The High Court last night granted The Irish Times permission to publish the name of the pregnancy counselling agency involved in the unlawful adoption case. However, Mrs Justice McGuinness put a stay on her order until 2 p.m. today to facilitate consideration of an appeal to the Supreme Court.
Mrs Justice McGuinness, at a special sitting of the court, accepted undertakings by The Irish Times and the Irish Independent not to publish any information concerning names or places or any other information that might lead to identifying Baby A and Baby B and their mothers.
She imposed a ban "on all sections of the print and broadcasting media" and anyone having notice of the court's directions restraining them similarly by order of the court from publishing any names or information likely to identify the babies or their mothers.
Mrs Justice McGuinness explicitly banned all sections of the media, with the exception of The Irish Times, from publishing the name of the pregnancy counselling agency, either now or after the expiry of the stay granted for appeal purposes.
She accepted undertakings from Mr Donal O'Donnell SC, counsel for The Irish Times, and Mr Kevin Feeney SC, on behalf of the Irish Independent, that their clients would not seek to contact either of the mothers of the babies concerned or any member of their families and banned all other sections of the media from attempting to contact them.
Mr O'Donnell, who appeared with Mr John Gleeson, said The Irish Times had on Monday evening given notice to the court of its intention to seek leave to publish limited information relating to identifying only the name of the adoption agency involved in the proceedings.
He opposed the application by Dr Michael Forde SC, counsel for the pregnancy counselling agency, for an order restraining anyone from publishing any further matter on the case and also his application for a "blanket gagging" of the media reporting matters before the court which did not identify the babies concerned, their mothers or their families or a doctor involved in the case.
Mr Kevin Feeney SC, for the Irish Independent, told the court, his client did not accept that the Irish Independent had breached the terms of Ms Justice Laffoy's order in identifying the pregnancy counselling agency involved or in naming the individuals concerned with it. Their interpretation of the order indicated to them they were prohibited from publishing the name of the doctor involved and gave a further undertaking that the doctor's name would not be published.
Mr O'Donnell said the contention by Dr Forde that publication of any further information on the case should be banned, touched on the exercise of two material constitutional rights - the freedom of expression and the obligation that justice should be administered in public, otherwise than as limited by law.
"I don't think it is sufficient to throw the cloak of minors [child identification protection] matters over what in my case is liberty to identify one party, an agency which isn't a minor," Mr O'Donnell said.
He said The Irish Times was seeking leave to publish a single piece of information and, following Ms Justice Laffoy's judgment, he accepted he needed the leave of the court to do so. His client was not seeking leave to identify any party or publish information that might lead to the identification of any of the children concerned or their mothers.
The information The Irish Times sought to publish had already twice been published, and not by his client. The court had to take account of the fact that the particular information was already in the public domain and a refusal to allow The Irish Times to disseminate or publish the name of the pregnancy counselling agency could result in misinformation, gossip and rumours.
Mr O'Donnell said it was a very remote possibility indeed that the disclosure of the name of the agency could lead to identifying the child concerned. The party principally seeking to avoid disclosure was somebody who sought to shield themselves behind the necessary anonymity of the child.
There was a vital public interest involved which would require disclosure of information which did not directly implicate the child at all. The Irish Times had come to court on Monday with notice of its intentions and had withheld publication of the agency's name. Because the information was now in the public domain, a refusal of his client's rights to publish would not be to maintain confidentiality or keep the name of the agency a secret; it would cause confusion, gossip and rumour. Mr O'Donnell said that when a court characterised behaviour as inappropriate and reprehensible, as Ms Justice Laffoy did in relation to the counselling agency in this case, it was a matter of which the public was entitled to be apprised. That in itself was in the public interest. But there was the co-ordinate public interest of those people consulting the Golden Pages and seeking pregnancy counselling services.
All other pregnancy consultancy agencies were left with the shadow of "is it them?" hanging over them. Was every other agency expected to come out and state "it is not us?" They had the legitimate interest in not being the subject of unwarranted speculation.
There was the public interest in the nature of the services now being provided in crisis pregnancy counselling. It would be in the highest degree undesirable for persons in that situation to find themselves under enormous strain and seeking advice and help and have the added difficulty placed in their way of wondering was such and such the agency involved. Mr O'Donnell said the inevitable consequence must be to discourage somebody from seeking counselling. It was very hard to see how that limited piece of information, the name of the agency, could not be published in the interests of truth.
Mr Felix McEnroy SC, for the Eastern Health Board, said that while Mr O'Donnell asserted a very important public interest, that interest of freedom of expression had to take second place to the welfare of the child. The sole concern of the health board was to protect the identity of the children and ensure that information capable of identifying them was not published.
Dr Forde said the "story in the public domain" was not a story. It was a tragedy becoming a greater tragedy for the mother and family in question. Every extra piece of information published brought them further down the slippery slope of, bit by bit, leading to the identification of the children concerned.
Mrs Justice Mc Guinness said she had to accept that wrongfully and undesirably through the action of the Irish Independent, circumstances had changed and the name of the agency was now in the public domain.
While not condoning the action of the Irish Independent nor prejudging the issue of contempt of court, she felt the court ought to permit The Irish Times to publish the limited information it sought to do, but only the name of the agency concerned.
"I am to some extent swayed by the rights and needs of the other agencies in this field and all women in crisis pregnancies seeking counselling and assistance."