Police officers who seized a terrified three-year-old boy from his parents acted outside the law, the Supreme Court has ruled.

Assistant Justice David Kessaram said that the Department of Child and Family Services and Family Court had been wrong to back the removal of the child under an emergency protection order after concerns were raised about an arm injury that he suffered.

The boy’s mother said in an affidavit to the court: “I thought it might be easier for my son if I wasn’t there and so I stayed inside when they took him.

“I could not watch from the window as I heard him screaming and his begging for his father to go with him. He kept screaming and asking for me and I was incapable of helping my son.

“Nothing can describe the pain of my child being ripped away and being incapable of helping him. I cannot imagine what my son must have gone through and the effect it will have on his development. I fear he has been irreparably harmed.”

Mr Justice Kessaram’s written judgment said: “The removal of a child from the care of his parents is a serious matter, whether it is effected by the police or by the director of the DCFS.”

He added the power of police to remove children from their homes was to be used only in “emergency circumstances” when the child faced a real and immediate threat.

Mr Justice Kessaram said nothing had been put to him to indicate why the DCFS did not consider other options before it ordered protective custody for the child.

He added: “There was no sufficient basis put forward by the DCFS for an EPO in this case.

“Accordingly, it was wrong, in my view, for the Family Court to have accepted the DCFS’s case as having been made out.

“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 the child if left in the care of his parents.”

The judgment was handed down after the three-year-old, who cannot be named for legal reasons, was taken from his parents on May 3 last year after suspicions were raised over an injury to his arm.

The drama began the day before the boy was removed from his home, when the child’s school contacted his parents after he complained about pain in his wrist.

The boy was seen by Peter Perinchief, a paediatrician, who said the child had a fractured wrist and referred him to the King Edward VII Memorial Hospital for an X-ray.

Ranjini Patton, a doctor in the emergency department, said the boy was suffering with “nursemaid’s elbow”.

Dr Patton explained that the injury often occurred in young children when an arm is pulled to put the joint back in place.

She said the parents seemed “concerned” and “loving” and she had no concerns about abuse.

However, a report was made to the DCFS Kidsline the next day that raised concern about the boy’s safety.

The DCFS had received two earlier abuse allegations about the child after hospital visits, but in both cases the complaints were found to be unsubstantiated.

The department contacted Dr Perinchief’s office and were told by a nurse the child suffered a fracture.

She added that an X-ray had been ordered for the child, but it had not been carried out.

The department contacted the police and told them the child’s arm was fractured and that he needed to be taken into protective custody.

Officers, who assumed the courts had already issued a care order, were sent to help the department take the child from the family home.

When police arrived at the house, they were told the DCFS had relied on officers using their powers under the Children Act to take the child into protective custody.

The Act allows police to remove a child without a court order in an emergency.

The child’s mother, however, told police the injury happened while she was playing with her son.

She also gave them his hospital discharge form and asked them to contact Dr Patton.

Detective Constable Bernadette Lawrence spoke to the DCFS and told it that other options should be considered and that the child could be left with his parents.

Inspector Troy Glasgow, who arrived at the child’s home later, wrote in an affidavit that he understood the child’s arm had been fractured.

He said: “Both parents were clearly upset and distraught with the prospect of having to hand over their child to the authorities, but they agreed to comply.”

The DCFS brought the case to Family Court the next day and asked for an emergency protection order.

The department highlighted the number of injuries the child had suffered and “inconsistent” medical opinions, and Magistrate Maxanne Anderson granted the request.

Officials from the DCFS met another doctor, Stephen West, on May 5 who reviewed the child’s medical records.

He wrote to the department that night and said he did not think further investigation was needed.

The child was returned to his parents that night and the emergency protection order was lifted less than a week later.

Lawyer Mark Pettingill, who represented the family, said yesterday that the ruling will help to underline to child welfare the limits of its powers.

He said: “A large part of what my clients were doing is in the public interest, to make sure it didn’t happen to someone else who might not have the means to fight it themselves.”

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