Child neglect: the tensions between care and justice

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Joanna Barrett explores why incidents of child cruelty have been growing in England but going down in Scotland

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11th December 2018 by TFN Guest 0 Comments

Neglect, the persistent failure to meet a child’s physical or emotional needs has a huge effect on children’s development. Sadly, too many children in Scotland experience neglect. Lack of parental care is the most common reason why children are referred to the Children’s Reporter and emotional abuse is the most common concern recorded for children placed on the child protection register.

Last week, the NSPCC revealed that there were 640 offences of child cruelty recorded in Scotland last year. Interestingly, while such recorded offences have been going down in Scotland over recent years, they have been increasing in the rest of the UK. It is not entirely clear what is behind this and it merits further exploration.

Joanna Barrett

Joanna Barrett

Fundamentally, we should be putting the child at the centre of our analysis

Numbers in England and Wales have risen particularly since 2015 when their child cruelty offence was amended to include emotional abuse and neglect. The Scottish Government has just recently concluded a consultation on reform of s12 of the Children and Young Persons (Scotland) Act 1937, which proposed to similarly amend our legislation. On the face of it, it seems a credible proposal: of course we should make sure that the criminal law takes account of the most up-to-date understanding of what constitutes neglect, and the impact it can have on a child. Inevitably, the reality of legal reform is far more complicated.

Good law should be clear and coherent. But it is arguable whether you can achieve the desired clarity when legislating for something as subjective as emotional abuse and neglect.

It should also be necessary, but it’s not certain that this reform is. The policy intention behind the proposed changes is unclear. Clearly there are cases where individuals have correctly been prosecuted for neglect. But is a penal response always the most appropriate response to overloaded families?

The law on child cruelty dates from the 1930s, before the introduction of a comprehensive child welfare system. Fast forward 80 years and we have a framework for child wellbeing premised on early intervention, a Children’s Hearings system which seeks to address children’s care needs, ensuring the child’s best interest is the paramount consideration and a social work profession, a first principle of which is to work with and support families experiencing difficulties.

It is unwise to scrutinise the criminal law without consideration of this wider context. Our response to neglect highlights a real tension between the ethics of care and of justice. In our opinion, while there is of course a role for the criminal law, it is not here where change is most urgently required to ensure children’s right to be safe.

We should be undertaking a more comprehensive review which considers, how in the current financial climate social workers are enabled to work meaningfully with families, examine the interplay between criminal and civil legal systems and consider the impact of our increasingly adversarial Children’s Hearings System’s decision-making about children’s best interests.

Fundamentally, we should be putting the child at the centre of our analysis. Only then will we create a sensible system which responds properly to the needs of children suffering cruelty or neglect.

Joanna Barrett is NSPCC Scotland policy and public affairs manager.