Court: ‘Improper Discretion’ In Removing Child

February 7, 2018

[Updated] The police improperly exercised discretion in “deciding to detain” a 3-year-old boy; the Director of Child & Family Services improperly exercised discretion in deciding to seek an emergency protection order, and the Family Court improperly exercised discretion in granting the application for an emergency protection order.

This was the ruling by the Supreme Court in a case brought by parents after officials removed their 3-year-old boy — who is referred to as “X” in court documents — from their care after he suffered an arm injury.

The 3-year-old had “nursemaid’s elbow”, which the physician’s affidavit said “is a common injury in young children which potentially occurs as a result of pulling on the arm. It goes back into place usually pretty easily as in the case of [X] with minor manipulation of the arm.”

Dr. Ranjini Patton also states in her affidavit what she observed on 2nd May 2017 from the little boy’s parents, saying that “They were concerned and interactive appropriately. They were very softly spoken with their son and loving. I did not have any concerns that this child had been abused in any way and indicated this fact when I spoke with Dr. Perinchief”.

However the next day, 3rd May 2017, a call was made to the “Kidsline” at 1:35pm, with someone reporting concern about the child “attending school on 2nd May, 2017 in pain, crying and holding his right arm to keep it immobile”.

The child had been the subject of previous referrals to the DCFS as the “number of reported injuries was considered unusual for a 3-year-old,” however the “outcome of the physical abuse investigation was categorized as unsubstantiated” and the previous case was closed.

According to the Court ruling, the little boy was taken by the police on 3rd May 2017, and he was returned to his parents on 5th May 2017 “as soon as the DCFS were satisfied that the injuries which gave rise to the suspicion of child abuse were consistent with accidental causes.”

“Both parents were clearly upset and distraught with the prospect of having to hand over their child to the authorities,” the ruling notes, adding that the child was taken away from his home, which made him “visibly upset”.

“The removal by a public authority of a child from its family is nevertheless an extreme form of state interference with family life and calls for compelling justification,” the ruling by Assistant Justice David Kessaram states.

The Court’s ruling said, “This case concerns the removal of a three year-old male child [who I shall refer to as “X”] from the care of his parents [who I shall refer to as “Mr. T and Mrs. T”, the Applicants in these proceedings].

“The removal was effected by certain members of the Bermuda Police Service [BPS] on 3rd May 2017 acting pursuant to the powers conferred on them by s. 41 Children Act 1998. The case also concerns the powers and duties of the Director of the Department of Child and Family Services when making an application for an emergency protection order  under s. 39 of the Act.”

The ruling stated, “The circumstances of this case did not in my view warrant the exercise of the powers of the Police under s. 41. I am compelled to find, therefore, that the detention of X by the BPS was an unreasonable exercise of its discretion.”

“There was simply no basis for the Court to find that there was reasonable cause to believe that significant harm would likely be suffered by X if left in the care of his parents,” the ruling said.

“A well meaning but mistaken report is capable of setting in motion [unnecessarily, if care is not taken] the whole machinery of the system designed to protect children,” the ruling notes. “What this case shows, however, is that those built-in checks on a misguided report of child abuse being acted on against a family can also fail.”

Update 12.03pm: Acting Commissioner of Police Paul Wright said, “The Bermuda Police Service [BPS] takes very seriously the important role that it plays in the safeguarding of children.

“The ruling handed down by the learned Judge found that the Department of Child and Family Services made the decision that a young child be removed from the care of his parents for his safety on 3rd May 2017 and relied on the BPS to effect the removal.

“However, the ruling also found that the removal of the young child by the BPS was an unreasonable exercise of its discretion under section 41 of the Children’s Act 1998.

“The ruling is comprehensive and provides important opportunities for learning to be taken up by both the police and the other agencies and entities cited in the decision. The BPS is committed to doing so.

“This will include making an assessment of conduct under the provisions of the Police [Conduct] and [Performance] Orders 2016 as well as providing appropriate training and guidance to ensure that police officers fully understand their powers and obligations under the Act.“

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