District Court grants supervision order but refuses HSE directions due to disproportionate criminal sanction risk.

[2011] IEDC 2

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

L&O

RESPONDENTS

CHILD CARE ACT 1991— SECTION 19

IN THE MATTER OF CHILD 1, CHILD 2, CHILD 3, CHILD 4, CHILD 5, AND CHILD 6

13 January 2011

1. This is an application by the HSE for a Supervision Order pursuant to section 19 of the Child Care Act 1991 (“the Act”), the

relevant parts of which are as follows:

“(1) Where, on the application of the Health Service Executive with respect to a child, the court is satisfied that

there are reasonable grounds for believing that—

(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused, or

(b) the child’s health, development or welfare has been or is being avoidably impaired or neglected, or

(c) the child’s health, development or welfare is likely to be avoidably impaired or neglected,

and it is desirable that the child be visited periodically by or on behalf of the Health Service Executive, the court

may make an order (in this Act referred to as a “supervision order”) in respect of the child.

(2) A supervision order shall authorise the Health Service Executive to have the child visited on such periodic

occasions as the Health Service Executive may consider necessary in order to satisfy itself as to the welfare of the

child and to give to his parents or to a person acting in loco parentis any necessary advice as to the care of the

child.

(3) …

(4) Where a court makes a supervision order in respect of a child, it may, on the application of the Health Service

Executive, either at the time of the making of the order or at any time during the currency of the order, give such

directions as it sees fit as to the care of the child, which may require the parents of the child or a person acting in

loco parentis to cause him to attend for medical or psychiatric examination, treatment or assessment at a hospital,

clinic or other place specified by the court.

(5) Any person who fails to comply with the terms of a supervision order or any directions given by a court under

subsection (4) or who prevents a person from visiting a child on behalf of the Health Service Executive or who

obstructs or impedes any such person visiting a child in pursuance of such an order shall be guilty of an offence and

shall be liable on summary conviction to a fine not exceeding £500 or, at the discretion of the court, to

imprisonment for a term not exceeding 6 months or both such fine and such imprisonment.

(6) A supervision order shall remain in force for a period of 12 months or such shorter period as may be specified in

the order and, in any event, shall cease to have effect when the person in respect of whom the order is made

ceases to be a child.”

2. The application is for a Supervision Order in respect of the six children of the respondent parents. The children range in age from

mid teens to infants. The application is for an order for a period of 12 months. The HSE also applies for directions to be given

pursuant to section 19(4) of the Act as follows:

a) that the parents should not use physical discipline on their children;

b) that the parents will co-operate with the social work department during the assessment process; and

c) that the social work department be allowed to interview the four older children, and that they be interviewed on

their own.

3. The application first came before the Court on 2 December 2010. On that date, both parents were in Court and were

unrepresented. The case was adjourned to 16 of December 2010, to allow the parents to seek legal advice and representation. The

Court urged the parents to obtain such representation. The applicants requested that the adjournment would be conditional on the

parents giving an undertaking not to use physical discipline on their children. Both parents indicated their unwillingness to give such

an undertaking. The Court declined the applicant’s request

4. On 16 of December 2010, the father was in Court and unrepresented, the mother was not present due to illness. The Court offered

to adjourn the matter again, to allow mother to attend and to allow further time for the parents to secure legal representation. The

father clearly and categorically stated that he and the mother wanted the hearing of the matter to proceed on that day, and did not

wish to adjourn the matter any further, either to secure legal representation or otherwise. The matter proceeded to hearing.

5. The principal of the school which is attended by the 3rd and 4th child gave evidence that, on or about 31 October 2010 or 1

November 2010, the 3rd child (aged 8) had reported being beaten at home. The principal confirmed that the child had used the word

‘beaten’. He said that this word as used by the child did not necessarily impute any particular level of violence. The school spoke to

the child, and to the parents. The school notified the HSE of the report received from the child.

6. In accordance with the statutory role of the HSE in child welfare matters, the social workers involved contacted the parents. The

parents confirmed to the social workers that they impose physical discipline on their three older children. The social workers requested

the parents’ agreement that they would not in future impose physical discipline on any of their children, and the parents refused that

request.

7. The father gave evidence that he and his wife impose physical discipline on their older children (including the child who had

reported to the school). He described the physical discipline imposed as consisting of striking the child on the hand with a folded belt.

He demonstrated the striking action involved, which consisted of raising his forearm through up to 90°, and then bringing down the

belt with a quick movement to strike an outstretched hand. It was agreed that he had described and demonstrated this to the social

workers when he had discussed the matter with them. He further stated that his children might also be required to kneel with

outstretched hands as a form of punishment.

8. The father stated that he and the mother impose physical discipline to discipline their children, and that it is only used when other

methods have failed. The other methods used are to speak with the children regarding their behaviour or misbehaviour, to deprive the

children of treats or television, or similar non-corporal punishment. It is only when those other methods fail that the physical discipline

described is imposed. While physical discipline is not the first or only method employed by the parents in disciplining the children,

neither is it very unusual for it to be imposed. The type of behaviour which the father described as attracting the various methods of

discipline including physical discipline was described as ‘bold’. While I accept that this description is very broad, no extraordinary

behaviour or misbehaviour was described. Both parents approve of and support the methods of imposing discipline including physical

discipline, although only the respondent father carries out the physical discipline. Both parents are non-nationals of similar ethnicity.

The father stated that in the culture in which the parents were raised, physical discipline of the type imposed by them was and is the

norm.

9. One of the social workers dealing with this matter on behalf of the HSE gave evidence. He stated, in his professional opinion, that

physical discipline such as that described by the father is harmful to children and that the fear and humiliation that results from such

physical discipline has the potential to cause both short and long term distress and difficulties for the children that far outweigh the

benefits (if any), such as control or elimination of misbehaviour, that might be perceived to flow from such physical discipline. Without

going into any great detail, he stated that there is a wide body of expert opinion that supports his opinion. He referred to the banning

of corporal punishment by parents in 16 European states. He expressed his personal view that all corporal punishment of children by

parents constitutes ill-treatment. He said that in his professional opinion, the corporal punishment actually imposed by these parents

on their children constitutes ill-treatment.

10. The HSE submitted that the corporal punishment imposed by the parents on the children constitutes ill-treatment and that on the

basis of the evidence the Court should be satisfied that there are reasonable grounds for believing that the children have been ill-

treated and that their health, development, or welfare has been, is being or is likely to be avoidably impaired by the imposition of such

corporal punishment. The HSE further submitted that it was not necessary for the Court to find that any and all corporal punishment

constitutes ill-treatment; rather, that the corporal punishment that actually occurred constitutes ill-treatment.

11. While the father did not make any formal submissions, he clearly expressed the view that the corporal punishment imposed by the

parents on the children is lawful, legitimate, proportionate, and acceptable. He further contended that it does not constitute ill-

treatment and that the Court should not be satisfied that the grounds for granting a Supervision Order exist. He expressed the view

that rather than being of any benefit to the children, the making of a Supervision Order and the consequent involvement of the HSE

with his children would destabilise the family.

12. It appears that in a prosecution of a parent for assault of his child, the defence of reasonable chastisement may be raised. In A v

UK (1999) 27 EHRR 611 (which case was referred to by the HSE solicitor in her submissions as dealing generally with the issue of

corporal punishment by parents), it appears that the UK courts had accepted this defence, where a stepfather imposed corporal

punishment on a child, which was considerably more severe than that imposed by the parents in this case. It appears that such a

defence may be raised in this jurisdiction in respect of such a charge. If the parents in this case were to face a criminal charge in

respect of the corporal punishment imposed by them on their children, such a defence might be raised and might succeed.

13. I am satisfied that it is not necessary that an action be criminal in order for it to constitute ill-treatment for the purposes of part

III of the Act, and in particular section 19. Ill-treatment is not defined in the Act. In A v UK, the court refers to what constitutes ill-

treatment for the purposes of Article 3 of the ECHR. While not making any finding under the ECHR, I have adapted what is contained

at paragraph 20 of the judgment in A v UK to define what treatment might constitute ill-treatment per se, in that the treatment must

reach a minimum level of severity, that the assessment of this minimum level is relative, and that it depends on all the circumstances

of the case, such as the nature and context of the treatment, its duration, its physical, its mental effects, and in some cases the

sex, age, and state of health of the victim.

14. For the purposes of this decision, I am adopting as a definition of corporal punishment the definition quoted in the report entitled

Parents’ Perspectives on Parenting Styles and Disciplining Children published by the Office of the Minister for Children and Youth

Affairs in 2010, where corporal punishment is defined as

“an action taken by a parent … that is intended to cause physical pain or discomfort to a child. It is the application

of punishment to the body”.

I also note the reference quoted in the said report to mild and severe corporal punishment as follows:

“[m]ild corporal punishment was defined in these studies as smacking, pinching or hitting, slapping on arm, leg, hand

or buttocks; did not involve the use of implements; no physical injury sustained. Severe corporal punishment was

defined in these studies as repeated, prolonged, or involving the use of implements; causing likely or actual harm;

punching, kicking, shaking, knocking down, burning, scalding, threatening with a knife or gun.”

15. I accept the contention of the HSE that corporal punishment may cause both short and long-term distress and difficulties for

children that far outweigh the benefits (if any) that might flow from its imposition. The likelihood of such adverse effects on the

children put it seems to me be likely to be increased by the severity of the punishment imposed.

16. I accept that the parents in this case impose corporal punishment on their children in the genuine belief that it is a proper method

of disciplining their children and that it is for the children’s benefit. I accept that the parents have a strong sense of family and of the

family unit. I have no doubt that they love their children, and that their motivation in imposing corporal punishment is what they see

as the children’s best interests.

17. I do not seek to set any particular threshold as to what forms of corporal punishment might constitute ill-treatment. I am,

however, satisfied that in the context of this case, having regard to the age of the children, the physical effect of the corporal

punishment described including the pain or discomfort caused, and its frequency, and the use of an implement, taken together,

exceed the threshold and therefore constitute ill-treatment. It follows, therefore, that reasonable grounds exist for believing that the

children have been ill treated and that there health development or welfare has been, is being or is likely to be avoidably impaired or

neglected.

18. Having made that finding, the Court must then consider whether it is desirable that the children be visited periodically by or on

behalf of the HSE. The father is very much opposed to this, for the reasons set out in his evidence. The making of a Supervision

Order, with its compulsion to accept visits, is a matter that may cause considerable tension in the family, and may certainly be

perceived to have an adverse effect on the stability of the family. Nevertheless, resulting from the finding of ill-treatment, I find that

it is desirable that the children be visited periodically, and I would, therefore, exercise the discretion to make an order.

19. The HSE has requested that the Court give directions pursuant to section 19(4) of the Act, in the following terms:

• That the parents will not use physical discipline on their children;

• That the parents will co-operate with the social work department during the assessment process; and

• That the social work department be allowed to interview the four older children, and that they be interviewed on

their own.

20. Any person who fails to comply with the terms of a Supervision Order or any directions given by a court under section 19(4) is

guilty of an offence, as set out in section 19(5).

21. There are a number of sections of the Act which provide for the giving of directions, including section 13(7), section 17(4),

section 18(6), and section 23C (4). These sections, which are variously worded, apply to children who are the subject of emergency,

interim or special care orders, or “full” care orders. There is no offence created by any of those sections of failure to comply with the

terms of any directions made.

22. Section 47 of the Act applies to all children who are in the care of the HSE, either on a voluntary basis or by virtue of any type of

care order. Section 47 provides as follows:

“[w]here a child is in the care of the Health Service Executive, the District Court may, of its own motion or on the

application of any person, give such directions and make such order on any question affecting the welfare of the

child as it thinks proper and may vary or discharge any such direction or order.”

There is no offence created of failure to comply with the terms of any direction made pursuant to section 47.

23. As regards the giving of directions, section 19 differs from the other sections of the Act which contain a power to give directions,

in that section 19 alone allows directions to be given where a child is not in the care of the HSE, and in that section 19 alone creates

a criminal offence of failing to comply with the terms of the supervision order or any direction given.

24. The wording of section 47 and section 19(4) differs considerably. While section 47 provides that: “the District Court may … give

such directions and make such order on any question affecting the welfare of the child as it thinks proper” (emphasis added), section

19(4) provides that: “a court … may … give such directions as it sees fit as to the care of the child” (emphasis added).

Section 19 (4) also contains a sub-clause, which provides that such direction:

“may require the parents of the child…to cause [the child] to attend for medical or psychiatric examination,

treatment or assessment at a hospital, clinic or other place specified by the court.”

Section 47 does not contain such a sub-clause.

25. Directions under section 47 may be given by the Court on its own motion or on the application of any person, whereas directions

under section 19(4) may only be given on the application of the HSE. [The meaning of this part of section 19(4) is not entirely clear

— a literal reading would seem to be that the Court can make such directions as it sees fit if and only if the HSE makes an application

for directions, but that if the HSE makes any application for any directions, the Court is “at large” to make any direction it sees fit.

For the purpose of this decision, I am simply dealing with the directions that the HSE has applied for, and I do not intend to make any

other direction.]

26. The first direction sought by the applicant is, “that the parents should not use physical discipline on their children”.

Such a direction would have the effect of making it an offence for the parents to impose any corporal punishment on the children,

and might thus criminalise behaviour by the parents which might not otherwise constitute an offence. If the direction sought were

‘not to repeat the physical discipline previously imposed’, it might even then criminalise behaviour by the parents which might not

otherwise constitute an offence.

27. The second direction sought by the applicant is, ‘that the parents will co-operate with the social work department during the

assessment process’.

Breach of this direction would criminalise behaviour which would not otherwise constitute an offence. It is undoubtedly true that the

HSE has a statutory duty to investigate and assess all reports that it may receive regarding child protection matters, and in general

assess whether children are receiving adequate care and attention. It has at its disposal all the resources of a public body and such

powers as it may have by virtue of statute or otherwise. It has the power to visit the children in accordance with the order that is

being made today, which will assist in any process of assessment. It also has the power to “give to [the] parents …any necessary

advice as to the care of the child”.

28. The third direction sought by the applicant is, “[t]hat the social work department be allowed to interview the four older children,

and that they be interviewed on their own” (“on their own” means in the absence of their parents).

The making of a supervision order in itself, per section 19(2) “authorise[s] the Health Service Executive to have the child visited … in

order to satisfy itself as to the welfare of the child”.

This is the essence of a supervision order, to authorise the HSE to do what it would not otherwise be authorised to do. If the

authority to visit the child “in order to satisfy itself as to the welfare of the child” in itself includes the authority to interview the child

(on his/her own or otherwise), then such a direction is unnecessary. If the authority to visit the child “in order to satisfy itself as to

the welfare of the child” does not in itself include the authority to interview the child (on his/her own or otherwise), then such a

direction would extend the authority of the HSE in relation to its dealings with the child, rather than constitute a direction “as to the

care of the child”. Furthermore, breach of this direction would criminalise behaviour which would not otherwise constitute an offence.

29. Eastern Health Board v McDonnell [1999] 1 IR 174 and Western Health Board v KM [2002] 2 IR 493 describe the Act as a remedial

social statute the construction or interpretation of which should be approached in a purposive manner, and which should be construed

as widely and liberally as fairly could be done. Those decisions give a wide and purposive interpretation to section 47 in particular, and

the power therein to give directions, to give effect to the District Court’s overall responsibility for the child who is the subject of a

care order.

30. By virtue of the different wording of the respective sections, the fact that section 19(4) applies to children who remain in the

care of their parents and are not in care of the HSE, and the fact that breach of a direction given under section 19(4) is a criminal

offence, I am of the view that the power of the court to give directions under section 19(4) is not as wide as that under section 47.

31. While the power of the Court to give directions under section 19(4) is not restricted to the matters contained in the final sub-

clause of that sub-section, nevertheless, that sub-clause informs the type of direction that may be given. I am of the view that in

general directions may be given where their subject matter relates demonstrably and definitively to matters which may have an

immediate and direct effect on the care of the child.

32. I am of the view that because the effect of giving directions may be to criminalise behaviour that does not (or in any event may

not) otherwise constitute an offence, that fairness requires that the power to give directions should be used sparingly, and ought not

make routine social work matters (e.g. co-operation with the social work department) subject to criminal sanction.

33. Even if the Court has the power to give any or all of the directions sought, I would in any event regard the giving of such

directions (and the consequent criminalisation of any breach of the terms of such direction) as being disproportionate in the context

of the facts of this case. I have found that the physical discipline which the respondents have used constitutes ill-treatment for the

purposes of the Act, and grounds the granting of a supervision order. Over and above any other powers that they may have, the HSE

has been given the authority to visit the children for the purposes and in the manner set out in section 19(2). There is no evidence of

breach of or intention to breach the terms of the supervision order granted. If ill-treatment continues to occur, then if it constitutes

a criminal offence it can be prosecuted, and whether or not it constitutes a criminal offence it may ground further applications under

the Act.

34. I make a supervision order for three months from 13 January 2011. I refuse the application for directions.