The Gazette 1979

GAZETTE

SEPTEMBER 1979

The Child and the Law — The practising lawyer's viewpoint

By Denis Greene, Solicitor

(Paper read to Law Society Seminar on "The Child and the Law" on 15th September 1979).

parents as human beings who may themselves be problem people in need of help. The basic Act under which social work agencies and social workers have to act in the interests of children at risk is the Children Act 1908 ("the 1908 Act"). It is primarily concerned with offences against and by children. The social work agencies as we know them today, which are concerned with the social aspects of problem families and the protection of children at risk, did not exist in 1908 so it is not surprising that the steps available under the 1908 Act to protect children are not in accord with modern social work needs. Time does not permit me to analyse the 1908 Act in detail so I will limit myself to touching briefly on three procedures which are the ones most readily available when action is required to protect children. Procedure under Section 20: Section 20(1) of the 1908 Act reads: "A constable, or any person authorised by a Justice, may take to a place of safety any child or young person in respect of whom an offence under this part of this Act, or any of the offences mentioned in the First Schedule to this Act, has been, or there is reason to believe has been, committed". The Section then goes on to provide that a child may be detained until he can be brought before a Court of summary jurisdiction. The Section further provides that the Court may make an Order dealing with the child as the circumstances may require until a reasonable time has elapsed for a charge to be made against the person committing the offence and, if a charge is brought, until it has been determined by the conviction or discharge of the person. If the charge is dismissed or is dropped the Order affecting the child then lapses. In brief, therefore, this Section is really only providing for the holding of a child while consideration is given to the bringing of a criminal charge against a person committing an offence against the child and, if a charge is brought, until it is disposed of. Section 20 of the 1908 Act is of value in providing a means for securing the immediate temporary protection of a child against whom an offence has been committed. But the Section does contemplate that there may or will be a criminal prosecution in respect of the offence. If a parent or guardian is the party who has committed the offence a criminal prosecution may only add to the difficulty of trying to deal with a disturbed home background out of which the offence has arisen so Section 20 provides a remedy of only limited value.

Though this paper is, for the most part, based on experience of cases in which I have acted as Law Agent to the Eastern Health Board I speak in my personal capacity as a solicitor in private practice and die views expressed are personal ones. When one hears of violence done to a baby or young child it is easy to react emotionally and feel that the battering parent or other adult responsible should be treated with the utmost rigour that the law allows. Unfortunately, it is a sad feature of these cases that violence in the home can be handed down from generation to generation. One would think that a battered child, when grown up and becoming a parent, would avoid the very thing that caused such suffering to him/her in childhood. Yet experience shows that a battered child can, in adulthood, become a battering parent. One must remember that in these situations we are dealing with problem people and that invoking the sanctions of the criminal law is not the best way of trying to improve the home conditions. As an indication of the background in many cases of child violence I quote from a book "Web of Violence" 1 by J. Renvoize, Ruttledge, 1978, which is a survey of a lot of the research work done by various people and agencies on the subject of violence in the home. The quotation reads: "To sum up, most battering parents are inadequate, self-defeating, introverted, immature people who need love but find difficulty in giving it; who want gratification for their impulses now, not next week; who often love their children and show great concern for them but whose live is inconsistent and incapable of standing up to the stresses life can inflict; who in a few extreme cases hate their children or are totally incapable of ever rearing a child satisfactorily and from whom the children must be taken. Frequently clinically neurotic or depressed, they usually have a poor sense of identity and very little self-esteem, and live isolated lives (particularly the mother). Although they yearn to behave differently they cannot help inflicting on their own children their own style of upbringing. Finally, frustrated in their life-long desire to be loved and cherished, they nurse bitter anger along with their guilt, hidden from authority with whom they still (how well the lesson has been learned) attempt to appease". Given that background you will appreciate more fully my point that we are dealing with problem people and that invoking the sanctions of the criminal law is not the best way of dealing with them. A natural urge to be angry with defaulting parents must not be allowed to displace the necessity to see the

Procedure under Section 24 The next relevant procedure is under Section 24 of the

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