An application was taken by the Child and Family Agency (CFA) in relation to a breach of section 31 of the Child Care Act 1991. This legislative provision prohibits the publication or broadcast of any matter likely to lead members of the public to identify a child who is or has been the subject of child care proceedings.
The proceedings began with an application by the mother’s solicitor for the judge to set aside the provisions of the 1991 Act and allow the proceedings to be heard in a public court, citing the EU Charter on Fundamental Rights. This application was refused. The judge said she was satisfied that it was in the best interests of the child “who was at the heart of the case” that the proceedings not be heard in public and that section 29 of the 1991 Act was compatible with section 24 of the EU Charter. The hearing of two other applications made on behalf of the mother (relating to section 47 and section 22) were adjourned to a later date.
The CFA set out their application that section 31 was breached by the mother of a child in care. The mother was present in court and legally represented and the judge was satisfied to accept jurisdiction on the matter. The child whose identity had been made public was of primary school age and had been in care for nearly ten years. The child entered care under a voluntary agreement but later a section 18 care order had been secured in respect of the child.
Counsel for the CFA set out that the mother had posted material on her Facebook Page and on a subsequent date she had posted material on her Twitter account. The material was also posted on YouTube but this was not submitted as evidence as that link no longer worked. The material under discussion during the hearing was a video of the mother talking, which had been posted live, an audio recording of the mother talking to a CFA social worker and a collage of photos. Each of these identified the child as a child in the care of the State. Counsel for the mother argued that it was a malicious prosecution by the CFA.
The child’s social worker gave evidence that once her attention was drawn to the social media material she watched it and sought to save the material to her own device. The videos and screenshots of photos she saved were presented to the court as evidence and a transcript of the video was also provided as a support to the court. The social worker testified that the Facebook page in question contained a photo of the mother and that this account was public so could be viewed by anyone. She gave evidence on the level of social media engagements relating to the post which included over 200 responses, over 180 comments and over 70 shares.
The video posted by the mother was played in full for the court. In the video the mother stated that: “What I’m about to do will put me in prison” and that she had thought “long and hard about it”. In the video the mother made allegations that her child had been abused by the foster carer. Several allegations were made in the video recording about the behaviour of the foster carer towards her and the child and about specific incidents and conversations. The video included the playing of an audio recording of a telephone conversion between the mother and a CFA social worker. During this telephone call, the mother made allegations about a poor level of care being provided by the CFA to her child, that the CFA had not visited the child and that the local office was not adequately staffed.
In the video, the mother said: “Your kids are being abused” and said her child’s case was “not an isolated case”. She urged people to “stand up for your children”, saying “this is the mafia we are dealing with”. She called on people to “unite for the children”. She said her family was being torn apart “for money”. She acknowledged that: “I just broke the in camera rule and if I have to take the rap for it that’s okay”. She said the mainstream media will not cover the story. She called for people to text the media and politicians.
The mother pledged to continue until her child was returned to her. During the video recording, the mother disclosed the child’s full name and age, the names of the foster carers and the names of CFA social workers.
The social worker also provided evidence of the Tweet sent by the mother which was linked to a video. The Tweet had been retweeted and liked. In this video, the mother again named the child and acknowledged that she had broken the in camera rule. She repeated many of the same allegations against the foster carer and the State’s treatment of children in care as in the first video.
The social worker gave evidence that she had viewed a video posted to YouTube which contained a college of photos set to music. The social worker did not record the video but took screen shots of the photos which included photos of the child and mother.
Counsel for the mother cross-examined the social worker and argued that there was no evidence of live links to substantiate the evidence. The social worker said she liaised with CFA legal services who engaged with the social media companies to organise that the posts be taken down. The accused declined her right to give evidence and did not call any witnesses.
The social worker acknowledged that the mother had promptly taken down the material when requested and that the relationship between the mother and the CFA was much improved in the past few months and that slow progress was being made on communication between the mother and her child. Counsel for the mother said there was a new level of trust between her client and the CFA.
Counsel for the mother made an application for bail if a custodial sentence was to be handed down. The judge found a breach of section 31. She said section 31 as an “extremely important section” of the Act and commented that at the time of its enactment broadcast media was not at the level it was now where it can circulate instantly. She said the purpose of the section was to protect the interests and identity of the child. She recognised that the child participates in society (home, school, clubs etc) and that where their identity as a child in care becomes known this can lead to enormous trauma for the child. She said children were extraordinarily proficient with social media platforms and were interested in being liked and being popular.
In relation to the offences which arose in this case, the judge said it was extremely concerning that the mother acknowledged that she was breaking the in camera rule and would go to prison, this indicated mens rea and actus reus. Despite that insight she continued to breach the in camera rule, the judge commented.
The judge said the mother had no regard to actual impact of these publications on the child. She said the child privacy had been “grossly interfered with”. In relation to the allegation made by counsel for the mother that the CFA’s application was “malicious”, the judge said the CFA are subject to scrutiny of the court.
The judge said the court must vindicate the rights of the child who was the subject of a care order. She found that the mother had acted with “clear and deliberate knowledge” and the court had no option but to impose a custodial sentence.
The mother was convicted on each of the three counts and sentenced to two months’ detention for each count to run consecutively. The following bail conditions were set down: that the mother was not to publish or broadcast any material in relation to the child; the Child and Family Agency; or that day’s judicial proceedings. The mother was released on her own bond.
