It seems there is an emerging cross-party consensus on the need to change the criminal law on child neglect in this country. The most recent manifestation of this new consensus are new proposals to criminalise “emotional neglect”, commonly known as a “Cinderella law”.
Action for Children, the highly respected children’s charity, has fought a campaign on this issue for some years, and there is no doubt the resulting proposals are well-intentioned. They argue that the current law, with its confusing terminology about “wilful” neglect and physical harm, is no longer adequate to address the harms caused to children by emotional abuse and neglect.
The story, now ubiquitous in child welfare policies, goes something like this: “we now know the harm caused to children’s brains by non-physical forms of abuse and emotional neglect”. Accordingly, the proposals for the new law repeatedly invoke what is in fact very early and unsettled knowledge taken from neuroscience.
This stuff packs a big rhetorical punch, but what would it mean in practice? We have no idea. We resolutely do not know how much damage is caused by “emotional neglect”, already a very loose category; in all likelihood, we never will, except in those cases where it is already patently obvious. What’s more, these clear cases are dealt with perfectly adequately under the current laws; the principal civil law for child protection in this country, the Children Act 1989, already covers emotional abuse and neglect, and the Children Act 2004 added other categories to protect children (witnessing domestic abuse, for example).
All the currently proposed changes would do is allow the criminal prosecution of emotionally neglectful carers, once their behaviour (or their absence) have been defined and their “recklessness” established. The proposals suggest “recklessness” rather than “wilfulness” as the threshold for criminal intervention, whilst at the same time arguing that the current legal definition of wilful is, in fact, recklessness.
Mindful of the potentially draconian impact on some parents, Action for Children’s proposals also seek to “avoid the criminalisation of vulnerable parents who are in need of guidance rather than punishment for their behaviour”. They also assert that in relation to domestic abuse, the perpetrator, not the victim, should be prosecuted – but we know that women can already be prosecuted under the current laws for “allowing” their child to be abused by men they are terrified of and terrorised by. The change is therefore not merely unnecessary; it could in fact make this problem a good deal worse and deter victims from seeking help.
The Action for Children campaign asserts that, in line with current sentencing guidelines, consideration will be given to whether sentences served on parents are in their children’s best interests. It suggests that mitigating factors could include parents’ mental illness, inability to cope with the pressures of parenthood, lack of support, sleep deprivation, extreme behavioural difficulties in the child, and inability to secure assistance or support services in spite of every effort on the parents’ part.
After all this, who is left to be compelled to love or face prosecution? The answer is a tiny number of parents to whom none of the above apply, and who are so cruel and unusual they criminally emotionally neglect their child without causing any other damage, cunningly avoiding prosecution under the current law. We pity the police and the CPS trying to make categorical judgements in such a minefield.
Many are using the retrenchment of services as an argument in favour of this law; enthusiasts proclaim that child protection resources will follow the new enhanced criminal status of neglect. This is nonsense. If we want to make an argument for better family support, then we must make it. Some of us are doing so loud and clear. This proposed law is at best a distracting and time-consuming irrelevance – and at worst a blueprint for draconian state intervention where ordinary help is all that’s required.