The Gazette 1979

SEPTEMBER 1979

GAZETTE

1908 Act. That Section empowers a District Justice to issue a warrant for the removal of a child to a place of safety where there is reason to suspect that the child has been assaulted, ill-treated or neglected in a manner likely to cause him/her unnecessary suffering or to be injurious to his/her health. You will note that at this stage it is only necessary for the District Justice to be satisfied that there is reason to suspect there was or is assault, ill-treatment or neglect. The warrant may be applied for on an 'ex parte' basis. To support an application for it, a social worker or other person swears an information setting out the facts which justify such belief. If a child is removed to a place of safety pursuant to such a warrant a summons must then immediately be issued seeking what is known as a Fit Person Order. On the hearing of that summons it must be proved that the child was assaulted, ill-treated or neglected in a manner causing unnecessary suffering or likely to be injurious to health. These are positive terms and the evidence must be sufficient to establish the assault, ill-treatment or neglect. When the 1908 Act was drafted the terms were almost certainly contemplating physical acts towards the child and therefore they do not really allow for a case in which a child may be emotionally rather than physically ill- treated. Fortunately, District Justices accept that a child can be severely damaged by emotional ill-treatment but the proof of this is obviously more difficult than proof of physical ill-treatment, of which there may be evidence of bruising or other more serious injury to the child. Procedure under Section 58: The third procedure I propose mentioning is available under Section 58 of the 1908 Act. It provides a number of grounds on which a Fit Person Order could also be made. The ground I customarily use is that the child has been found having a parent or guardian not exercising proper guardianship. That is a more general ground and more apt to cover cases in which children are being ill- treated in a way which would not come within the narrower definitions of assault, ill-treatment or neglect which are the grounds referred to in Section 24. The Section 24 grounds normally involve wilful acts on the part of the parents or guardians. The Section 58 ground would not necessarily require this. For example, I had the case of a mother who was mentally under-developed. Though she was over 20 years of age she herself only had a mental development of a child about half her actual age. Within her limitations she looked after her child as best she could. In practice she was like a young child playing with a doll. When she was in the mood she looked after the baby reasonably well. But when her interest flagged, as it frequently did, the child was left aside for long periods, unattended to, unfed and even left out in the rain. In that case the Court upheld my contention that the mother was not exercising proper guardianship even though she could not be culpably held in default because of her own under-developed mental state. Getting a Child to Court: Under both Sections 24 and 58 it is legally necessary to have the child present in Court when a Fit Person Order is being applied for. That poses a problem when the child is still in the parents' custody and they are unco-

operative. The section 24 procedure for applying for a warrant to remove a child to a place of safety has then to be invoked to try to get the child away from the parents and into third party care pending the child being brought before the Court. But that has the limiting effect that the application must be sought on the specific ground of assault, ill-treatment or neglect. If the child has already come into the actual custody of a third party (for example, if detained in hospital as a result of injury or has been voluntarily surrendered into care) the more flexible Section 58 procedure can be followed. Evidence required to prove ill-treatment of a Child While it is relatively easy to get a warrant under Section 24 to remove a child to a place of safety, the hearing of an application for a Fit Person Order (whether under Section 24 or Section 58) must be backed up by positive evidence conforming to the Rules of Evidence. This can pose a serious problem. The ill-treatment of a child is seldom done in front of witnesses so there is an obvious difficulty of getting direct evidence. Information may be available from neighbours which clearly points to the fact that a child is being ill-treated but that is hearsay. Neighbours will talk to social workers in the interests of the child but they usually do not want to be involved beyond that. One could compel their attendance at Court through witness summonses but there is the risk that they will then "clam up", to use a colloquialism, and their evidence may not be sufficient. Public Health Nurses normally get ready access to most households in the course of their normal community care duties. They have a better opportunity than most people of seeing signs within the home indicating a child is being ill-treated. However, even if they are in a position to furnish evidence usable in Court it is preferred to avoid calling them as witnesses. If they are seen to appear as witnesses in support of applications to have children taken away from their parents they will be regarded as part of "the Establishment" and there would be a high risk that doors would be closed against them in the future. Difficulty can arise even where there is medical evidence of physical injury to a child and the parents themselves have brought the child to hospital for medical attention. The parents may offer a plausible explanation claiming the injuries were caused in some accidental way. The social workers and the doctor concerned in the case may be satisfied in their own minds (having regard to the surrounding circumstances of the case) that the injuries were inflicted on the child. Nevertheless, when he comes to give objective evidence, the doctor may have to acknowledge that genuine accidental cause cannot be completely ruled out. The court then has to weigh up all the evidence and decide whether or not to accept the parents' explanation of accidental cause. There is also a problem that one cannot ask the Court to anticipate something even though there may be a definite risk that it is going to happen. Let me explain this point by a practical example. I had a case in which I was consulted one September about a child who had been assaulted by his parents. The assaults had occurred in the early part of the year and positive evidence of injury had been found by a doctor in February. An arrangement was then made that the child would be voluntarily placed in the care of grandparents with whom he remained until the time I was consulted.

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