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[This edited version of the report has been prepared by Dr Robert N Moles]

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A Duty of Care: Criminal Negligence, Bad Parenting or Just Naïve?

Northern Ireland Lay Magistrates Association "The Lay Magistrate" September 2007
Editorial by Dr WG McCarney OBE JP

Please direct any comments concerning this article to Rosemary Craig at rosemarycraig@btinternet.com
Please indicate in your comments whether they are available for publication on this page, or whether they are to be confidential to the research team

When investigating the injury or death of a child who has been left unattended prosecutors

in the US focus on the nature of the risk taken by the parent, and the nature of the result.

In such cases, the words “foreseeable” and “preventable” are often invoked in debate.

It was around 2pm on July 3, 2007. 18-year-old Jovanna Shiriver was home alone in a third-floor apartment on Classon Avenue in Bedford-Stuyvesant, Brooklyn with two children for the first time. She was bathing her daughter, 11-month-old Smeily Ordoñez, and her boyfriend’s 2-year-old sister. The 2-year-old’s mother was in hospital. Ms. Shiriver was feeling overwhelmed trying to do everything – mind the children, cook and do housework.

The children were standing in what Ms. Shiriver described as low water when she became distracted by the smell of the rice burning. She went to the kitchen, down the hall from the bathroom to stir the rice. She said she left the children alone for five minutes. When she returned Smeily was lying on her back. The water just barely covered her face. She snatched the baby and ran to a bedroom, trying to revive her. The apartment had no telephone so she then ran with Smeily to her neighbour upstairs. When her neighbour failed to revive the baby they called the police at 2:02pm.

The baby was rushed to the nearest hospital where she was placed on life support. She was later transferred to another hospital which specialises in medical and physical rehabilitation.

Detectives spoke with Ms. Shiriver about what had happened, arrested her and brought her to the Rose M. Singer Centre, a jail for women on Rikers Island. Ms Shiriver’s moments at the stove constituted a criminal act, the prosecutor said. She was indicted on two counts of endangering the welfare of a child, a Class D felony, and two counts of reckless endangerment. She has been in prison since the day of the accident. A law-enforcement official said Ms. Shiriver could face additional charges if the baby dies.

Ama Dwimoh, chief of the Crimes Against Children Bureau of the Brooklyn district attorney’s office said that people have to understand that there is a duty owed to children by the very nature of who they are. To her mind Ms. Shiriver’s action was criminal negligence as opposed to bad parenting. When investigating the injury or death of a child who has been left unattended prosecutors focus on the nature of the risk taken by the parent, and the nature of the result. In such cases, the words “foreseeable” and “preventable” are often invoked in debate.

State law gives a guideline for distinguishing between criminal negligence and flighty parenting. Was the risk of such nature and degree that the failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe? In practical terms, that leads to a series of questions: Does the family have a case history with child welfare agencies? How old was the child? Where was the child left? How many children were left together unattended?

Sitting beside a swimming pool in the Algarve on the evening of May 3 Gerry and Kate McCann were enjoying themselves. The tapas bar of the Mark Warner holiday resort in Praia da Luz was buzzing with holidaymakers and it was quiz night.

The McCanns were favourites to win the contest organised by the resort’s aerobics teacher Najova Chekaya. After all, the two doctors had brains on their side. Around their table were seven friends from England, three of them also doctors and one a top medical research fellow.

The group of nine were holidaying in Portugal and wanted to have a good time. As one of the doctors, Matthew Oldfield, was to recall: “We drank. So what! We were on holiday.”

50 yards away on the other side of the swimming pool, the group’s children were sleeping alone. In the bedroom of one ground floor apartment was Madeleine, the McCann’s three-year-old daughter. Her twin brother and sister, Sean and Amelie, aged two, lay in cots either side of her. They had been tucked up at 7pm. Half an hour later the McCanns had joined their friends for dinner at the tapas bar.

Gerry and Kate McCann and their friends are like-minded people, with children of similar ages. And they knew each other in the Midlands. Mr McCann is a consultant cardiologist at a Leicester’s Glenfield Hospital and his wife is a GP.  Both are aged 39.

Until recently Dr Oldfield worked at Leicester general hospital. David Payne is a senior research fellow in cardiovascular sciences at Leicester University and his wife, Fiona, is a doctor. Another of the holidaymakers, Dr Russell O’Brien, also worked at Leicester University before moving this summer. Recently they all went to Mark Warner’s in Greece where they had decided to leave their children to sleep while they had dinner nearby.

The McCanns reported that, in Praia da Luz, they were dining just 50 yards from the apartment. However, Madeleine’s bedroom was situated next to the apartment’s front door which is around the corner and a further 30 yards on, next to a road into the resort and a busy car park. The bedroom, and the front door to the apartment, is completely out of the sight of the tapas bar.

The McCanns insist that the children were being checked regularly and their friends support this. However the Portuguese police are concerned about discrepancies in the witness statements. Their stories and the timings of their movements on the night do not tally. Furthermore, emails and phone messages sent between the group - and intercepted by the PolÌcia Judiciaria and British detectives helping the inquiry - are reported to contain conversations that contradict earlier statements.

Mr McCann said he checked on his three children at 9.05pm. He noticed that a door in the apartment which had been left shut was ajar. He thought nothing of it. His daughter was fast asleep so he went back to the tapas bar.

Another of the group, Jane Tanner, says she took her turn 10 minutes later. She claimed later to police that she saw a dark-haired man of about 35 carrying a child as she walked back to the bar afterwards but thought nothing of it.

Soon after her return - at 9.45pm - Dr Oldfield did his round of the bedrooms. In a first statement to police, it is unclear if he actually went inside the McCann flat.

It appears that in many of the checks the children were not visible, but involved listening at doors or even outside the apartments.

In a second statement Dr Oldfield insisted he did look in Madeleine’s bedroom, believes he saw her there, and that there was light coming in through the windows as though the heavy shutters had been opened. Again, he thought little of it until afterwards. Then it was Mrs McCann’s turn. She went to the apartment at 10.00 pm and found Madeleine gone.

What is now perturbing Portuguese police is how could she be abducted when the McCann group were checking so often? Or have reports inadvertently exaggerated how vigilant the parents really were?

A worker at the tapas bar says that only a tall man, believed to be Russell O’Brien, got up from the table during the entire evening. Of course, this witness might be wrong. A busy barman could not have eyes on the McCann party for two and a half hours.

Najova Chekaya, who was running the quiz, was invited over to the McCann table by Mr McCann himself when the game ended at 9.30. She stayed for half an hour. She later claimed to friends that nobody left the table.

There is another conundrum too. It concerns the sighting by Jane Tanner of the man carrying a child. He was wearing beige trousers and smart black shoes. Her report is taken seriously by police. Yet a British holidaymaker, Jeremy Wilkins, has given a deposition that does not support her evidence. He knew Mr McCann because he played tennis with him, and was walking his eight-month-old son in the night air when the drama unfolded. He says that he met Mr McCann, who had come out of his apartment at 9.05pm , and had a word with him. Soon after that Jane Tanner would have crossed paths with Mr Wilkins and his baby. Mr Wilkins says he saw no man carrying a child or Jane Tanner herself. In his statement he said that it was a very narrow path and that it would have been almost impossible for anyone to walk by without him noticing.

Local newspapers and television have criticised the McCann group, who left their children alone for two and a half hours as they wined and dined. One question being asked is why didn’t the parents put their children in the evening crèche which is open until 11.30pm ? Why didn’t they hire a babysitter, bookable at the Mark Warner reception desk?

On July 23 Gerry McCann was grilled by American TV networks on this very point. 

Speaking on ABC’s Good Morning America, the heart consultant said: “We didn’t think we needed a babysitter. We are good parents and what we did felt perfectly reasonable at the time. Clearly we couldn’t have predicted what was to happen.”

It seems unlikely that Ama Dwimoh, chief of the Crimes Against Children Bureau of the Brooklyn district attorney’s office would agree. As noted above, New York State law gives a guideline for distinguishing between criminal negligence and flighty parenting. Was the risk of such nature and degree that the failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe?

The outpouring of support which followed news of Madeleine’s disappearance is itself a cause for concern. Was this the reaction of parents who would do as the McCanns had done – leave their children home alone while they go out to dine – and who were now feeling “there but for the grace of God go I”?

A well known spokesperson for a parents’ group in Northern Ireland said on a local TV news bulletin that what the McCanns did was perfectly reasonable.

Gerry McCann was quizzed on American TV about the possibility he and his wife Kate could be prosecuted for leaving Madeleine and two year old twins Sean and Amelie alone in the apartment that night.

He told CNN: “We have been assured by the authorities that what we did fell well within the boundaries of good parenting. We have been advised our behaviour was legally well within the bounds of responsible parenting and have been assured no action will be taken. We were essentially performing our own baby-listening service.  What Kate and I did was at worst naïve”.

The Crown Prosecution Service has already dismissed claims that the McCanns, from Rothley, Leics, could be prosecuted for neglecting Madeleine. One can only wonder whether the response would have been the same had Madeleine been the daughter of an 18-year-old single mum from one of our minority groups.

Gerry McCann says he is convinced that the high-profile campaign to find his daughter Madeleine could also help other missing children. While the tragic episode has captured the hearts of the British public in an unprecedented fashion, the blanket media coverage has so far not helped to find the youngster and some argue it may even have hindered it.

The scale of the interest shows that people do care and that they want to help, but all the attention focused on this one incident has glossed over a much more widespread problem. Of course every effort should be made to find Madeleine, but the massive amount of help and money that the search has had will no doubt seem unfair to a certain section of society – the families and friends of other missing people.

An estimated 210,000 people are reported missing in the UK each year and about two-thirds of those are under the age of 18. This means that there are thousands of parents who have gone through or are going through the same ordeal as the McCann’s without being afforded the same hope that the mass media attention brings.

Paul Tuohy, chief executive of the charity Missing People, (formerly called the National Missing Persons Helpline), says the charity offers support to around 2,000 families each year and that 10 missing people are located every week directly as a result of their work.

People go missing for a variety of reasons. Some people go missing for just 24 hours, while others are away for years. Some of them are found, while others are never seen again. When someone goes missing, the effect it has on their family or loved ones can be devastating. They can be left feeling angry, depressed, bewildered and often with a sense of bereavement.

The grief that the McCanns are living through very publicly in Portugal is replicated behind closed doors all over the country. While the publicity surrounding Madeleine’s disappearance has not yet resulted in finding her, perhaps some good will come out of it, as it has raised awareness of the widespread issue of missing people and missing children in particular.

The problem of missing children is complex and multifaceted. There are different types of missing children, including family abductions, endangered runaways, non-family abductions, and lost, injured, or otherwise missing children (including disappeared un-accompanied minors seeking asylum). The media is very good at bringing attention to certain types of missing children cases, such as Madeleine’s, but others go by almost unreported.

To combat the inequality, Missing People hoped that as many people as possible would acknowledge International Missing Children’s Day on May 25. The aim was to encourage the population to think about all the children still missing in Europe and around the world and to spread a message of hope and solidarity at international level to parents who have no news about their children and do not know where they are or what has become of them. The day passed largely unnoticed.

The (US) National and International Centres for Missing and Exploited Children (NCMEC and ICMEC) were established in 1984 and 1998 respectively after six-year-old Adam Walsh was murdered after being snatched from a department store in Florida in 1981.

The case led to a major review of child abduction cases in the US and legislation passed last year - the Adam Walsh Child Protection and Safety Act - was named in his honour. The Act significantly strengthens America ’s nationwide sex offender registration system and introduces harsher penalties for child sex offenders.

In October 2005 I was invited as a “European Expert” to participate in a US / EU summit organised by the International Center for Missing & Exploited Children in collaboration with Child Focus -the European Centre for Missing and Sexually Exploited Children. The event was entitled “Missing and Exploited Children: The Past, The Present and The Future” and aimed at developing a strategy for moving forward to strengthen our common fight against this phenomena. The summit was held in Buonas, Switzerland on 25-27 October 2005. While questioning my right to be called an “expert” I agreed to attend and to participate in the debates. I was very impressed by Adam Walsh’s father who addressed the summit. I spoke at length with Ernie Allen, President and CEO of ICMEC and was impressed by the work being done by both.

Last June, Madeleine’s parents sought the assistance of the ICMEC to create an international resource that would quickly disseminate pictures of missing children throughout the world.  Gerry McCann recently visited the headquarters of NCMEC and ICMEC in Virginia where he discussed the need for disseminating information and images of missing children on a broader, global basis.

On August 10, ICMEC, in partnership with Google’s YouTube, and The Find Madeleine Campaign announced the creation of a new initiative that will provide worldwide exposure to information and videos of missing children.  A new YouTube Missing Children’s Channel has been created exclusively for posting videos of missing children. The new channel can be found at:

www.youtube.com/DontYouForgetAboutMe

In launching the initiative Ernie Allen noted that hundreds of thousands of children go missing around the world every year. Some are abducted to other countries, creating unique challenges for law enforcement and family members searching for them. In the US alone, nearly 800,000 children are missing each year or about 2,000 each day.  Photos remain the single most effective tool for finding a missing child.  This new resource will provide unprecedented exposure for missing children, reaching potentially millions of viewers every day and increasing the opportunity that someone has seen them.

In the UK Missing People and similar organisations are clearly doing what they can. But they can’t do it all on their own. The public and media have a very important part to play. Not every child that goes missing does so in such dramatic circumstances as Madeleine McCann, but the strain on the families and friends is just as much. Madeleine is obviously a very young missing person and that could explain the level of interest, but what the public and media must learn to do is share their attention, sympathy and efforts to help across the board. They need to spread their level of interest across all missing persons’ cases, not just focus on the high profile ones.

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