Child Abuse and the Law

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It is difficult to write articles about child abuse.  Not only is it a disturbing subject at the best of times but it is hard to write about the topic without appearing that you are commenting on a particular case that is currently before the court, such is the publicity that appears with monotonous, not to mention sickening, regularity.  This article is not however about any current case.

At the moment the Minister of Social Development is holding meetings around the country seeking ideas about how to address child abuse.  One step that is currently being taken is a law change that comes into effect on 1st April next.  Briefly, the Crimes Amendment Act increases the penalties for child abuse, clarifies the duty of care on parents or caregivers and importantly, for the first time, creates a new offence where third parties can be guilty of an offence if they do not take reasonable steps to protect a child from a risk from death, grievous bodily harm or sexual assault arising as a result of an act or omission by another person. The third party has to be over the age of eighteen years and be a member of the same household (but does not have to actually live in the household in some cases for the law to apply.) The legal requirements and various safeguards and definitions are of course much more extensive and complicated than the very brief summary I have just given above.  However, personally, I believe the law change is a step in the right direction.

Needless to say, the making of a third party liable for someone else’s actions has been a controversial move. It has been described as an attack on an individual’s personal rights and so forth. Why do I support it?  I practised family law in South Auckland for nearly forty years, including spending many years as a court appointed lawyer for children.  In the regular course of my work I read more sickening and disturbing Social Workers’ reports of horrific child abuse than I now care to remember. I also used to be disturbed by the sheer hypocrisy of family members appearing at family group conferences and at the Family Court, weeping crocodile tears over the abuse of a young member of their family, when it was blatantly clear that they knew or ought to have known that abuse was occurring and they did nothing about it. Often they would make excuses for the family member and try to minimise the child abuse. It also was not uncommon for some families to try to totally ignore serious abuse and to regard the Social
Workers or CYPS workers as ‘the enemy’ who were trying to take their children away from them.  I have even seen social workers around the Court precincts, who were trying to protect small children from further actual serious physical harm, being foul mouthed and abused by family members who seemed to regard their family’s children as exclusive chattels or possessions, rather than precious little human beings to be protected and cherished.

Is there anything really wrong with expecting adults to accept a certain degree of social responsibility as the price for living in and participating in civilised society?  The real issue, as I see it, is that adults have the capacity to make choices.  At the most basic if they find themselves in an undesirable situation they can vote with their feet and simply walk out.  Yes, I realise that the law change that affects third parties might catch some adults who are somewhat vulnerable themselves; they might have divided family loyalties, or be emotionally or financially dependent upon the abuser the law now expects them to dob in. Some will possibly be the victims of domestic abuse themselves. But, on the other hand, small children have absolutely no choices at all.  They are totally vulnerable, they cannot leave a dangerous or harmful situation under their own steam, and frequently they cannot even articulate fears or tell of the abuse they are suffering. Their often horrific circumstances will continue, possibly for a lengthy period, until some responsible adult eventually finds out and does something. If we are serious about reducing child abuse then as adults we have to accept responsibility for those who cannot protect themselves. Adults simply have to be adults and stand up and be counted.

Just notifying the authorities of abuse is not enough by itself.  We have to be sure that the authorities act appropriately and promptly. When I acted as a court appointed lawyer in ‘care and protection’ cases I was probably most disturbed by the fact that I never acted for children who had only been abused once. Almost every case involved a child who had been abused more than once.  Too many violent parents had been given a second or a third chance. I believe this situation often arose out of the over-riding principle in the Children, Young Persons and their Families Act 1989 that required, wherever possible, that children were to be kept within their family. However, more on that difficulty in a further article perhaps?

(c) T J Carson