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/ 03 Apr 2014

The Proposed “Cinderella Law” to Criminalise Emotional Harm to Children

On Monday 31st March Lorna Cservenka, partner and head of the child care department at Hanne & Co, appeared as a guest on the LBC radio Drivetime show hosted by Iain Dale when he asked his audience to debate the suggested “Cinderella law” to make emotional abuse to children a criminal offence.

The charity Action for Children has been campaigning to reform the criminal law on child neglect believing that the criminal law does not presently reflect the full range of emotional suffering experienced by children who are abused by their parents or carers.

The so-called “Cinderella Law” would make it a crime to do anything that deliberately harmed a child’s “physical, intellectual, emotional, social or behavioural development”. Parents found guilty under the law change could face up to ten years in prison, the maximum term in child neglect cases.

Neglect is the most common reason for a child protection referral across the UK and emotional abuse is more common in these cases than physical harm, according to the Department for Education.

The LBC radio phone in show debated whether there was a need to criminalise emotional abuse as a specific and separate offence from the current criminal neglect laws.

Lorna was asked to provide an opinion from the point of view of a lawyer involved in the family court system where emotional abuse is already viewed as seriously as physical abuse. She said that in the family courts, when considering whether children should be removed from the care of their parents the family court will take into account all forms of abusive parenting. In order for the court to make a care or supervision order in relation to a child it has to be satisfied that the threshold criteria have been met. This is a legal decision as to whether the child has suffered or is likely to suffer significant harm due to the care given by the parent, or likely to be given by the parent, not being what it would be reasonable for a parent to give. Lorna felt that the family courts were a more appropriate place for decisions to be made that are likely to affect a child’s future than the criminal courts in which the only decision is guilty or not guilty. In the criminal court the child is likely to be called to give evidence against the parent who pleads not guilty, a situation that may in itself be as abusive towards the child as the act complained of against the parent.

Lorna argued that the family court is able to better analyse whether a child has suffered significant emotional harm, the causes or reasons behind that and whether there is any possibility that the behaviour of the parent may be able to change. She argued that whilst a child may complain of a parent’s behaviour it does not necessarily follow that the child would wish to see their parent sent to prison. Lorna felt that the family court was better placed to take the child’s views into account in making a decision for the child’s future.

There have been examples over the past few years of criminal laws being changed to deal with a range of issues that have been historically considered family court matters. In relation to domestic violence allegations the breach of a Non Molestation Order (injunction) was made a criminal offence in 2007. It has been widely reported that the police have not been as effective as might have been hoped in bringing offenders to justice when they have failed to abide by court orders preventing them from abusing, harassing or intimidating their partners. Female Genital Mutilation is another example. FGM was made a criminal offence in 1985 and yet the first known prosecution for this offence was only announced in March 2014.

The radio presenter put to Lorna a number of examples of parental behaviour that might be considered emotionally abusive to a child and potentially criminal under the proposed change to the law, for example children witnessing domestic violence perpetrated against their carer, absent father’s who refuse to see their children and Lorna added mother’s who unreasonably refuse contact between the children and their father. All of these situations could be considered abusive and damaging to a child’s emotional wellbeing but not necessarily something that it is feasible to criminalise in light of limited police resources to investigate such situations. In a report published on 27th March 2014 Her Majesties Inspectorate of Constabulary said not all police leaders were making sure domestic violence was a priority for their forces and there were “alarming and unacceptable” weaknesses in the investigation of domestic violence. Lorna pointed out that the family court was already dealing adequately with issues of emotional harm to children and that criminal law already has laws that could be used to prosecute neglectful emotional harm to children.

In addition, Lorna proposed that the family court’s analytical look at the reasons behind a parent or carer’s behaviour might result in a better overall outcome for the child. The family court analyses whether a parent has behaved in a certain way due to a variety of possibilities including the parent’s own mental health issues, learning disability, or even vulnerability. For example, a mother who is suffering post natal depression may not be wholly able at that time to cope with the full range of her children’s needs but with support may be able to do so. In the event that it was a criminal law to cause a child emotional harm it was debated whether this would cover the busy mother in a supermarket trying to complete her shopping when her two year old decides to have a tantrum and will not move, if the mother threatened to walk away from the child, would that be considered a criminal offence? And last week there was a story in the press of a child in America attempting to sue her parents over their failure to provide her private schooling at a catholic school of her choice. Would that child be able to call the police and demand her parents are prosecuted for emotional neglect?

Lorna argued that the present legal framework is sufficient for dealing with these issues and the myriad of different examples of parenting that might be considered abusive.

Lorna Cservenka heads the Child Care Department at Hanne & Co. At Hanne & Co, our specialist child care department can advise on all legal aspects involving children and social services involvement, including care proceedings, section 20 accommodation, emergency protection orders, foster care placements, family placements, special guardianship, adoption, contact with children in care and discharging care orders. Six of our specialist child care solicitors are Law Society accredited Children Panel members. Please call on 020 7228 0017 or email us at info@hanne.co.uk

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