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'Child in the snow' couple cleared of neglect charges

Thursday, 4 February 2010

THE couple, who faced four counts of child neglect between them in relation to the high profile 'child in the snow' case, have been cleared of the charges, following District Judge Greg McCourt's judgment given in Omagh on Tuesday afternoon.
The 24-year-old man and 23-year-old woman, who had always denied the charges, smiled with relief and hugged each other as the verdict was read out at Omagh Magistrates Court. The couple cannot be named to protect the identity of the children.
The male defendant faces a further charge of possessing a controlled drug. This charge was adjourned until a later date.
The child neglect charges related to the events of February 5 last year when a five-year-old girl was found by a SuperValu cleaning staff member, wandering in the snow in the early hours wearing only her nightwear.
When police arrived at the scene, the child helped them to trace her steps back to her house in the Gallows Hill area of Omagh. When a female police officer entered the premises she found an 11-month-old baby sleeping in the same bed as the two defendants.
Allegedly unable to rouse either of them, she removed the second child from the house and both children were taken into Omagh police station and, through social services, were placed with emergency foster carers shortly afterwards.
Judgment
It took 15 minutes for Mr McCourt to deliver his judgment on the case on Tuesday.
In his opening remarks, he commented: "The initial alert of the police was to what was a dramatic and unusual situation in that a five-year-old child had walked, in her nightwear and with no shoes, several hundred metres in snow-covered ground away from her home and was found by a cleaner working in a store at about 5.30am on February 5. That person and his colleague are to be commended for their quick action in ensuring the immediate safety and warmth of the child.
“The prosecution evidence set out what to me was a snapshot or short video, as described orally by police in their evidence, of helping the older child trace back to her home, of the conditions of tidiness and cleanliness of the defendants' home and of the condition of each of the two defendants, both of whom accepted responsibility for the two children."
The judge said that while some evidence in the case was not in dispute, there was 'clear conflict' between the female officer who first entered the premises and the female defendant as to 'whether she was roused, whether she was able to assist in finding clothes and finding nappies for the younger child aged one, and whether she had seen the police car leave from outside her premises'.
Discrepancies
Mr McCourt told the court there were also discrepancies between the other police officers who had entered the defendants' home, 'as to the location and number of beer bottles and the amount and whereabouts of clothes lying around'.
He said communications between the female officer and Omagh Police Station showed that at 6am the officer had radioed that she had found two adults in a bed with the younger child, but that they were 'so intoxicated that they could not respond'.
Turning to the condition the premises was found in, Mr McCourt said: "The defendants' home amounted to an untidy house with a sticky living room floor where clothes, beer bottles, stale food and perhaps cigarette butts were lying around to a greater or lesser extent.
“The defendants' explanation of having moved in about only a week or so earlier, of the clothes having been packed in black bags and of having left some food around does explain the observations of the police. The degree of the untidiness is not particularly relevant".
He said it was important to note that a constable agreed that there was nothing which caused an immediate threat to the children.
“No clothing, clean or dirty, was seized and no photographs were taken of the condition of the house.
“I find as a fact that the house was unclean and untidy, but I do not accept that that condition, on its own, was likely to cause unnecessary suffering or injury to the health of either child."
Mr McCourt referred to the prosecution's submission that the condition of the defendants was such that their intoxication meant that they did not care about the dangers to which the children were exposed.
Said Mr McCourt: "The father accepted that he was a heavy sleeper, but he did not accept that he was intoxicated when he was eventually aroused at 7.30am."
He also referred to the contention of the female defendant that she had been awake when the female officer had removed the 11-month-old baby.
“She denied that she was intoxicated either then or when police returned at 7.20am," said Mr McCourt. "She had phoned the police at 6.27am and the call is recorded that 'her children had been taken'.
Mr McCourt said the constable, who had recorded all calls, asserted that she did not know what had happened to her children when she called.
“However, he had not included that fact in any written record made at the time."
In relation to how much the couple had to drink that night, Mr McCourt said there was 'no suggestion of anything stronger than beer being consumed by them'.
Easily detected
“Neither defendant was asked to submit a breath test. The police were entering the house from the cold fresh air outside and I have no doubt that there was a smell of alcohol in the house and from both defendants - easily detected by the officers concerned," he added.
He said he found it 'difficult to believe' that the mother was 'so intoxicated' shortly before 6am when she allegedly could not be roused by the female officer, but that 27 minutes later she made a call to police asking about her children being 'taken'.
Said Mr McCourt: "There was no suggestion of her speech being slurred or that she was difficult to understand in the phone call. Most mothers, and probably fathers, are tuned into their baby's cry".
He said he believed that the mother did speak with the female constable.
“I find as a fact that the mother was not so intoxicated that she was incapable of looking after her children, particularly so when there was no request for a breath test or any other test of ability.
“If the mother was capable and in the presence of the children in the house, then the condition of the father is not relevant as one parent was capable of caring for the children. I believe that he may well have been intoxicated to a degree, but I cannot be sure as no evidence by way of a breath test or other examination was adduced.
The judge said the younger child was asleep in in a bed with her parents when the woman constable entered. She was placed between the wall and her mother. While it would be preferable for the child to have her own cot, nevertheless there was no further evidence that the child was suffering a a result of this location, he went on.
Upset and cold
The judge continued: "The older child had woken up, made her way downstairs and made her way outside. How she made her way out of the house is speculative, but I believe it is likely that she opened the door, whether locked or unlocked. She then walked in her nightwear several hundred metres into Market Street.
“When seen by the person in SuperValu, she was upset and cold, needless to say, and she was looking for her mother. It may have taken her 10 minutes to walk that distance. Prior to that, she had presumably been at home.
“The front door, which was a PVC door with a lock situated at mid-door level, may or may not have been locked by the father."
He went on: "I am satisfied that, in the absence of any evidence of the child found wandering away from home on previous occasions, of previous neglect by the defendants or of their previous failure to secure the safety of their children in their home or elsewhere, it is most unlikely and unforeseeable that a five-year-old child, while capable of unlocking the door if the key was in it and it was locked, having opened the door, would walk in her nightwear in the cold and on the snow-covered street in her bare feet several hundred metres."
In relation to both children, Mr McCourt said there was no suggestion that either child was 'in poor health, injured or unclean'. The were transferred to foster carers within two-and-one quarter hours
In summing up the case, Mr McCourt said: "For a conviction, it is necessary for the prosecution to prove that the defendants contemplated the risks, and did not care that the children were exposed to those risks. Parents have a heavy responsibility to ensure the children's safety. However, as stated above, I do not believe that a five-year-old child leaving the house and walking in the snow was a foreseeable risk.
“While it is desirable for children to be brought up in a house which is reasonably well organised and reasonably clean by parents who appreciate the impression given by them to their children, that does not always happen and did not happen in this case.
“However, there has not been proof of risk of injury or suffering in the conditions in the house, objective proof of the level of intoxication of the defendants, if any and proof of any previous neglect by the defendants. The children appeared in good health, clean and uninjured. Consequently I am satisfied that any one of allegations and a combination of them did not amount to wilful neglect. I dismiss the two charges against each defendant."

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