ONTARIO COURT OF JUSTICE
BETWEEN
CHILDREN'S AID SOCIETY OF SURREY,
Applicant,
- AND -
VERNON DURSLEY and PETUNIA DURSLEY,
Respondents.
Before Justice John Kirkin
Heard on August 5, 1992
Reasons for judgment released on September 10, 1992
STATUTES AND REGULATIONS CITED
Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], paragraph 37(2)(b), paragraph 37(2)(g), subsection 53(1)
CASES CITED
Children’s Aid Society of Halton Region v. R.(C.J.), 2005 ONCJ 514
Patricia J. Smith ....................................................... counsel for the applicant society
Florence X. McIlfly ........................................................... counsel for the respondents
INTRODUCTION
[1] JUSTICE J. KIRKIN:--- In this child protection case, the child Harry Potter (age 11 years) was apprehended two months ago. A "without prejudice" order was made shortly thereafter on the first court date placing the child in the interim care and custody of the society. Since then, Harry's aunt Petunia and his uncle Vernon (the "Dursleys") brought a motion seeking a return of Harry to their temporary care and custody, and so a temporary care and custody hearing was held on August 5, 1992. There is no prospect of other parties stepping forward to care for the child. Although the Dursleys have not exactly been eager to re-assume the responsibility of caring for Harry, they have maintained throughout that any involvement of the society in their home is unnecessary.
ISSUE
[2] The question of whether the Dursleys offer the best possible environment for Harry is not the same question as whether he should be put in the society's care for now. The criterion for determining temporary care and custody after a child is apprehended is set out in subsection 51(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the "Act"). The subsection sets out a two-part test, both parts of which the society has to meet, before an order can be made that removes the child from its pre-apprehension caregiver.
[3] First, the society bears the onus of establishing, on reasonable grounds, that there is a risk that Harry is likely to suffer harm if returned to the Dursleys. Second, the society must show that any such risk cannot be adequately mitigated by putting Harry back with the Dursleys under the society's supervision and subject to such other terms as this court considers necessary.
FINDINGS OF FACT
[4] Harry's situation is a tragic one. He has been an orphan since his parents both died in a car crash, leaving him only with a zig-zag scar on his forehead. His godfather, Sirius Black, is implicated in the murder of a dozen people and a fugitive from justice, and the Dursleys are Harry's last living relatives.
[5] The society described a situation that alienated Harry from his aunt and uncle at every turn and I accept their evidence on this point. For example, although there are copious pictures of their biological son (Harry's cousin) Dudley throughout the Dursleys's home, there is no indication that a second boy lives in the house outside of the small cupboard that the Harry sleeps in. This court had to hear that the cupboard was not only tiny, it was also infested with spiders.
[6] Vernon did not express any contrition regarding the inappropriateness of Harry's lodging. Quite the opposite in fact: he recognized that Harry was uncomfortable in the cupboard and felt this was a "good thing" because he could use extended time there as a punishment for Harry's perceived transgressions against the family.
[7] When Petunia was pressed on the issue of Harry's room (or lack thereof) by counsel for the society, she was reluctant to promise any changes. It was revealed to the court that there is a full-sized bedroom available at the Dursleys's residence which would be adequate for Harry's needs but neither Respondent was willing to commit to removing Dudley's toys from the room so Harry could move in.
[8] Perhaps it has something to do with the cramped cupboard he sleeps in or maybe he is simply undernourished, but Harry is underweight for his age. The Dursleys clearly have the means to properly feed Harry yet they neglect to do so. Harry's condition is exacerbated by the baggy clothes the Dursleys provide (hand-me-downs from Dudley) and the taped-together glasses (with the wrong prescription) he is forced to wear, neither of which help his standing amongst his peers at school.
[9] The society presented statements from Harry's teachers in grade school which described numerous incidents of Dudley and his friends bullying Harry. Much like the cupboard, when Vernon was asked about this pattern, he said it was a "good thing" and he admitted that neither he nor his wife had ever taken any steps to help Harry with his problems on the playground.
[10] Harry is not a child who has many special needs, but the society has raised concerns mental health concerns about his self-esteem. I suspect that Harry's low self-esteem is not helped by the beatings he receives at school. Dudley's sadistic behaviour sounded more like something you would expect to find on the island in 'Lord of the Flies' than in a quaint residential home in Little Whinging. The need for Dudley's situation and behaviour to be reviewed under the Act is not the focus of this court today, however.
[11] Another threat to Harry's self-esteem helped is the Dursleys's habit of ignoring his presence to the point of speaking as though he is not even there.
[12] While Petunia at least emitted a quantum of warmth towards Harry in her testimony, Vernon was simply frigid. I am still not entirely sure why the two of them have pursued custody of Harry. One would assume that they are doing it out of a sense of family loyalty, but I never got the impression from either of the Respondents's testimony that they felt any love or affection for their deceased relatives.
[13] Finally, I heard from an Albus Dumbledore on the topic of the Dursleys's suitability as custodial parents. He spoke as a friend of the family who was willing to support the Dursleys in their efforts to care for Harry, although he could not offer himself as an alternative custodian of Harry since he is a busy headmaster at a school for gifted children.
[14] A strange man, what Mr. Dumbledore lacked in his understanding of social niceties, he more than made up for in warm-heartedness. He spoke of the importance of keeping Harry with the Dursleys but seemed unable to understand or address the pertinent questions put before him by counsel. Most of his testimony focused on protecting Harry from "Dark Forces" but Mr. Dumbledore could not provide a cogent explanation of what those forces might be, where they might come from, or how the Dursleys might expect to protect Harry from those who would wish do him harm.
ANALYSIS
[15] The society has met both parts of the two-part test in subsection 51(3) of the Act. The evidence supports a belief on reasonable grounds that Harry would likely suffer harm if returned to the Dursleys and there is no order that this court can make that would adequately protect Harry if returned to the Dursleys's care. I am satisfied on the evidence:
- that Vernon likely has serious anger management problems;
- that Vernon can be violent with Harry;
- that the Dursleys award Dudley love, praise, and presents but offer none of those things to Harry;
- that Dudley assaults Harry on an almost daily basis without recrimination from his parents;
- that Petunia is incapable of interdicting the harm perpetrated by Vernon or Dudley;
- that the Dursleys are unaware of the risk their disregard for Harry poses to his emotional well-being, let alone willing to do anything about it;
- that Harry's health is threatened by the tiny cupboard he sleeps in and the spiders he shares it with;
[17] Maybe I could see some value in keeping Harry with his only living relatives if they actually made some effort to connect him with his family's past, but the Dursleys explicitly stated they would prefer the opposite. They forbid Harry to ask questions about his parents and keep no pictures of them anywhere around the house.
[18] Nor am I confident that the risks posed to Harry can be mitigated by the society's involvement since the Dursleys seem intent on isolating him from the rest of society as much as possible. I heard from the Dursleys themselves that they thought Harry should be kept away from doctors and other medical professionals. They seemed worried about what those examining Harry might discover, which probably raises enough red flags on its own to strip the Dursleys of care and custody. Their unwillingness to seek or cooperate with people and organizations that could help Harry means it is likely the society's supervision would be frustrated as well. All of the society's requests for Harry's birth and medical records have been denied so far.
[19] There are no conditions that could be placed on the Dursleys to allay the concerns I listed above and so I am satisfied that the only possible result under the law is placement of Harry with the society for the time being. Counsel for the Dursleys's suggested that Mr. Dumbledore could help supervise as a condition but that is a dubious proposition. I could tell Mr. Dumbledore meant Harry well, but it is clear he has many other demands on his time and he seems to lack the social wherewithal to help himself let alone anybody else. For example, he kept on waiting for the court stenographer to write down every word he had to say even after it was explained to him several times that the microphone in front of him was capable of capturing his voice and that the stenographer was only there to transcribe individual words that might be garbled on playback.
[20] As far as I am concerned, the society has already adduced enough evidence to satisfy the court that Harry meets the definition of a child in need of protection under paragraphs 37(2)(b) (risk of physical harm) and 37(2)(g) (risk of emotional harm). However I am cognizant that this is only a temporary care and custody hearing and the issue of Harry's status as a child in need of protection is not before the court, so my comments should not be interpreted as prejudging the case in place of future triers-of-fact who will hear further evidence in time. I only state this observation to forewarn the Respondents that they face an uphill battle and will have to do much better at trial if they hope to have any chance of convincing this court that Harry should be returned to their care.
CONCLUSION
[21] The society's claim for temporary care and custody is granted. The Dursleys's claim for temporary care and custody is dismissed. This matter is adjourned to October 12, 1990 for a settlement conference, both parties to file settlement conference briefs at least seven days in advance.
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