“The Chief of Police submitted that “police officers are independent officers who retain discretion to execute their duties in a manner that is in compliance with the law.” Further, the Chief argued that it was incongruous that police be required to “take a youth from a situation that has not been shown to be unsafe, and put him in a situation where he has demonstrated a willingness to jeopardize his own safety in order to escape,” and this was “divergent with the common law duties of a police officer, which include the preservation of the peace, the prevention of crime, and the protection of life and property.”.
I agree that police have a general discretion in how they go about their duties, and that their discretion should be informed by their general, common law duties. That discretion would logically come into play in determining what is “reasonably able to be done” in locating a child, for example (CLRA, section 36(4)).
However, where a statute and an order confer a particular duty on police – a duty to do “all things reasonably able to be done to locate, apprehend and deliver the child” – it must be only in exceptional cases that they decline to carry out that particular duty, and they must promptly seek by proper means to be relieved of that duty. It is not necessary for me to decide whether everything was done as it should have been in the days and weeks immediately following the making of the order in question before me. Certainly the police had evidence that the younger son was willing to put himself and others at physical risk, rather than acquiesce to being in his father’s care. The events in this case bring to the fore how important it is for parties and courts to consider carefully before adding a police enforcement clause to a custody or access order, and to have the police enforcement provision reviewed promptly when difficulties arise.”