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Thankyou for your email dated 13th January regarding child protection. I am sorry that it has taken so long to respond.
But at least there is good
news. On 31st March 2014, it was confirmed that the Coalition Government
is seriously considering new measures to improve the law on child neglect.
These measures would be designed to protect children from emotional
and psychological neglect.
The Child Maltreatment Bill called for the current definition of child neglect to be scrapped, and replaced with a ‘child maltreatment’ offence. Our current definition of child neglect was introduced in 1933, and is based on a law that dates back to the Victorian era.
Mark’s Child Maltreatment Bill would broaden the definition so that the law would protect children not just from physical harm, but from emotional abuse too. This would make it easier for social workers and the police to work together when investigating cases of non-physical harm. It would also make sure that outdated terms were replaced with simpler language so that the law is easier for judges and law enforcers to understand.
Action for Children’s Chief Executive Sir Tony Hawkhead has welcomed the move, stating: “We are one of the last countries in the western world to recognise all forms of child abuse as a crime. Years of campaigning have been rewarded, the government has listened and this law will change lives.”
I am aware that some have called for mandatory reporting to be introduced in law. However, in common with a number of child protection charities, I am not convinced that mandatory reporting is the right way to go. In March 2013, the Department for Education published revised statutory guidance – ‘Working Together to Safeguard Children’ – which clearly states that anyone concerned about a child’s welfare should bring it to the attention of the local authority children’s social care and ensure that they take into account the wishes and feelings of the child. In the case of Daniel Pelka, too often the perceived needs of his mother and her welfare overshadowed the needs of the child.
This revised guidance is clear that the needs of individual children, whatever their age, are paramount. It puts the needs of children back at the heart of assessment processes by removing the requirement to have separate initial and core assessments.
Other countries have tried mandatory reporting and there is no evidence to show that it is a better system for protecting children. In fact, there is evidence to show it can make children less safe. The NSPCC has expressed concern that mandatory reporting could present serious concerns for some children about lack of confidentiality, which is identified as a key reason preventing disclosure to professionals. Their research shows that if children believe that professionals must report specific claims then there is a greater likelihood that they will not come forward, leaving them at risk of harm.
I am aware that there is more to be done, but hope that this signals a significant move towards ensuring that we safeguard our children to the best of our ability.
Cinderella Law: the Grimm fiction of emotional abuse
New child-neglect laws will criminalise normal aspects of parenting.
Earlier this week, the UK government announced it was considering making ‘emotional cruelty to children’ into a new criminal offence. The announcement follows a campaign by a charity called Action for Children, which was backed by Conservative MP Robert Buckland. Buckland, writing in the Telegraph, said that the antiquated child-neglect laws failed to ‘reflect the full range of emotional suffering experienced by children who are abused by their parents or carers’. The proposal has become known as the ‘Cinderella Law’, after Buckland said that, under current legislation, ‘the Wicked Stepmother would have got away scot-free’.
Under the proposed legislation, parents would not have to be as cruel as the fabled stepmother to face charges. Buckland said the law would criminalise ‘a range of behaviours, from ignoring a child’s presence, failing to stimulate a child, right through to acts of in fact terrorising a child’. The text of the proposed offence said it would even cover any act or failure to act which limited a child’s behavioural development.
Buckland has argued that current child-neglect law was antiquated, having not been updated since the Children and Young Person Act of 1933. This idea was widely parroted by proponents of the Cinderella Law. Of course, current child-neglect legislation is quite old. What they ignore, however, is that emotional neglect has been part of the civil definition of neglect since 2001. This means that when local authorities are attempting to take children into care, emotional neglect is often a consideration. Emotional abuse is now also included in the government’s official definition of domestic violence, after its amendment last year. Rather than ‘ignoring’ emotional abuse, as Buckland claims, the law – albeit not the criminal law – has become more focused on regulating emotional harm than it ever has been before.
There has also been widespread soul-searching in recent years about the powers granted to local authorities under civil law and the manner in which they are exercised. Only recently, John Hemming, a Liberal Democrat MP, came under fire for suggesting that parents should circumvent the rulings of the family courts – the tribunals in which care proceedings are enacted – on the basis that their procedures are unfair. As I’ve written before on spiked, family-court trials are deeply problematic and secretive affairs, and they are often accused of acting too quickly to remove children from their parents on the basis of spurious claims of emotional ‘neglect’.
So the question arises: why involve the criminal law in an area already overrun with controversial civil law? The analysis published by Action for Children gives two appallingly bad reasons, apparently provided to it by the social workers it interviewed while preparing their proposal. Firstly, the criminal offence would ‘warn parents about the seriousness of their actions’. Secondly, the creation of this new criminal offence would allow the police to more effectively gather evidence for use in civil proceedings and ‘speed up’ the process of removing children from troubled families. Remarkably, no other justification is provided throughout Action for Children’s analysis for why a new criminal offence for child neglect is needed.
Aside from anything else, this proposal shows how debased official thinking on the development of the criminal law has become. In the past, the evolution of the criminal law was, to some degree, a moral barometer of the time. Repeals of criminal offences have been milestones in the shift of societal attitudes. An example of this is the repeal of homosexuality as a criminal offence in 1967. Similarly, it was right to criminalise marital rape in 1991. Today, by contrast, the introduction of a new criminal offence is considered on the basis that it would make a social worker’s job easier while teaching people how to be better parents.
This degradation of the criminal law means we have reached the bizarre position of criminalising what would be considered by most people to be normal aspects of parenting. While Action for Children may call ‘ignoring and failing to stimulate’ a child ‘abusive’, most of us in the real world will recognise it as part of a normal upbringing. It is a staggering insult to genuine victims of child abuse that campaigners who purport to protect their interests are willing to define perfectly normal aspects of parenting as ‘abusive’.
Of course, proponents will say that the law will only target the ‘bad’ cases. Action for Children suggests that ‘safeguards’ exist to ensure that ‘vulnerable parents’ and ‘victims of domestic violence’ are not targeted by the law. Who is it kidding? The criminal law is a blunt instrument which will target any parent that any given policeman wants it to. Action for Children’s example of a ’safeguard’ includes the fact that the Crown Prosecution Service (CPS) has to consider whether a prosecution is in the public interest before pursuing a prosecution. But the ‘public interest’ test only comes into play after a parent has been arrested and carted off to the nick. Even then, the test can be passed if the CPS lawyer thinks it is more likely than not that a jury would convict, which is hardly a high threshold. Does Action for Children really think this test is an effective ‘safeguard’ when the decision as to whether to prosecute against a parent is taken behind closed doors by a lawyer at the CPS?
But beyond the ill-thought-out nonsense of the proposal, there is a much more fundamental problem with the Cinderella Law. While it may seek to ratchet up powers to protect children from emotional abuse, what it ignores is that emotional abuse is not really abuse at all. There is a vital distinction to be drawn between the measurable, observable damage done by physical harm, which can be legitimately regulated through the criminal law, and the subjective, immeasurable ‘damage’ done by so-called emotional abuse.
The current discussion is gradually transforming more and more unpleasant facets of normal life into ‘abusive’ behaviours. This reform is a frightening indication of today’s trajectory towards greater criminalisation of parents and the greater interference of state mechanisms in family life. Buckland and his ugly sisters at Action for Children should appreciate the reality of their proposals, which stand to have a Grimm impact on family life in the real world.
Luke Gittos is law editor at spiked, a solicitor practicing criminal law and convenor of the London Legal Salon.