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GAZETTE
SEPTEMBER 1980
Legal Aspects of Non-Accidental Injury
to Children
DENIS GR E E NE
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
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
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