High Court upholds fines imposed on three newspapers for contempt


THE HIGH Court has ruled that a District Court judge was correct in fining The Irish Times and two other newspapers for contempt of court arising out of a report in January 2011 on the granting of care orders to the Health Service Executive for twin babies who had been hospitalised with serious head injuries.

Judge Con O’Leary, who made the orders, issued a summons to the editors of The Irish Times, the Irish Examiner and the Evening Echo requiring them to appear in court to show cause why they should not be imprisoned for contempt of court for publishing material tending to identify children who were the subject of proceedings under the Child Care Act, or publishing material disclosing the result of such proceedings.

Following a hearing in the District Court, he found they should not be subject to sanction for publishing material tending to identify the children. However, he found they should be sanctioned for publishing material tending to disclose the result of the proceedings and fined them €1,000 each.

Four legal questions were sent forward to the High Court. These were whether Judge O’Leary was right to consider that it was not necessary to intend to violate the in camera rule to be guilty of contempt of court; whether he was right in holding that the European Convention on Human Rights did not permit them to report the proceedings; whether he was right that the publication of the fact that a care order had been made, even though the children were not identified, was a contempt of court; and whether the sentence was correct in law.

After a hearing earlier this year Mr Justice George Birmingham gave his written judgment yesterday. He summarised the articles that had appeared about the case, which included one on January 18th in The Irish Times entitled “HSE gets care orders for injured baby twins” and one in the Irish Examiner on January 20th saying the HSE had secured interim care orders for the children.

The case also received extensive coverage in other newspapers, but without referring to the care orders. The Irish Daily Mirror named the family, detailed their ethnic/cultural background and named the village in which they lived and the nearest town.

Mr Justice Birmingham said the three newspapers directly concerned with the application did not identify the children. However, background information was published, including that they were twins, were males born in October 2010, the names of the hospitals where they were cared for, the ages of the parents and that they lived in the east Cork area.

The sections of the media that did not refer to the court proceedings went much further in identifying the children, he said, including naming the family.

Turning to the questions asked, the judge said the approach taken by Judge O’Leary accorded with traditional jurisprudence in relation to contempt of court in finding that it did not require an intention to breach the in camera rule.

In relation to the question as to whether it was contempt to publish the fact of the making of the order without identifying the children, he said: “A considerable amount of information was provided about the children and their background, to the extent that a significant section of the general public, learning that the children had been taken into care, would have had no difficulty in working out which children were being referred to.”

He said the requirement that childcare proceedings should be held in private was not some peculiarity of Irish law but existed in most countries in the Council of Europe and was recognised by the European Convention on Human Rights. He said he had already ruled in the McAnaspie case that the in camera rule was not absolute, and the judge could authorise disclosure. However, in this case the editors took the decision to publish without reference to the court. Had they asked the court they might have been permitted some form of publication, perhaps subject to conditions.

On the final question, he said the sanction imposed of a €1,000 fine was a perfectly lawful one.