The criminal law and child neglect: - Action for Children

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This is counter to the modern understandingand definition of neglect as the omissionor ‘persistent failure to meet a child’s basicphysical or psychological needs’, 16 andleaves the current offence ‘replete withobsolete and confusing terminology’ 17that was drafted 145 years ago.The current offence is further antiquatedby the phrase ‘unnecessary suffering’.The Children and Young Persons Act 1933describes the offence of child cruelty whencommitted in a manner likely to cause‘unnecessary suffering or injury to health’.This somehow suggests that the suffering ofchildren may otherwise be necessary, whichis at odds with modern views of children andtheir rights.‘Wilful’ neglectSection 1 of the Children and Young PersonsAct 1933 provides that cruelty to a child mustbe ‘wilful’ to be considered a criminal offence.The term ‘wilful’ has been defined in case lawto mean advertent recklessness – i.e. that thedefendant was aware that some harm mightbe caused to the child if they did not act,and nevertheless ran that risk when it wasunreasonable to do so. However, this differsfrom the common understanding of the wordwhich has strong connotations of deliberateand intentional actions. As neglect istypically an omission, a difficulty arises asto how a failure to act can be regarded asa deliberate action.The term ‘wilful’ has presented numerousdifficulties in the context of neglect,particularly for juries and lay magistrateswho must ‘conceive how, as a matter ofordinary language, an omission can be wilfulbut not deliberate’, 18 and is regarded as aterm that is ‘beset by lack of clarity’. 19The five conduct elementsThe current offence can be committed inone of five different ways, namely assault,ill-treatment, neglect, abandonment andexposure. In addition to the difficulty thatall these forms of conduct must be ‘wilful’,several other problems arise:1. Assault is essentially covered by theoffence of ‘common assault’.2. Ill-treatment has no statutory definitionor accepted definition within case law (thealternative term ‘maltreatment’ is usedwidely by those working in child protection).3. Neglect (problems detailed above and below).4. Abandonment is an out-dated term withno reported prosecution since 1957.5 Exposure is an out-dated term that isignored in the sentencing guidelines, withno reported prosecution since 1910.16HM Government, Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promotethe welfare of children, (HM Government, London 2010) & Office of the Children’s Commissioner for Wales (2008) AllWales Child Protection Procedures17R. Taylor and L. Hoyano, “Criminal Child Maltreatment: the Case for Reform”, Criminal Law Review (2012), pp. 871-882.18Ibid.19D. Ormerod, Criminal Law Review (2008), p. 280.8.
Differences between the civiland criminal lawIn civil law, which governs local authoritychild protection and family court proceedings,the following definition of neglect is usedin England in statutory guidance under theChildren Act 1989: 20‘neglect is the persistent failure tomeet a child’s basic physical and/orpsychological needs, likely to result in theserious impairment of the child’s health ordevelopment … [and] may involve a parentor carer failing to provide adequate food,clothing and shelter …, protect the childfrom physical and emotional harm or danger,ensure adequate supervision (including theuse of inadequate caregivers), ensure accessto appropriate medical care or treatment, andneglect of, or unresponsiveness to, a child’sbasic emotional needs.’ 21These definitions are widely accepted andsubject to ongoing review by the Departmentfor Education. 23 This is in stark contrast to theantiquated definitions within the Children andYoung Persons Act 1933, as detailed above.The differences between the civil and criminallaw regarding child neglect also presentreal, practical difficulties, as the police areguided by one definition and social careprofessionals by another.Emotional abuse is defined as ‘the persistentemotional maltreatment of the childsuch as to cause severe and persistentadverse effects on the child’s emotionaldevelopment’. 2220This also applies in Wales. The Welsh definition of neglect is as follows: “Neglect is the persistent failure to meet a child’sbasic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development.It may involve a parent or care-giver failing to provide adequate food, shelter and clothing, failing to protect a child fromphysical harm or danger, or the failure to ensure access to appropriate medical care or treatment. It may also includeneglect of, or unresponsiveness to, a child’s basic emotional needs. In addition, neglect may occur during pregnancy as aresult of maternal substance misuse.”21HM Government, Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promotethe welfare of children, (HM Government, London 2010), para. 1.36.22Ibid., para. 1.34.23It is expected that a new version of Working Together will be published in 2013, including a limited further refinement tothe definition of neglect.9.
Page 1 and 2: The criminal lawand child neglect:a
Page 3 and 4: IntroductionIn April 2012, Action f
Page 5 and 6: neglect - an increase from 47 per c
Page 7: Problems with the current lawFailur
Page 11 and 12: Replacing ‘wilfully’with ‘rec
Page 13 and 14: Domestic violenceThe alternative of
Page 15 and 16: The proposed offenceSocial workers
Page 17 and 18: Education Select Committeerecommend
Page 19 and 20: What safeguards exist?In any potent
Page 21 and 22: Broader issues to beconsideredDurin
Page 23: This report has been compiled in co

The criminal law and child neglect: - Action for Children

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