.

How can a dead person benefit or have any interest?

Nokia6230i · 02-11-2020 5:30am

Carawaystick wrote: »

It only applies when a person is charged with a crime involving a child, i.e. court proceedings have started. So a murdered child can be named up until the accused is brought before the court, but then can't be.

This explanation is perfect; but it'll mean how court cases can be reported on from here on in will be very difficult.

Remember the Athlone case where the man raped 2 Kids? No paper identified hiim but the social media justice warriors did; not sure what they were trying to achieve & the behaviour outside the Barracks etc. was that of a lynch mob.

Traditional media on & off line will be subject to this but social media is the Wild West & if you look at the relatively few (11) so far charged with naming Boy A & B there's gonna have to be multiple prosecutions going forward.

Hopefully Section 252 can be adjusted for sake of victims & families (at their consent) & also for the media; the gossip groups will have a field day while the media're hamstrung; if on a Facebook/Twitter post the media report but don't name child victim/defendant they're gonna have to turn off comments immediately.

Nokia6230i · 02-11-2020 5:35am

stockshares wrote: »

Here is the Boucher Hayes Interview. Let the Ad play first. Interview starts at 6m:50sec.
https://www.rte.ie/radio/utils/share/radio1/11247415

I know the lady in the interview; she's well known locally in a positive way; rulings like this silence not only her childrens (not saying if plural or singular; I don't want to risk Boards being in legal bother) & her but also give anonymity to the killer; this is totally unfair for their memory.

Unsure what hounding the killer achieves but sometimes when these people get back into society they don't reveal their past to say, potential partners etc.

Even listening to the interview she couldn't get out what she wanted to say in a way she has so eloquently before.....

Peregrinus · 02-11-2020 5:38am

Nokia6230i wrote: »

This explanation is perfect; but it'll mean how court cases can be reported on from here on in will be very difficult.

Remember the Athlone case where the man raped 2 Kids? No paper identified hiim but the social media justice warriors did; not sure what they were trying to achieve & the behaviour outside the Barracks etc. was that of a lynch mob.

Traditional media on & off line will be subject to this but social media is the Wild West & if you look at the relatively few (11) so far charged with naming Boy A & B there's gonna have to be multiple prosecutions going forward.

Hopefully Section 252 can be adjusted for sake of victims & families (at their consent) & also for the media; the gossip groups will have a field day while the media're hamstrung; if on a Facebook/Twitter post the media report but don't name child victim/defendant they're gonna have to turn off comments immediately.

To be honest, I could live with this quite comfortably. The comments that get added to news reports are rarely enlightening or edifying.

As for the social media, I think social media operators are going to have to lift their game, in terms of monitoring what gets posted and taking some responsibility for it. This particular one is not technically challenging; it's not difficult to screen all posts for mention of a specific name and put a block on them until satisfied that the post will not breach a "do not identify the victim" law. Obviously there can be an issue where a victim has a common name and many posts which mention that name are in fact referring to someone else, but this isn't an insurmountable problem.

There's an issue about whether we should ban the identification of child victisms and, if we do, whether and when we should create exceptions to bans. But I don't think those questions should get answered by reference to what will be convenient or profitable for the news media and/or the social media operators. They'll just have to learn to operate within whatever rules we think fit to adopt.

speckle · 02-11-2020 6:41am

What happens if they charge someone and bring them to court with the child still missing.. will it hamper the search and any parental/ public appeals? Maybe the ruling needs more nuance?

Peregrinus · 02-11-2020 6:53am

speckle wrote: »

What happens if they charge someone and bring them to court with the child still missing.. will it hamper the search and any parental/ public appeals? Maybe the ruling needs more nuance?

It's not the ruling that needs more nuance; it's the legislation.

speckle · 02-11-2020 6:58am

Apologies, thats what I meant. thanks

stockshares · 03-11-2020 4:10pm

Some good news on it

https://twitter.com/OCallaghanJim/status/1323224199654232070?s=19

political analyst · 03-11-2020 6:17pm

Nokia6230i wrote: »

I know the lady in the interview; she's well known locally in a positive way; rulings like this silence not only her childrens (not saying if plural or singular; I don't want to risk Boards being in legal bother) & her but also give anonymity to the killer; this is totally unfair for their memory.

Unsure what hounding the killer achieves but sometimes when these people get back into society they don't reveal their past to say, potential partners etc.

Even listening to the interview she couldn't get out what she wanted to say in a way she has so eloquently before.....

I don't believe that last week's judgement applies to adults who have already been sentenced for the homicides of children because, as a rule, these judgements are not retrospective.

Nokia6230i · 03-11-2020 8:48pm

political analyst wrote: »

I don't believe that last week's judgement applies to adults who have already been sentenced for the homicides of children because, as a rule, these judgements are not retrospective.

You didn't hear last weeks Philip Boucher-Hayes interview with the mother of chlldren who were killed by an adult; even on here I don't want to say her/their/his name cos it'll get Boards into legal trouble.

It felt so odd, knowing her story and having heard her interviewed & speaking on local & national radio, to not hear her name being used by PBH, to not hear her being addressed, to not hear her use their name or his etc. during it.

So it does appear to be retrospective....hopefully that Jim O'Callaghan bill will repair the situation and soon rather than we're still discussing this in a year or twos time...

stockshares · 03-11-2020 10:47pm

political analyst wrote: »

I don't believe that last week's judgement applies to adults who have already been sentenced for the homicides of children because, as a rule, these judgements are not retrospective.

The link to that interview is in post #9.

Boucher Hayes approached it like it was retrospective but it was shortly after the ruling.

I haven't heard an updated opinion on it by Rte or anyone else.

political analyst · 09-11-2020 1:48am

Will there be an appeal to the Supreme Court?

Peregrinus · 09-11-2020 2:45am

political analyst wrote: »

Will there be an appeal to the Supreme Court?

That's up to RTE and the other media outlets. They can appeal if they want to.

But they already fought this case in the High Court and lost it, then appealed to the Court of Appeal where they have lost again, with all three judges ruling against them. They'll think long and hard about whether a further appeal has any real chance of success before they commit to one.

political analyst · 09-11-2020 3:23pm

Peregrinus wrote: »

That's up to RTE and the other media outlets. They can appeal if they want to.

But they already fought this case in the High Court and lost it, then appealed to the Court of Appeal where they have lost again, with all three judges ruling against them. They'll think long and hard about whether a further appeal has any real chance of success before they commit to one.

The irony is that this chilling effect on the naming of convicted criminals wouldn't be happening if it wasn't for the media looking to name the woman who was acquitted by reason of insanity on the charge of the murder of her child. Why couldn't they just leave her alone?!

Jim O'Callaghan is putting legislation forward to resolve this issue. I believe that Helen McEntee will approve.

political analyst · 09-11-2020 7:18pm

Why didn't the Court of Appeal state in its judgement that the anonymity in question applies only when such an order sought by the DPP has been granted and that it doesn't apply to cases which have been dealt with and in which the perpetrator has died or been convicted?

political analyst · 09-11-2020 7:23pm

Jim O'Callaghan's Dáil and Fianna Fáil colleague Jennifer Murnane O’Connor is also proposing the new legislation.

https://kclr96fm.com/carlow-kilkenny-td-calls-for-amendment-to-childrens-act-to-allow-identification-of-deceased-children-who-were-crime-victims/

political analyst · 09-11-2020 7:26pm

https://www.irishlegal.com/article/rival-proposals-to-allow-identification-of-child-killers

Fianna Fáil TD Jim O’Callaghan and Independent Senator Michael McDowell, both of whom are barristers, have now promised to bring forward legislation addressing this, the Irish Independent reports.

Mr O’Callaghan said his bill would amend the 2001 Act to exclude deceased children from restrictions on identifying children in reports or proceedings.

Senator McDowell’s bill would be similar but would also allow a court to permit the identification of an accused or convicted person in respect of non-fatal offences against children where it is in the public interest to do so.

Peregrinus · 10-11-2020 1:57am

political analyst wrote: »

Why didn't the Court of Appeal state in its judgement that the anonymity in question applies only when such an order sought by the DPP has been granted and that it doesn't apply to cases which have been dealt with and in which the perpetrator has died or been convicted?

Because that's not what the Act says. The courts arent' legislators. Unless the Act is unconstitutional they must give effect to it, and if we don't like the effect of the Act the proper thing to do is to have the Act amended - a matter for the legislature, not the courts.

Nokia6230i · 10-11-2020 9:13am

Peregrinus wrote: »

Because that's not what the Act says. The courts arent' legislators. Unless the Act is unconstitutional they must give effect to it, and if we don't like the effect of the Act the proper thing to do is to have the Act amended - a matter for the legislature, not the courts.

Fair to say this was/is an anomaly in the act & the only reason it was noticed is this is 1st time it's been challenged and/or the 1st time the DPP've issued such a reason not to disclose the anonymity of defendant in such a case, innocent or guilty or NG by reason of insanity etc.

DPP invoked their power under the act & all of a sudden this anomaly is noticed; will be intereested to see when the legislation is altered if it's retrospective to take in this case.

Given the length of time such things take to go through the Oir. this is likely to be an issue til when, Autumn 2021 maybe?

Peregrinus · 10-11-2020 9:35am

The current rule is that a child victim can't be named without a court order giving permission, and that the court can only give permission if it it's in the interests of the child. Since a deceased child can't have any interests, or since the interests of a deceased child can't be identified, the court can't give permission. Yeah, I think it's fair to say that this is an unintended consequence, arising from the fact that nobody thought of deceased children when the Act was being prepared.

But we need to think about what change should be made. It would be simple to say that the law doesn't apply to a child who has died, but that might be too crude. Suppose a child who is the victim of a crime has died, but the death is unrelated to the crime. Now the media can identify the child and write what they like; this might cause considerable distress to the child's family. Or, suppose that a child is a victim of murder or manslaughter in circumstances where they child was engaged in sex work, or committing a burglary, or joyriding, or whatever. Again, you can see considerable distress to the family resulting if there is no protection at all.

So maybe the change should be one in which court permission is still required, but where the child is deceased the court must consider the interests, not of the child, but of the child's family. But, of course, where the offender is a member of the child's family - which, in child death cases, will often be so - then it's not in the interests of the child's family to identify the child, since that will also identify the offender.

In short, there's a wide variety of possible situations here, and a short one-size-fits-all rule about naming deceased children is not likely to be satisfactory. It's easy to say that the present law is satisfactory; it's a bigger job to work out what a satisfactory law would say. What set of principles should be applied to protect the dignity of a deceased child, and the feelings of the surviving family?

The question of how long it takes to amend the law doesn't arise until you have worked out what amendment should be made. I think that will require consultation with various stakeholders who have views or experience to offer, plus a bit of time for reflection.

But I would expect the change to be retrospective - as in, whatever principles are eventually adopted, it will be possible to apply to court for permission, in light of those principles, to name a child who died before the law was amended.

political analyst · 10-11-2020 1:42pm

Peregrinus wrote: »

Because that's not what the Act says. The courts arent' legislators. Unless the Act is unconstitutional they must give effect to it, and if we don't like the effect of the Act the proper thing to do is to have the Act amended - a matter for the legislature, not the courts.

Neither does the Act say that the anonymity applies if a parent who caused the child's death is found guilty of murder or manslaughter and the other parent wants the names of the victim and the perpetrator published.

The separation of powers doesn't prevent the courts from interpreting legislation in the way the Oireachtas intended it to apply.

political analyst · 10-11-2020 1:45pm

Nokia6230i wrote: »

Fair to say this was/is an anomaly in the act & the only reason it was noticed is this is 1st time it's been challenged and/or the 1st time the DPP've issued such a reason not to disclose the anonymity of defendant in such a case, innocent or guilty or NG by reason of insanity etc.

DPP invoked their power under the act & all of a sudden this anomaly is noticed; will be intereested to see when the legislation is altered if it's retrospective to take in this case.

Given the length of time such things take to go through the Oir. this is likely to be an issue til when, Autumn 2021 maybe?

Given what Helen McEntee said recently about proposed reform to the justice system, I think the legislation will be passed long before that.

political analyst · 10-11-2020 1:56pm

stockshares wrote: »

In the meantime an attempt to use the new ruling has already been tried and not for the better.

Defending Barrister SC Patrick Gageby has tried to use this law as a means of not identifying his client who is accused of the rape of two children.
https://twitter.com/courtsnewsIRL/status/1321862631293128705?s=19

It's not necessarily the case that the CoA's judgement means that the judge in the rape case has to rule in favour of Gageby's client.

Peregrinus · 10-11-2020 6:01pm

political analyst wrote: »

Neither does the Act say that the anonymity applies if a parent who caused the child's death is found guilty of murder or manslaughter and the other parent wants the names of the victim and the perpetrator published.

The separation of powers doesn't prevent the courts from interpreting legislation in the way the Oireachtas intended it to apply.

But they can only deduce the intention of the Oireachtas from the words of the legislation. And none of the four judges who have considered the Act so far have found any words in it to suggest that the Oireachtas intended an exception in the case that you mention.

stockshares · 10-11-2020 6:21pm

political analyst wrote: »

It's not necessarily the case that the CoA's judgement means that the judge in the rape case has to rule in favour of Gageby's client.

I know, I just drew attention to the fact that the new ruling had already been used in a case.

I haven't heard anything about the progression of this case so I don't know whether it's been effective or not.

Could any amendments made to the new ruling be applied to decisions made by the Court in the meantime?

Peregrinus · 11-11-2020 2:03am

stockshares wrote: »

I know, I just drew attention to the fact that the new ruling had already been used in a case.

I haven't heard anything about the progression of this case so I don't know whether it's been effective or not.

Could any amendments made to the new ruling be applied to decisions made by the Court in the meantime?

Depends. Unless this gets appealed to the Supreme Court and the appeal is successful - two very big "ifs" - the way this gets changed is by legislation. And policy choices have to be made about exactly what changes to make. One of the policy choices to be made is about whether the changed rules will apply only to the child victims of future crimes, or whether they will apply to the child victims of crimes that have already happened.

political analyst · 11-11-2020 7:37pm

stockshares wrote: »

I know, I just drew attention to the fact that the new ruling had already been used in a case.

I haven't heard anything about the progression of this case so I don't know whether it's been effective or not.

Could any amendments made to the new ruling be applied to decisions made by the Court in the meantime?

https://www.rte.ie/news/courts/2020/1111/1177518-courts-naming-victims/

A High Court judge has said his interpretation of reporting restrictions in relation to child victims of crime differs from a recent Court of Appeal judgement.

Speaking in the case of now adult victims of child abuse who wish to have their rapist named, Justice Tony Hunt said that his own interpretation of the law "must yield to that of the higher court".

He was commenting on section 252 of the Children Act 2001, which provides mandatory and automatic reporting restrictions in the case of "any proceedings for an offence against a child".

This morning, Mr Justice Hunt said while the Court of Appeal ruling means the section 252 prohibitions apply, there is still scope in that section to lift the restrictions where the court "is satisfied that it is appropriate to do so in the interests of the child".

He accordingly made an order lifting all reporting restrictions in the case, saying he considers this was "in the public interest".

But he placed a 28-day stay on his order pending an application to the Court of Appeal by the defendant.

Mr Justice Hunt said that, having reviewed the testimony of the victims and their repeated assertions that they wish to be identified, he was satisfied that he should lift these prohibitions.

political analyst · 11-11-2020 7:41pm

Peregrinus wrote: »

The current rule is that a child victim can't be named without a court order giving permission, and that the court can only give permission if it it's in the interests of the child. Since a deceased child can't have any interests, or since the interests of a deceased child can't be identified, the court can't give permission. Yeah, I think it's fair to say that this is an unintended consequence, arising from the fact that nobody thought of deceased children when the Act was being prepared.

But we need to think about what change should be made. It would be simple to say that the law doesn't apply to a child who has died, but that might be too crude. Suppose a child who is the victim of a crime has died, but the death is unrelated to the crime. Now the media can identify the child and write what they like; this might cause considerable distress to the child's family. Or, suppose that a child is a victim of murder or manslaughter in circumstances where they child was engaged in sex work, or committing a burglary, or joyriding, or whatever. Again, you can see considerable distress to the family resulting if there is no protection at all.

So maybe the change should be one in which court permission is still required, but where the child is deceased the court must consider the interests, not of the child, but of the child's family. But, of course, where the offender is a member of the child's family - which, in child death cases, will often be so - then it's not in the interests of the child's family to identify the child, since that will also identify the offender.

In short, there's a wide variety of possible situations here, and a short one-size-fits-all rule about naming deceased children is not likely to be satisfactory. It's easy to say that the present law is satisfactory; it's a bigger job to work out what a satisfactory law would say. What set of principles should be applied to protect the dignity of a deceased child, and the feelings of the surviving family?

The question of how long it takes to amend the law doesn't arise until you have worked out what amendment should be made. I think that will require consultation with various stakeholders who have views or experience to offer, plus a bit of time for reflection.

But I would expect the change to be retrospective - as in, whatever principles are eventually adopted, it will be possible to apply to court for permission, in light of those principles, to name a child who died before the law was amended.

I find it hard to believe that the people responsible for drafting the legislation never heard of the murders of children.

Why doesn't the government just have the legislation put forward by Jim O'Callaghan rushed through the Oireachtas? Is there a constitutional requirement that legislation has to be examined by Oireachtas committees before it is passed?

Peregrinus · 12-11-2020 2:28am

political analyst wrote: »

I find it hard to believe that the people responsible for drafting the legislation never heard of the murders of children.

Why doesn't the government just have the legislation put forward by Jim O'Callaghan rushed through the Oireachtas? Is there a constitutional requirement that legislation has to be examined by Oireachtas committees before it is passed?

Never mind the constitution, there's a plain common-sense requirement that legislators should consider legislation carefully before they enact it.

We're in the position we're in because the existing legislation wasn't fully thought through when it was enacted. And you want to solve that by passing new legislation with even less consideration than the existing legislation got. What could possibly go wrong?

Nokia6230i · 12-11-2020 2:38am

Peregrinus wrote: »

Never mind the constitution, there's a plain common-sense requirement that legislators should consider legislation carefully before they enact it.

We're in the position we're in because the existing legislation wasn't fully thought through when it was enacted. And you want to solve that by passing new legislation with even less consideration than the existing legislation got. What could possibly go wrong?

How much consideration does updated legislation require in terms of this Act 252?

This is an easy fix; I can't imagine many TDs'll have an issue with it.

But it has to go before an Oir. Cttee. for scrutiny; more €s for the Chairperson & Cttee. members on it & it'll take into next year more than likely?

Delays such as this're what alienates people from politicians; I can't see there being much public opposition to correcting this anomaly.

Yes scrutinise it but how long should that take.......or is it a case of every dog has to have its.....pay?

Peregrinus · 12-11-2020 2:59am

Nokia6230i wrote: »

How much consideration does updated legislation require in terms of this Act 252?

This is an easy fix; I can't imagine many TDs'll have an issue with it.

There won't be much argument with the idea that the existing rule ought to be changed.

The difficult bit is deciding what new rule should be put in its place. That does require a bit of thought, and a bit of consultation with affected stakeholder groups, and a bit of balancing of competing views and interests.

Victor · 12-11-2020 3:34am

political analyst wrote: »

Why doesn't the government just have the legislation put forward by Jim O'Callaghan rushed through the Oireachtas?

Because if things are rushed, things get missed.

Nokia6230i · 12-11-2020 4:59am

political analyst wrote: »

https://www.rte.ie/news/courts/2020/1111/1177518-courts-naming-victims/

What's mentioned in the article about a representation already made to Min. for Justice Helen McEntee has made that case so easily identifiable already even without any names of child/ren or parent/s.......

I get a relation wants the ruling over-turned in whatever way but wonder if it'd been the other way round would've the identifiable details've been in the article?

It's one way round it until the legislation is changed but the case was most unusual; in such cases it's mainly single deaths so less easily identifiable.

hullaballoo · 12-11-2020 11:20am

political analyst wrote: »

https://www.rte.ie/news/courts/2020/1111/1177518-courts-naming-victims/

I don't expect you to know this as I presume you weren't present when the decision was made but did he lift the restrictions in the "interests of the child" or the "interests of the public"?

It's unclear from the reports I've seen.

One is consistent with s. 252 and one isn't.

political analyst · 12-11-2020 12:30pm

Victor wrote: »

Because if things are rushed, things get missed.

But, obviously, something in the Act of 2001 was missed anyway! I doubt there'd be anything as bad in O'Callaghan's legislation - he is a barrister, after all!

political analyst · 12-11-2020 12:32pm

hullaballoo wrote: »

I don't expect you to know this as I presume you weren't present when the decision was made but did he lift the restrictions in the "interests of the child" or the "interests of the public"?

It's unclear from the reports I've seen.

One is consistent with s. 252 and one isn't.

As I quoted from that report, a 28-day stay on the lifting of the anonymity is in place while the defendant appeals the trial judge's decision.

hullaballoo · 12-11-2020 12:51pm

political analyst wrote: »

As I quoted from that report, a 28-day stay on the lifting of the anonymity is in place while the defendant appeals the trial judge's decision.

I know, that's exactly the point.

Peregrinus · 13-11-2020 1:35am

political analyst wrote: »

But, obviously, something in the Act of 2001 was missed anyway! I doubt there'd be anything as bad in O'Callaghan's legislation - he is a barrister, after all!

The Act of 2001 was also drafted by lawyers!

But this issue here isn't technical legal drafting skills; it's policy formation. In order to draft legislation which will reliable deliver the desired outcome, you have to know what the desired outcome is. This involves more than just knowing that you don't desire the outcome of the 2001 Act.

political analyst · 15-11-2020 3:15pm

According to the Indo (14 November), a spokesperson for Helen McEntee said a letter written by a parent whose children died in an apparent murder-suicide that shocked the country had been received and Ms McEntee "sincerely appreciateds any person affected by the ruling, particularly a bereaved parent or family member, taking the time to share their perspective with her" and input from those affected by the ruling would "feed into considerations on the appropriate action to be taken in due course".

The Department of Justice said Ms McEntee had asked her officials to study the appeal court judgement so that, subject to the final outcome of the process, she would be in a position to consider the need for legislative change.

A spokesperson said:

The minister is committed to finding suitable means to progress any necessary legislative changes as expeditiously as possible in order to respond to concerns that have been raised.

In a separate case, the defence for a woman who is accused of murdering her children and who was previously named by the media made a successful application to have her identity anonymised. She is expected to plead not guilty by reason of insanity when she goes on trial next year. The trial is expected to take 3 days in front of a jury.

Appeal court rules against public naming of deceased child.

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