Last week the government announced it is considering whether to introduce a new offence of emotional cruelty to children.
In the ensuing debates in the media there has been confusion about the difference between criminal and civil law, and therefore court systems. There has been a blurring of the two systems – I was asked by one interviewer how this would affect secrecy in the family courts.
To clarify: there is a different burden of proof in criminal and civil proceedings. In criminal courts, the burden of proof has to be “beyond reasonable doubt”, in civil courts it’s “on the balance of probabilities”. The legal change being proposed is in relation to criminal law only.
The campaign to change the law has been led by the charity Action for Children. Its argument is that the law as it stands is outdated. The definition of neglect that is currently in use in criminal law is set out within the Children and Young Persons Act 1933 and is very different from today’s understanding of what neglect is.
Growing body of evidence
In addition to this, this definition does not include emotional neglect. It is also very different from the definitions of emotional abuse and neglect set out in the Children Act 1989. The argument is that the law should be updated to take into account the years of research that have been done looking at the impact of emotional neglect.
Those who are for changing the law also point to changes in the guidance around domestic abuse law, which now recognises the impact of the emotional/psychological damage to a victim. As well as this, the Children Act 2004 amended the definition of emotional abuse of a child to include witnessing or hearing the abuse of another.
Robert Buckland, an MP and part-time judge, has also been campaigning for a change, as have other politicians. Their view too is that criminal law, as it currently stands, does not fully recognise the full range of emotional damage done to a child by emotional neglect.
A growing body of evidence suggests it is emotional/psychological abuse that has the greatest impact on a child as they grow up. Although not universally accepted, it is currently a generally held view, informed by more than 30 years of research in this field.
It is this view that is driving current policy and practice. For example, 20 years ago it was unusual to have a child on a child protection plan because of emotional abuse, now it is the second largest category.
The revised Working Together to Safeguard Children 2013 specifically sets out the need to initiate care proceedings in neglect cases where existing interventions are not working.
But, as always, there are those for change and those against. In response to the government’s announcement, a small group of highly respected academics pronounced “Cinderella’s Law”, as it is being commonly referred to, as “draconian and unhelpful” .
One of the main arguments against updating the definition seems to be that vulnerable victims of domestic abuse, who are already being terrorised by their partners, will be criminalised for allowing their children to be emotionally abused, as will other vulnerable parents.
Action for Children say they are mindful of this potential flaw and have made it clear that if the law is updated it is vital that this is not allowed to happen and, for example, it is perpetrators of domestic abuse who are prosecuted, not victims.
The difficulty with the argument that the law should not be updated is that what is said about those adults who are vulnerable is true of most perpetrators of child maltreatment. We know that the majority of parents who abuse their children, in any way, are people who have grown up with some form of maltreatment themselves.
It is no coincidence that 30% of the male prison population and 44% of the female prison population are care leavers. In my own work in the 20 years I have worked in this field, I have yet to meet a perpetrator of abuse who has grown up in a happy, healthy home.
I regularly meet people, who having read their files, I am apprehensive about meeting, because of their well-recorded violent and abusive tendencies. But the person I come face-to-face with is almost always an abused child inside. (Last week I met someone who murdered his baby. What is his background? Domestic abuse and substance abuse).
Complex and challenging
Both sides seem to agree on one thing, however: that the focus needs to be on early help, identifying concerns early on and breaking that cycle. Undoubtedly that presents huge challenges in the current financial climate, but if we want to reduce levels of child abuse in this country that is where we have to start.
Locking people up is not going to make the difference; we know that from re-offending rates. Prison in this country has a poor record for reducing reoffending – 47% of adults are reconvicted within a year of release.
In any article about the cycle of abuse it is always important to emphasise that there are people who break that cycle and that growing up in care does not always equate to poor outcomes. There are many care leavers who achieve greatness, in whatever they chose to do.
Ultimately, if we believe emotional neglect has as long-lasting an impact as physical or sexual abuse then it’s time to change the law – so each is given the same level of gravitas.
Yes, it’s complex and challenging and I do not believe it will make things easier for those working in child protection, or give them greater clarity, but we need the message heard loud and clear that emotional neglect is every bit as damaging as other types of maltreatment.