In the Matter of H (an Infant)

[1992] TASSC 107

Serial No B30/1992

List "B

COURT:  SUPREME COURT OF TASMANIA

CITATION:              In the matter of H (an infant) [1992] TASSC 107; B30/1992

PARTIES:  IN THE MATTER OF H (AN INFANT)

FILE NO/S:  LCA13/1992
DELIVERED ON:  3 July 1992
JUDGMENT OF:  Crawford J

Judgment Number:  B30/1992
Number of paragraphs:  20

Serial No B30/1992

List "B

File No LCA13/1992

IN THE MATTER OF H (An Infant)

REASONS FOR JUDGMENT  CRAWFORD J

3 July 1992

Infants and Children – Neglecting, ill–treating, abandoning, deserting a child – Child in need of protection – Whether child may have suffered maltreatment – Whether protection order is in the interests of the child.

Child Protection Act 1974, s10(1).

1. The applicants have applied to review an order of a magistrate made at Launceston on 22 June 1992 pursuant to the Child Protection Act 1974, s10(1) directing that their child, H, be taken to a place of safety for a period of thirty days.

1. The application before the magistrate was made by the Child Protection Board. The evidence put before the magistrate by the Board consisted of an affidavit of a child protection officer and an affidavit of a doctor who was the Paediatric Registrar at the Launceston General Hospital. The doctor also gave oral evidence. The child was one of twin sons born to the applicants on 27 October 1991. The doctor said that H was admitted to the hospital on 4 June 1992 after his parents brought him in saying that they had noticed that he was not using his right arm and that his right elbow was swollen. They could not offer any explanation as to the cause of the injury, saying that they were present throughout the day, that H had been in his "walker" (a walking frame), and that they had noticed his swollen elbow and he was not using the arm. They could not remember a fall. On examination at the time of the admission there was obvious swelling of the right elbow and the range of movement was somewhat limited by pain. Only soft tissue swelling was disclosed by xrays then taken. They did not reveal any fractures. The child was admitted for observation. The following day the arm seemed more swollen and the bruise, which was just above the elbow, was slightly more prominent. A follow–up xray on 12 June revealed callus formation around the supracondylar area consistent with a healing fracture at the site. The cause of the injury was consistent with a direct blow to the lateral aspect of the elbow, no explanation for which had been found. The injury was described as a significant trauma. Infection was ruled out as a cause. The failure of the first xray to reveal a fracture was not surprising, because with young infants mild or hairline fractures, or greenstick fractures, commonly do not show at first but later xrays may reveal a fracture by showing callus formation, that is to say new bone formation healing the area of a fracture. The doctor, who had practised for 4 years, said that he had not seen an injury like this on other children and he considered it an "unusual injury for a child of this age".

1. The child protection officer, in her affidavit, said that H’s case was referred to the Child Protection Board by a hospital doctor on 5 June. She went to the hospital that day and "placed a requirement on the Registrar of the Children's Ward that the child ... be placed in the care of the Child Protection Board for a period of 120 hours and was to remain at the Launceston General Hospital for this period of time." She discussed the case with the Registrar and the need to ascertain whether the apparent trauma was not in fact infection. She then spoke the same day to the child’s parents. They were unable to explain the cause of the injury and appeared confused and baffled as to it. They said they had not seen the child fall or injure himself. They said that they were with the child all of the morning preceding the discovery of the injury and had taken the child to a doctor, who examined him, and he was subsequently admitted to the hospital. They both expressed much concern over the injury and were co–operative with any further investigations that needed to take place with H. On 9 June the Northern Assessment Committee decided to apply for a thirty day protection order for reasons which the child protection officer expressed in her affidavit as follows:

"AFurther medical exploration of the child's injury, i.e. Green Stick Fracture xray which cannot be conducted until two weeks time.

BFurther clarification and exploration with parents in relation to a possible history to the child’s injury.

CConcern expressed for the age of the child presenting with such an injury and the unavailability of it's possible cause."

It is to be noted that by the time of the hearing before the magistrate the further medical exploration had been carried out.

1. Affidavits of both applicants were put before the magistrate and they gave evidence. In addition, a letter from a probation officer was put before him. He was the father’s probation officer. As a first offender, the father had become subject to a probation order for offences of dishonesty. According to the report from the probation officer, he was at the house when the father appeared to notice a peculiarity with H's arm and showed it to the mother who went to the telephone to ring for a doctor’s appointment. The father comforted the child who was calmer when picked up and held by him. The probation officer considered that both the father and the mother seemed genuinely puzzled and concerned about the discovery of their son's injured arm. The probation officer had been to the home three times since the birth of the twins. His case note on the last visit stated that both parents said they had strong differences as to the manner of child rearing but the love, care and gentleness of both with their children was a credit to them. A case note of 26 November 1991 stated "... shown babies by proud and tired parents, probationer being capable with them and clearly fond of them". The probation officer reported that he had not suspected the father of hitting the mother or abusing the babies and he did not estimate the mother to be a person to tolerate that. He had not suspected domestic violence and he had considered the father capable and loving with his children.

1. I will summarise the evidence of the applicants which was put before the magistrate. The father said that the probation officer arrived at the home on the morning of 3 June. Some time after that he picked the child up from his "walker" and laid him on the floor to change his nappy. As he lifted its right arm the child began to cry. The mother came over to see what was the matter. The three of them looked and noticed the signs of injury. The mother telephoned for a doctor’s appointment which could only be obtained for the next day. The father comforted the child by picking him up, cuddling and talking to him. The child stopped crying after a few moments. Because they were worried they took him to the local health centre and managed to see a doctor who examined the elbow and told them he suspected a broken arm and that they should take the child to the hospital's casualty ward, which they did. The child was admitted for about 12 to 14 days. The parents visited and telephoned the hospital every day. They had no transport and it took about 1½ hours to walk to the hospital. (There is a conflict in the evidence as to the precise date of hospital admission, but nothing appears to depend on its resolution).

1. In cross–examination the father was unable to explain how the injury occurred. The child was in his care that morning. The child was only left alone for "probably ten seconds at the most" when he went out for "wood or something". The child had been happy and had eaten bread with both hands. When he first noticed the injury there was slight swelling and no bruising. Later in the day the swelling increased and the bruise developed later. When the probation officer arrived the child was in the "walker" in the lounge with them. He had put the child in the "walker" at about 9.30 am. Earlier in his oral evidence he said that he discovered the injury about 10.30 or 11 am. I comment that if the given times are accurate the child seems to have been in the "walker" for a surprisingly long time. But there may have been erroneous estimates as to time. He said that the mother had slipped out for 5 to 15 minutes to pay some bills "around 10". The twin brother was asleep at that time. He had not taken the child from the "walker" when the mother was absent. After the bath, which was possibly at about 7 or 8 am, he had dried and dressed the child and then fed him breakfast. After the child was put in the "walker", the parents played Monopoly. The mother then left to pay the bills and returned. While she was out he left the child for about ten seconds while he got some wood from just outside the back door. The child was happy then. It was not possible that he was injured then "because he would have cried". About 15 to 30 minutes prior to the probation officer’s arrival, he had given the child a bottle and a vegemite sandwich while the child was in the "walker". The arm appeared alright then. The father confirmed that apart from about ten seconds he had the child under his constant care.

1. In her evidence the mother generally confirmed the evidence of the father in so far as it concerned events to which she could speak. However, she said the probation officer arrived at the house at about 11.45 am to noon. When the father picked the child up from the "walker" the child gave a cry of pain and she found the sign of injury. There had been no falls or incidents in her presence which could have caused the injury. She said in cross–examination that on some earlier occasion the child had a cut lip from falling off a couch when in the care of the father. She had not been present at the time. She had no concerns about the father's capacity to look after the child. On the morning of the discovery of the injury she had bathed the child at about 7 to 7.30 am. He was put in the "walker" at about 9.30 am and the probation officer arrived at about 11.45 am. Later she said that the officer arrived at about 10.30 to 10.45 am. She estimated that the child had been in the "walker" for at least an hour. She had gone to pay bills at about 10 am for about a quarter of an hour. When she returned the child was eating a vegemite sandwich with both hands. She had then played Monopoly with the father and had performed a few household chores in the kitchen and the lounge.

1. The Child Protection Act 1974, s.10(1) is in the following terms:

"10–(1)Where it appears to a magistrate on an application by the Board that a child may have suffered maltreatment, or that there may be a substantial risk that a child will suffer maltreatment, he may, if he considers it desirable in the interests of the child so to do, by order direct that the child be taken to such place of safety as may be specified in the order and be kept in that or some other place of safety for such period as may be specified in the order, not extending beyond 30 days from the making of the order."

1. By subs(2) a magistrate may, once only, on an application by the Board, extend the period of a child protection order for a further period not exceeding 30 days if satisfied that it is in the best interests of the child to do so. If a magistrate is satisfied that a child subject to a child protection order has suffered maltreatment, or that there is a substantial risk that the child will suffer maltreatment, power is given by s11 to deal with the child as one found to be a neglected child under the Child Welfare Act 1960.

1. Under s10(1) four questions need to be considered by a magistrate before a child protection order is made. They are:

1.Whether it appears that the child "may have suffered maltreatment, or that there may be a substantial risk that (the) child will suffer maltreatment".

2.        If so, whether it is desirable in the interests of the child to make an order.

3.        If so, whether he should make the order.

4.        If so, what the terms and period of the order should be.

1. The first two questions are questions of fact to be determined on the evidence. As to the first question, the learned magistrate referred to some of the evidence and said that it appeared that a fracture could have been caused during the course of the morning. He thought the evidence was clear that there was a fracture of the medial aspect of the humerus which was caused by significant trauma. He then said:

"I have nothing in the evidence which accounts for the cause of the significant trauma either by accident or by intervention of one parent or another or by some other person. In all the circumstances it appears to me that the child .... may have suffered maltreatment and I think the matter for me to consider is whether it is in his interests to make the 30 day order sought".

1. Counsel for the applicants submitted that there were no disputed findings of fact (apart from the ultimate findings in answer to the first two questions I have posed) and that no problem arose as to the credibility of witnesses, so that I should determine afresh the answers to those questions as if I was hearing the case at first instance. That is not correct. It is clear law that on a motion to review under the Justices Act 1959 that is not my function, which is to determine whether the magistrate might, as a reasonable person, have come to the conclusion to which he did come. If the findings of the learned magistrate were reasonably open to him on the evidence they should not be disturbed. See In Re P (An infant) 241986 at p15.

1. By s2(4) of the Act it is provided inter alia:

"2–(4) A child shall be taken, for the purposes of this Act, to suffer maltreatment if –

(a)  whether by act or omission or intentionally or by default, any person (including a parent, guardian, or other person having the custody, care, or control of the child) –

(i)  inflicts on the child a physical injury causing temporary or permanent disfigurement or serious pain;"

(or)

"(ii) by any means (including, in particular, the administration of alcohol or any other drug) subjects the child to an impairment, either temporary or permanent, of a bodily function or of the normal reserve or flexibility of a bodily function;"

1. It was reasonably open to the learned magistrate to conclude, as he did, that the child "may have suffered maltreatment". Taking into account the evidence, particularly that of the father, and that the child was only thirty–one weeks old, it is difficult to imagine how such a significant trauma could have been caused without either parent being aware of its occurrence. It is likely to have occurred that morning after the child was taken from its bed and yet on their evidence the child was not on its own for longer than about ten seconds on one occasion. One of the questions for the decision of the magistrate was whether the child "may" have suffered maltreatment. He was not required to make a finding whether or not the injury was so caused nor whether either of the parents caused it, but plainly the injury "may" have resulted from maltreatment. Counsel for both the Board and the applicants agreed that the word "may" should be given its ordinary meaning. Counsel for the parents relied on the Shorter Oxford English Dictionary’s meaning of "expressing subjective possibility". He further submitted that there must have been a reasonable factual basis for the holding of a suspicion of maltreatment. In my opinion it was clearly open to the learned magistrate to be satisfied of that on the evidence.

1. The second question arising under s10(1) was whether it was desirable in the interests of the child to make a child protection order. The learned magistrate concluded that it was. Unfortunately he gave almost no reasons for so concluding. Counsel for the parents did not submit that the inadequacy of the reasons was an appealable error, but because of their inadequacy I must be more circumspect than in a case where the reasons are adequately stated and therefore examinable. MJO v JUM B13/1990 per Green CJ at p4; Lawson v Lee (1978) 19 SASR 442 at p446. In this regard the only comment made by the learned magistrate when he announced his conclusion that it was desirable in the interests of the child that the order be made, was a comment concerning a submission made to him by counsel for the parents. She had referred to studies, which she did not identify, concerning the separation of twins, particularly identical twins, and to a risk of detrimental effects if separation occurs. The learned magistrate said that he was not sure which twin studies counsel had referred to and that "no doubt I have a certain hope that the Board is aware of the problems associated with the separation of identical twins". With respect, this statement causes me some unease. It gives rise to a suspicion that the learned magistrate was at least to some extent delegating to the Board his responsibility to come to a decision whether it was desirable in the interests of the child to make the order. Whether the Board thought it was desirable was not to the point.

1. The only grounds upon which the Board submitted it was so desirable were the three grounds stated in the affidavit of the child protection officer, to which I referred earlier in these reasons. That affidavit was sworn on 10 June. The first of those grounds was no longer a ground by the time of the hearing before the magistrate because the necessary medical exploration had been completed. The remaining two grounds were:

"BFurther clarification and exploration with parents in relation to a possible history to the child's injury.

CConcern expressed for the age of the child presenting with such an injury and the unavailability of it’s possible cause."

1. Counsel for the Board said to the magistrate that "perhaps the Board will make its own further inquiries in relation to the family circumstances". But that submission fell far short of a reasonable justification for the making of the order. Counsel for the Board submitted to me that the purposes of a protection order under s10(1) include the provision of a cooling down period; a time for counselling, investigation and reflection; and a warning to the parents if they were responsible for maltreatment. For many cases what he submitted might be correct. But each case must be determined on its own circumstances. The magisterial hearing in this case occurred almost three weeks after the injury was sustained by the child and it first came to be parted from its parents. The evidence that the parents were responsible for the injury was not strong. After a period in hospital it was placed by the Board with a relative living a considerable distance away from the parents. Nothing was put before the magistrate to explain why, at that time, a further period for investigation was desirable nor was he told with any particularity what investigations the Board wished to make during the currency of the order if it was made. A child protection order may be expressed to be made for a period not extending beyond thirty days. Nothing was put to the magistrate to enable him to decide whether the order should be made for thirty days or for any particular period.

1. On the evidence before the magistrate it could be said that it was extremely likely that the child would be returned to the parents some time in the fairly near future and I have considerable difficulty understanding what justification there was for delaying that return past 22 June. The decision made by the Northern Assessment Committee on 9 June that it should be delayed may well have been justifiable then, but by 22 June the justification was at least open to question and there was inadequate information upon which the magistrate could reasonably have concluded that it was desirable in the interests of the child to make the order and to continue its separation from its parents.

1. For these reasons I have concluded that the order should be set aside and that the application for the order should be remitted to the same magistrate with a direction that he make further inquiries for the purpose of deciding whether it is desirable in the interests of the child to make an order under the Child Protection Act 1974, s10(1) and, if he decides that it is, whether he should make the order and for what period.

1. Since hearing the motion to review three days ago, I have been informed that the Board has allowed the child to leave the "place of safety" and to return to its parents at home, pursuant to its powers under s14. In all the circumstances the Board may not wish to proceed further with the application to the magistrate. But that is entirely a matter for it to decide.