What is Child Abuse?
Child abuse is any action, or lack of action, which jeopardises or damages a child’s (i.e. under the age of 18) physical, psychological or emotional health and development. There are four legally-based parts to child protection:
- Civil Law
- Criminal law
- Family law; and,
- Child Protection Legislation and Children’s Court.
All can be difficult, complex, inconsistent and potentially expensive and exhaustingly unhelpful.
An application can be made for a Protection Order by police, and the matter run by a Police Prosecutor. The prosecutor represents the state, not the alleged victim. The case is based on the civil standard of proof – ‘Balance of probability’ – does the child need protection from the defendant, or not. Simplistically that means, a police officer must decide to apply for an Order, the Police prosecutor present the case, then a magistrate must weigh up whether the need for the protection order satisfies them that it is ‘more probable’, than ‘less probable’ that the child needs protection. Like a set of scales. These Orders can be very useful especially if there are also other proceedings in other courts, but it doesn’t mean that other court will necessarily agree.
The Criminal system places the obligation for prosecution with the State. The State is seen as the real victim, not the actual child. The child is not legally represented – the Public Prosecutor represents the state, and the child – like all victims of crime – has no legal status in court as a victim.A conviction for a criminal offence requires a complaint, an investigation, evidence, witnesses, a prosecution, a court case, and meeting the standard of proof of ‘Beyond a Reasonable Doubt’ and a guilty plea or finding. That is a high standard for a child victim, particularly a young one (under 10) in an extremely complicated legal process that is based on justice for the accused, not the victim. The evidence of children is judged against adult standards of truth. Attempts are underway in NSW to introduce Children’s Champions’ into the court system to attempt to bring a more child- development focus, at least to the court part of the system.
This is party-party litigation, or Civil law. Each side has their own legal representative, but children are not heard by a judge – It can get extremely complicated. The court must decide, on the evidence before it, what access a parent can safely have with a child and requires a very high standard, based mainly on a case from 1938, before excluding a father (if he or other parent/ person) are identified as a serious risk to the child. Complexities around state Child protection caseloads, inadequate investigations and substantiations of harm – particularly in child sexual abuse concerns and the manner and rejection of prosecutions at the state level feeds directly to this court. So a person found not guilty in a state court is unlikely to be seen as a risk to the child, or the other parent, without apparent balancing the bias against the victim in the criminal system. The Family Court has no investigative capacity and must rely on Child Protection findings, even though Child Protection has limited capacity to investigate and so many cases are not investigated.
Did you know that 80% of ‘at risk of substantial harm’ cases are never reached according to FaCS 2014?
Child Protection legislation: FACS and Children’s court
‘The Victorian Ombudsman’s report recognises that the capacity of the department to comprehensively investigate the situations of children reported to them is severely limited, a finding accepted and raised by child protection workers themselves. The Ombudsman goes further to say that the critical response by the department to children in need of care is often inappropriate, and that case-planning for children in the care of the department is often inadequate and poorly executed’. Read more…
According to the Australian Childhood Foundation there are five main types of child abuse with many children experiencing more than one form of abuse. All forms of child abuse and neglect are detrimental to the child and both physical and sexual abuses are crimes (If the Criminal system decides that)
Physical abuse of a child: a parent or carer deliberately or recklessly causing a physical injury to a child. Physical abuse includes: hitting, throwing, burning, shaking, biting, threatening to harm self, them or others, including animals. Some punishments, whilst not causing lasting injury can also be considered physical abuse if they place a child at risk of being hurt, for example, locking a child outside in cold weather, locking in a parked car, denying proper restraint in cars. Note that different courts have different beliefs about what is abuse. What one parent believes is cruel may be seen by a court judge to be ‘strong discipline’.
Emotional and Psychological Abuse: Children don’t get consistent and reliable love, security, affection or attention to develop and feel good about themselves. Emotional and psychological abuse includes: frequent criticism, ignoring, teasing, yelling and rejection, exposure to drug addictions and alcoholism.
Neglect: This is when child’s essential needs for clean food, housing, health & dental care and proper clothing, supervision, protection, education.
Exposure to Domestic or Family Violence: Children exposed to abuse, violence or its aftermath, including to another person, are regarded as victims. Exposure can include witnessing (seeing and hearing) violence or being aware of it happening between adults in the home. Police called to a DV scene are required to report to Child protection if children are present and the victim risks being labelled as ‘unable to protect. Children can then be removed.
Child Sexual Abuse: is when someone bigger or older exposes or involves a child in sexual activity, grooming, watching pornography, or being made to watch other sexual activities. VOCAL suggests you seek guidance from a victim support service immediately.