Criminalisation of neglect of children

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The intention is to create a new crime within the forthcoming Children and Families Bill. It would be a crime to do anything that deliberately harmed a child's physical, intellectual, emotional, social or behavioural development. 

Section 1(1) of the 1933 Act states:- "If any person who has attained the age of sixteen years and has responsibility for] any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor..."

One might have thought that this section would be wide enough to catch cases of neglect and ill treatment, but the practical reality is that children being brought up in "toxic" backgrounds may well be taken into care, but their parents are rarely (if ever) prosecuted for the damage that is done to them. The concern is that the section does not catch cases where there is no physical abuse.As far as a compensation claim is concerned, in my experience, the Criminal Injuries Compensation Authority will accept that gross neglect of a child is a "crime of violence" for the purposes of the Scheme, and they will make an award if that neglect and its effect is made out. In relation to a civil claim, claims against parents are generally founded on either some kind of sexual or physical abuse, and brought directly against a parent.

However the courts may be unwilling to find that a parent owes a duty of care to protect a child from physical abuse as was seen in the case of XA v YA [2010] EWHC 1983 (QB).  In the case of Surtees v The Royal Borough of Kingston upon Thames [1992] PIQR P101 the court said that it should be wary in its approach to holding parents in breach of a duty of care owed to their children. What is clear is that long term neglect (without any physical abuse) can cause immense damage to a child. One particular psychiatric condition that is sometimes found in such children is Reactive Attachment Disorder. This is characterised by disturbed and developmentally inappropriate ways of relating socially, for instance a persistent failure to initiate or respond to most social interactions in an appropriate way or excessive familiarity with relative strangers. That will impact on the child's ability to learn and obtain employment in the long term future.

However it should be remembered that many situations that involve neglect, will also involve sexual and/or physical abuse.   We represent a number of clients who are the victims of neglect as children, but those claims are mostly made against local authorities who have failed to spot the potential damage in time, and protect the child. Generally a claim against a parent is not feasible, as they are often without any means, but such claims are perfectly possible where for instance the parent owns property. We are representing one client, who is suing their parent for abuse.

For an initial discussion on abuse litigation please call Malcolm Johnson on 020 7814 5441 at our London office or Julia Prior on 023 8085 7316 or Ruth Johnson on  023 8085 7309 at our Southampton office.

Malcolm Johnson 
Personal Injury team

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