The decision of the Court of Appeal to uphold a High Court ruling prohibiting the identification of a child killed by its mother overturns decades of practice and opens up a plethora of anomalies. It also means that child murderers cannot, in the majority of cases, be identified, while those who murder adults can. It is hard to believe that this was the intention of the drafters of Section 252 of the Children Act 2001.
The anomalies are glaring: if a whole family falls victim to a murder-suicide, and the murdering parent kills him or herself, there will be no trial and all the victims can be named. However, if the perpetrator survives and there is a trial they cannot. The ruling also deprives a surviving parent of murdered children of the opportunity to express publicly their grief if there is a trial.
However, the wording of the Act, which prohibits the reporting of proceedings containing anything that might identify a child who was a witness or the victim of an offence is very clear, and it is difficult to see how the Court of Appeal could have ruled otherwise, once the High Court acceded to the initial application prohibiting identification.
In extremis in this case, the media argued that the word “child” should not include a dead child. But the Court of Appeal rejected that argument and, in reality, few would accept that a dead child was not a child.
Yet decades of practice in the courts indicate that this piece of legislation, and dozens of similar clauses in other laws, are intended to protect living children. The Court of Appeal, in a judgment written by the president of the court, Mr Justice George Birmingham, itself acknowledged, “its focus is on the protection of child victims from further victimisation which due to the nature of the case is not a factor here”.
No reasonable person would argue that it is in the public interest to identify children who are the victims of assault or sexual abuse, thus exposing them to ongoing stigma and trauma, and it has long been accepted practice to protect the anonymity of children involved in child protection and criminal proceedings.
The fact that, sadly, a number of children have been murdered since the enactment of the 2001 Children Act, and trials have proceeded without any application being made for the identity of the child to be protected, demonstrates how the law was understood by the DPP and other parties prior to this case. No voice was raised in the Oireachtas suggesting this was not the intention of the legislation.
However, the wording of the Act has laid it open to the interpretation made by the Court of Appeal. A simple amendment can fix it, and it is in the interests of justice, of child victims and of their families that this be enacted without delay.