Sticks and stones may break my bones but words will never hurt me. The family courts have long recognised the lie in the old rhyme and defined child neglect as including emotional and psychological abuse as well as physical abuse – but the criminal law has taken a little while to catch up.
This may all be about to change since the announcement, earlier this month, that the government would respond to the campaign by Action For Children and look at reforming the criminal law in relation to child neglect.
Child neglect was introduced to English law in 1868 under section 37 of the Poor Law Amendment Act:
‘When any parent shall willfully neglect to provide adequate food, clothing, medical aid; or lodging for his child, being in his custody, under the age of fourteen years, whereby the health of such child shall have been or shall be likely to be seriously injured, he shall be guilty of an offence punishable on summary conviction, and being convicted thereof before any two justices shall be liable to be imprisoned for any period not exceeding six months, with or without hard labour.’
The modern law is set out in Section 1 of the Children and Young Persons Act 1933:
‘If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age willfully 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).’
As you can see the wording has not been substantially altered.
However, the statutory maximum for the offence was increased in 1988 and the defence of ‘reasonable chastisement’ was removed by s 58 of the Children Act 2004.
The leading case of R v Sheppard (James Martin)  AC 394 HL, as Lord Diplock said at 404 of the case reference, restricted the offence to a child’s physical needs.
Action For Children have been campaigning since 2012 for a new offence of Child Maltreatment.
The proposed wording is as follows:
It is an offence for a person who has attained the age of 16 years with responsibility for a child intentionally or recklessly to subject that child or allow that child to be subjected to maltreatment, whether by act or omission, such that the child suffers, or is likely to suffer, significant harm.
(2) For the purposes of this section:
(a) ‘recklessly’ shall mean that a person with responsibility for a child foresaw a risk that an act or omission regarding that child would be likely to result in significant harm, but nonetheless unreasonably took that risk;
(b) ‘responsibility’ shall be as defined in section 17;
(c) ‘maltreatment’ includes:
(i) neglect (including abandonment),
(ii) physical abuse,
(iii) sexual abuse,
(iv) exploitation, and
(v) emotional abuse;
(d) ‘harm’ means the impairment of:
(i) physical or mental health, or
(ii) physical, intellectual, emotional, social or behavioural development.
(3) Where the question of whether harm suffered by a child is significant turns on the child’s health or development, that child’s health or development shall be compared with that which could reasonably be expected of a similar child.’
It is clear from the wording of section 1 that there are echoes of Children Act 1989 in “suffers, or is likely to suffer, significant harm”.
This was a deliberate move as one of the arguments from Action For Children to support a change in the law was that it is difficult for child protection agencies to work together effectively when criminal and civil standards are so different.
On the face of it, the proposed changes are sensible. However, there are very different evidential standards and burdens in family and criminal law cases, and even in family law the task of defining ‘significant harm’ has not been straightforward.
The most recent attempt was made by Baroness Hale in the case of Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075 in which she sets out that significant harm must be ‘considerable, noteworthy or important,’ that it should be attributable to ‘a lack or likely lack of reasonable parental care, not simply to the characters and personalities of both the child and her parent’. Importantly, she added that ‘where harm has not yet been suffered, the degree of likelihood that it will be suffered in the future must be considered.’
It is interesting that despite the Children Act 1989 having its 25th anniversary the law is still wrestling with the concept of ‘suffers, or is likely to suffer, significant harm’. It remains to be seen how the criminal courts will deal with these challenges.
Zoë Saunders is a family barrister at St John’s Chambers in Bristol