Sunday 15 December 2019

Judge lifts reporting ban on landmark case of genetic parents trying to get their names on children's birth certs

Dearbhail McDonald Legal Editor

THE country's most senior family law judge has lifted a blanket ban on media reporting of a landmark surrogacy action involving two young children whose genetic parents want to be registered as parents on their birth certificate.

Mr Justice Henry Abbott revised an earlier ruling excluding the media that he issued last Monday following legal submissions by the Irish Independent and two other newspapers.

The Office of the Attorney General had opposed any reporting of the case, which the High Court heard has "serious implications for the public interest".

The case, involving applications under the Status of Children Act 1987 and the Guardianship of Infants Act 1964, will be heard in private.

However, designated reporters from the Irish Independent, Sunday Times and Irish Times - as well as a member of the High Court press pool- will be allowed to report part of the proceedings subject to strict reporting restrictions that will be supervised by the court.

The restrictions, which include a ban on contemporaneous publication on social media such as Twitter by the designated reporters, are designed to protect the identity of the parties whose evidence will be given in private.

Details of the reporting restrictions were unveiled this afternoon following detailed discussions between the newspapers and the State as well as the applicants.

Earlier, Judge Abbott said that the judiciary should be careful not to arrive at a situation where the courts are perceived to be purposely "avoiding the public gaze" under the guise of protecting childrens'


Judge Abbott made the remarks during an application by the Irish Independent and other newspapers to report a landmark case involving "two very small children".

Judge Abbott, who last Monday ruled that the media should be excluded from attending the case, said that he took the view that in respect of matters of "very heavy and serious public importance" the interests of children are primary and paramount.

But he said that childrens' interests could not be used "as an instrument of avoiding the public gaze" adding that it was a "natural, shy reaction" not to want to place sensitive material before the public.

"These are matters of high constitutional justice which the courts should be jealous to protect," said Judge Abbott following legal submissions by the Irish Independent, the Sunday Times and the Irish Times.

During extensive legal argument, lawyers for the Attorney General said the State had taken the view that the entire case should be heard In Camera and raised concerns that the "very small children involved" at the centre of the dispute would have to deal with the consequences of any publication throughout their entire lives.

"These are children whose lives will be permanently and materially affected by publication," said Senior Counsel Mary O'Toole for the Attorney General.

The applicants in the case said that they were not attempting to exclude the press.

Senior Counsel Gerard Durcan, for the applicants, suggested that a balance between the private interest of the parties and the public interest could be achieved by limited reporting of the proceedings subject to strict reporting restrictions and directions imposed by the court.

Such a balancing exercise could avoid the case being turned into a "circus" said Mr Durcan who said it was important that the court kept control by keeping the case in private but allowing designated members of the press to attend subject to the supervision of the courts and certain restrictions.

On Monday Judge Abbott ruled that the media were to be excluded from covering the landmark action.

The reporting ban followed legal submissions to report all or part of the proceedings by Independent Newspapers and the Sunday Times.

But yesterday (TUES) the two papers went back to Judge Abbott and made additional submissions.

Those titles were joined this morning (WED) in their bid to report the action by the Irish Times.

The newspapers had stated at the outset that they did not seek in anyway to identify the parties or to report any information that would tend to identify them.

The papers also undertook not to cover the private evidence of the parties.

Barrister Ray Ryan, for the Irish Independent and the Irish Times, said that the applicants acknowledged the public interest in the proceedings, adding that the public interest had been implicitly recognised by the Attorney General.

A balancing exercise goes to the root of the case, Mr Ryan told the Court.

Mr Ryan said that the correct approach of the the court was to recognise the competing rights which needed to be balanced.

The case should be heard in public subject to the necessary safeguards, added Mr Ryan who said any "shutting out entirely of the press" would be disproportionate under the European Convention of Human Rights which was incorporated into Irish law in 2003.

Barrister James McGowan, for the Sunday Times, told Judge Abbott that selective reporting - as well as media exclusion from the private evidence given by them - could protect the parties identity and privacy.

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