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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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