Conor Fottrell

There was significant public reaction recently following a report which appeared in national newspapers arising from an application under the Childcare Act brought before the High Court.

The report was published in both hard copy and online platforms and was followed later in the day by a clarification and apology from one of the newspapers indicating that it was not “the intention of the paper to imply the victim was in any way culpable”.

The article has subsequently been withdrawn from various websites.

The reporting of the case and public response is a reminder of the need to exercise caution and restraint when covering these highly-sensitive childcare cases.

There is a delicate balance between protecting the privacy of the young person concerned and the public interest in reporting of the case.

These particular cases involve the most vulnerable and high-risk young people in the care of the state. The circumstances are deeply concerning, with young children who are exposed to neglect, physical or emotional abuse, sexual exploitation and engagement with alcohol and drug use.

An application is brought before the High Court usually on an emergency basis seeking an urgent order from the court to place a young person who is at risk in the community in a special care unit for a fixed period of time.

It is an exceptional order involving civil detention depriving a young person of their liberty, which is made only when there is a serious and immediate risk to their life, health, safety or welfare. The jurisdiction exercised by the Ccourt in making such orders is a formidable one.

So, what then is the legal position in relation to the press attending court and reporting on these cases?

In January 2018, the relevant provisions of part IVA of the Childcare (Amendment) Act 2011 were introduced updating the Childcare Act 1991 by inserting new sections 23 (A) to section 23(NO) with a statutory power to detain minors in special care units by order of the High Court.

The amendment of the Childcare Act and the insertion of the new part of the act provides for the manner in which these applications are to be heard. This new section means that the act now has two separate provisions dealing with the way in which childcare proceedings are to be heard.

Section 23 (NH) simply provides that “proceedings under this part shall be heard otherwise than in public”, basically meaning that only those parties and their legal representatives directly involved in the case can attend the court. Section 29 of the act covers care proceedings in the other courts.

Shortly after the new section of the act was introduced, a case came before the High Court in which an issue arose as to whether the court had jurisdiction or discretion to permit members of the press and others including legal researchers to attend and report on these proceedings.

The High Court determined that it had discretion under the act to permit bona fide members of the press to attend court and report on the cases. This was subject to the restriction on any reporting which would tend to identify any child who is the subject to the proceedings.

These applications appear regularly before the High Court and the courts are keenly aware that these particular cases involve a relatively small cohort of children and young people.

The protection and welfare of these children is of paramount concern for the court.

Judges regularly make themselves available at short notice to hear urgent applications relating to vulnerable high-risk children.

On each occasion before any such application the court reminds those present of the reporting restrictions in place.

The public reaction to the reporting in the newspapers recently is understandable. There was widespread shock and concern expressed for the young person involved. And it should be a cause of alarm to everyone that a young child was subject to such horrific exploitation.

I have been involved in many of these applications over the years and it is worth noting that in bringing these applications before the court they are never presented in a way that the young person is in some manner responsible for the unfortunate set of circumstances in which they may find themselves.

There is a balance to be struck when covering these cases. With access to a wide variety of social media platforms a person’s privacy, identity and where they live are frequently an open book.

The press has a responsibility and role to play to ensure that any report protects the privacy of the minor and ensure that there is nothing in their report which could identify any child who is the subject of these applications. There are a small number of children involved here and therefore there is a higher risk of a child being identified.

It must also be acknowledged that there is a public interest and duty to report on these cases so the wider public can understand how the courts discharge their function and similarly how state agencies comply with their statutory obligations.

In addition, it could be said that it is preferable to have transparency and reporting on cases to bring a necessary public insight and awareness of the unfortunate circumstances in which some of the most vulnerable high -risk young children are placed into the care of the state.

It is likely this issue will be revisited by the High Court at some time in the future but for the moment perhaps this is a timely reminder that the safety and welfare of children is everyone’s responsibility and the best interests of the child should be first and foremost in all our minds.

• Conor Fottrell is a partner in the dispute resolution team at Mason Hayes & Curran LLP. This article first appeared in the Law Society Gazette.