Report published despite children’s media misgivings

MR JUSTICE John MacMenamin said he was granting the HSE permission to publish the report having listened to the views of the children over whether the report should be published amid their serious concerns that it would attract more sensationalised media coverage.

One of the children told the judge it would have been better not to have been taken into care rather than “go through what the media have done. I can’t do it again”.

Yesterday’s ruling arose out of an application to the court by the HSE for an order enabling it to publish the report of an inquiry team set up after questions were raised about the manner in which the HSE had discharged its childcare functions in relation to the family.

A particular issue, Mr Justice McMenamin said, was why the children had not been taken into care until 2004, even though the local health board had been involved in some aspects of the family situation for a number of years previously.

The judge granted orders permitting publication of the report, but preventing publication of any matter relating to the identities of the children.

The order also includes an injunction restraining any person in the media from approaching, contacting or filming any of the six children who are still minors.

The judge said the question of publication had to be determined with regard to the Constitutional and European Convention on Human Rights issues involved. As the application has no precedent in this jurisdiction, and raises important legal issues, the judge said he would deliver a detailed judgment in due course.

Because of the urgency of the case, he felt he had to deliver a brief extempore judgment in which he decided that, on balance, the report should be published and that he was doing so because of the “deep concerns which the children have regarding further publicity”.

The judge said he had been asked by the childrens’ court-appointed guardian to meet with the children and he did so informally and in the absence of lawyers.

He found the children, individually and collectively, to be “remarkably brave and resilient”, wanting their voices to be heard and also to be allowed to lead their lives in a normal way.

One said “we just want to be normal kids” but they were “very fearful” of the publicity which would be involved in the publication of the inquiry report, the judge said.

Some were reconciled to the publicity issue, some were not, and despite their bravery, they are “extremely vulnerable”, he said.

“One said: ‘I didn’t want this to happen to me. I now feel scared and frightened’”. A particular concern was some of the “sensationalised media coverage”, the judge said.

Another child said: “I prefer that they never took me into care at all. It would be better to live at home than to go through what the media have done. I can’t do it again.”

One of the children wrote a song “eloquently describing the human predicament” they all face in a situation not of their own making, the judge said.

While there are many causes for the sense of hurt, anger, frustration and fear they feel, including the abuse itself, one cannot ignore the extent to which the children feel the publication of the report could lead to them having to re-live what they wish to forget, he said.

They “vividly remember specific sensational headlines” and while some did not want the report published at all, all expressed the wish the media should understand the hurt caused to them by the earlier headlines.

On balance, the judge said, a number of the children feel more good than bad will come from publication “provided that sensationalised coverage does not take place.”

The court had to decide the balance of rights, including freedom of expression and guarantees due to children generally such as life and bodily integrity compared to rights to privacy, dignity and good name.

While the welfare of the children must be paramount, the subject matter of the report is a matter of public interest “in the broadest sense”, the judge said.

A number of the children expressed the view that the effect of the report might ensure there was no repetition elsewhere “of what occurred” and this was a decisive factor in his decision provided they did not have to live through it all again through media coverage, the judge said.

A further reason was that the report was commissioned by the HSE as part of its statutory duties under the Child Care Act and a failure to publish, or to prohibit publication, might be misrepresented as some form of “cover up”, using the children as an excuse, when this was not the situation, he added.