The Gazette 1980

GAZETTE

SEPTEMBER 1980

enable him to issue a warrant, it is only necessary that the Justice is satisfied that there is reasonable cause to suspect that the child or young person has been or is being assaulted, ill-treated or neglected in the manner specified in the section or that an offence has been committed. These things do not have to be proved as positive facts at that stage. That is reasonable for the aim is to get the child away to a place of sofety if there is reason to suspect he is at risk so as to protect him until the case can be further gone into. An application for a warrant is made ex parte. An information is sworn, normally by a social worker. I consider that the strict rules of evidence do not apply at this stage so that the informant can simply refer to information stated to have been received from other sources if the informant cannot give direct evidence of seeing any assault, ill-treatment or neglect. If the Justice is satisfied he then issues a warrant. This is pre-prepared so that if the application is granted the warrant can then be handed in and signed immediately. It is normally addressed to the Garda Superintendent for the district wherein the child is. I once ran into trouble over a form of warrant I had then been using. Using some of the wording out of the first part of the concluding paragraph of section 24(1), the warrant authorised the garda to search for the child and, if he was satisfied that he had been or was being assaulted, ill-treated or neglected, then to take him and detain him in a place of safety until he could be brought before a court of summary jurisdiction. For quite a few cases everything worked smoothly as the garda was normally satisfied by the evidence in the information of the social worker that the child had been assaulted, ill- treated or neglected. Then I ran into a snag in which a very conscientious garda inspector went to execute the warrant. All was quiet in the house in question when he arrived and there were no signs visible to him that the child had been ill-treated in any way. He took the view that unless he saw signs of ill-treatment himself he was not entitled to take the child pursuant to the warrant and he declined to do so in that particular case. Need I say that this touched off a hasty review of the wording in the standard form of warrant I was then using. I noted that in the section in question it was provided that the Justice could, in the alternative, simply authorise a garda to remove the child or young person and detain him. In other words, the Garda would then have to do no more than take the child away. I promptly reworded the standard form of warrant and have been using that ever since. But I am particularly careful when drafting the information in the first instance to ensure that it sets out good grounds on which a Justice might reasonably issue a warrant for the immediate taking of the child and removing him to a place of safety. Rule 12 in the 1909 Rules requires a summons to be taken out immediately after a child has been taken into care on foot of a warrant. And 'immediately' means just that — as quickly as possible. In one case 1 had which was challenged in the High Court the summons had been delayed as there was hope of some compromise on the custody of the child being worked out with the parents. No compromise was agreed and the summons was issued some weeks later. In the High Court proceedings which followed the point was taken that because a summons had not issued immediately after the warrant was executed,

the child was being detained illegally. That case was settled before going to full hearing so the legal point in issue was not decided. Under Rule 12 in the 1909 rules the informant in the information must be named as the complainant in the summons. I consider it would be much more appropriate to have an application for a warrant made on behalf of a health board or other child care agency and for the proceedings to be continued in the name of the board or agency. The naming of a social worker as the formal complainant could be prejudicial to that worker's future relationship with the parents. While it is easy to make a valid case in an information that there is reasonable cause to suspect a child has been assaulted, ill-treated or neglected one has to face up to the necessity of later establishing, as a question of fact, that there was assault, ill-treatment or neglect. At that stage one can no longer rely on hearsay evidence. One must have positive evidence. That is not always easy to obtain in the form of admissible evidence. When the 1908 Act was being drafted I am sure that the terms 'assault', 'ill-treatment' and 'neglect' referred to actual physical acts. Seventy years later we are now only too well aware that a child can be emotionally battered and that that can be as serious as physical battering. I am happy to say that district justices follow the normal judicial rule of interpreting old statutes in such a way that the language can be adapted and made to work in present- day circumstances. Accordingly, emotional battering is recognised as a form of ill-treatment or neglect and thus within the ambit of section 24. Needless to say, it can be more difficult to prove than physical acts against a child of which one normally more easily gets visible evidence. A 'fit person' is defined in section 38(1) for the purposes of part II of the Act as including any society or body corporate established for the reception or protection of poor children or for the prevention of cruelty to children. A Fit Person Order is normally granted until the child attains sixteen years of age and has the effect of giving the fit person die legal custody and control of the child. The Order provides for the child's being in care until he attains sixteen years of age 'unless the Order is sooner revoked or varied'. These qualifying words have been deliberately put in to my standard form of Order to allow for the possibility that before the child attains sixteen years of age the home conditions may have improved to such an extent that the child can then go home permanendy. In that event an application can be made to the court to vary or revoke the Order. There is one absurdity in this form of Order. Following the wording of the section it speaks of the jusdce as being empowered to commit the child to a fit person in lieu of sending him to an industrial school. Isn't it totally unrealistic when dealing with, as so often happens, a baby or very young infant to refer to the possibility of his going to an industrial school? As a concluding comment on section 24 I mention that in the second stage of action under it, it provides for bringing the child before the court after he has been removed to a place of safety. That must be followed and the child must be physically present in court for the application for the Fit Person Order. Section 58 Section 58 of the 1908 Act provides other grounds for

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