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GAZETTE
SEPTEMBER 1979
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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