The Gazette 1980

GAZETTE

SEPTEMBER 1980

Legal Aspects of Non-Accidental Injury to Children

DENIS GR E E NE

surveys research work by various people and agencies on the subject of violence in the home: 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 love 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 chldren 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 lifelong 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 always the best means of trying to deal with them. Prolonged Hi-treatment of children It is horrifying at times to find cases in which it turns out that the ill-treatment of a child has been going on over a period. For example, it has happened on occasions that when a child is being x-rayed for one injury that has come to light, evidence is found that bones or ribs have been broken in earlier incidents and left to heal themselves without medical attention. To focus our minds on what may really happen in a child-at-risk type of case, let me quote, as an example, one of the more serious ones I had to deal with. It came to light following the admission of a child to hospital with serious injuries. A preliminary order to remove the child to a place of safety was obtained to get him out of the custody of his parents. A Fit Person Order (this procedure is explained below) was then applied for so that the child would be committed to the care of the Eastern Health Board. The father appeared in court to oppose the application. He first explained that the incident given rise to the injuries had occurred in circumstances of particular stress, while he was unemployed and the family were living in bad housing; he said that by the time he had got to court his circumstances had improved because he had a job and a good mobile home. In fact he was not telling the truth (as was brought out in cross-examination) because he was employed and in the mobile home when the child was injured. He then went on to explain that the incident had occurred wnen he was upset following a row

Denis Greene is a Dublin solicitor and law agent to the Eastern Health Board. This article is based on a paper he delivered to a seminar of health board officers and legal advisers on 10 October, 1979. Introduction Let me start by defining the objective and, at the same time the limitations of this paper. The primary aim is to deal in a general way with children at risk and some of the procedures available under present legislation whereby action can be taken to protect them. I hope that it will serve to open up a general interest in this subject. In relation to the legislation I limit myself to some comment on the Children Acts. An exhaustive review of those Acts is not possible within the limits of this paper. Priority, therefore, must be given to a consideration of some sections which are of immediate relevance to the taking of action to protect children found to be at risk. Before going into detail about the Children Acts there are a number of preliminary points which can usefully be considered. Children at risk How prevalent is the 'battered baby' type of case and is it found more frequently now than in the past? The only statistics I have to offer are the returns by health boards to the Department of Health given in Appendix 1. I merely make the general comment that while I have acted for the Eastern Health Board and its statutory predecessors for many years, it has really only been in the past decade that I have been called upon to deal with cases involving children at risk. They have increased in number steadily over that period. I cannot say whether this indicates a real increase in absolute terms or whether the frequency of occurrence is no greater than in past years but more cases are being discovered because of the larger number of social workers now working in the community. Possibly both factors are involved. Problem people When one hears of violence done to a baby or a 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 d c v n from generation to generation. One would think that a battered child, when grown up and become 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, therefore, that in these situations we are dealing with problem people and that the full sanctions of the criminal law are not always an appropriate way of trying to deal with them. As an indication of the background in many cases of child violence I quote from a book Web of Violence by Jean Renvoize (Harmondsworth: Penguin, 1979) which

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