A court ruling has highlighted the need for legislation to fix anomalies in the 2001 Children Act that prevents perpetrators of crimes against children being named, legal experts say.
On Wednesday, High Court judge Mr Justice Tony Hunt said he had a different view to the Court of Appeal which last month rejected an application by several media outlets to name a woman who killed her child.
That ruling means a deceased child victim cannot be named and the person charged with an offence against them may be not named either.
In a case before him, Hunt said that, while he must yield to the higher court, he would permit the identification of a 56-year-old man convicted of raping two children because of his interpretation of “child” in the Act.
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The rapist had asked the court for anonymity, citing the Act.
Public interest
The judge said the “natural and ordinary meaning of the term ‘child’ does not encompass a deceased child or an adult” and that it was “in the public interest” to permit his identification.
Lawyers say Hunt had identified a “dispensing provision” within the law whereby the naming prohibition could be sidestepped if in the best interest of the child. In this case, the victims were now adults who wanted their abuser to be named.
“He seemed to be saying that it was in the best interest of the child because naming their wrongdoer might have a good, therapeutic effect for them,” said barrister Sean Gillane SC.
Gillane said the Court of Appeal ruling "is clearly screaming for an amendment" by the Oireachtas because "the blanket ban as a result of a simply phrased section can produce all of these anomalies".
‘Badly phrased’
One anomaly was the potential where it could be argued in the Court of Appeal that the ban arose in cases where the victim was now an adult.
“It is just a badly phrased section,” Gillane said, noting it could be simple to give a court power to lift the ban if it was in the public interest or it was no longer of any use.
Tom O'Malley, a barrister and law lecturer at NUI Galway, said the victims in the case before Mr Justice Hunt, while now adults, were children at the time the offences took place and the law could still be interpreted as being applicable.
He said the relevant part of the Act, section 252, was aimed at protecting people who were children at the time of the proceedings and there could be amending legislation to at least give a court discretion to reveal the names in certain cases. “It could be cleared up. It is really a political decision at this point,” he said.
Independent Senator Michael McDowell, a practising barrister, has a Bill before the Seanad to permit the naming of people charged or convicted of child homicide.
