Abstract
While many jurisdictions have adopted mandatory reporting laws of varying dimensions, detailed consideration of their theoretical justifiability is seldom undertaken, either by those who support or oppose the laws, whether within or outside jurisdictions having the laws. Debates about the laws sometimes are not adequately informed and proceed under incorrect assumptions about the nature of the laws, without sufficient consideration being given to their theoretical justifications. In addition, consideration of theoretical bases for the laws rarely takes place in relation to different types and extents of child maltreatment. This chapter proposes a theoretical framework applicable for any society that is considering justifiable and effective policy approaches – including decisions whether or not to adopt mandatory reporting laws – to identify and respond to cases of serious child abuse and neglect. The core of the theoretical framework is based on major principles from both classical liberal political philosophy and leading political philosophers from the twentieth century and the first part of the new millennium, including John Rawls and Martha Nussbaum’s capabilities approach. The principles are also seen to be consistent with long-established fundamental principles recognised by both civil and criminal law. In addition, these principles are situated within and informed by health and economics disciplines.
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Notes
- 1.
A clear challenge is presented by the question of whether and when corporal punishment is ‘physical abuse’. This chapter does not intend to explore this question in detail.
- 2.
According to Glaser’s (2011) typology, there are five categories of such harmful acts and omissions: first, emotional unavailability, unresponsiveness and neglect; second, interacting with the child with hostility, blame, denigration, rejection or scapegoating; third, developmentally inappropriate or inconsistent interactions with the child; fourth, failure to recognise or acknowledge the child’s individuality and the psychological boundary between the parent and the child; and fifth, failure to promote the child’s socialisation within the child’s context, by either active mis-socialisation or corruption, by isolating the child or by failing to provide adequate stimulation and opportunities for learning.
- 3.
In the USA, the fourth National Incidence Study by Sedlak et al. (2010) (NIS-4) found an overall numerical decrease of 19 % in actual harm to children since NIS-3 in 1993. Nevertheless, in the study year 2005–2006, over 1.25 million children were significantly harmed by abuse or neglect (this uses the very stringent actual harm standard, not the endangerment standard; as acknowledged by Sedlak et al. (p 3), this actual harm standard exceeds even the standard used by CPS agencies as the substantiation threshold). The breakdown by maltreatment type was physical abuse (323,000), sexual abuse (135,300), emotional abuse (148,500) and neglect (771,700). Neglect included educational neglect (360,500), physical neglect (295,300) and emotional neglect (193,400). These numbers can be compared with those identified by government child welfare agencies in that year: 899,454, which includes those endangered, not actually harmed (US DHHS 2007). In the UK, May-Chahal and Cawson (2005) found 16 % prevalence during childhood of self-reported serious maltreatment, with the following breakdown by type: physical abuse (7 %), sexual abuse (16 %), emotional abuse (6 %) and neglect (11 %).
- 4.
Finkelhor et al. (1990) found that sexual abuse was suffered by 27 % of girls and 16 % of boys; Rosenman and Rodgers (2004) found that before age 16, 1.1 % experienced sexual abuse by a parent. Dunne et al. (2003) found that before age 16, 12 % of girls and 4 % of boys experienced penetrative abuse and 33.6 % of girls and 15.9 % of boys experienced non-penetrative abuse.
- 5.
- 6.
For example, under the Criminal Codes of the Northern Territory, Queensland, Tasmania and Western Australia, it is the duty of every person who has the care of a child under 16 years old to provide necessaries of life to the child (Criminal Code (NT), s 149; Criminal Code (Qld), s 286; Criminal Code (Tas), s 145; Criminal Code (WA), s 263). Comparable provisions exist in the other non-Code Australian jurisdictions, including Crimes Act 1900 (ACT), s 39; Crimes Act 1900 (NSW), s 43A; and Criminal Law Consolidation Act 1935 (SA), s 30. For a case example of fatal neglect, see Ebony’s case: R v BW and SW (No 3) [2009] NSWSC 1043.
- 7.
Criminal Code 1899 (Qld) s 326; Crimes Act 1900 (NSW), s 43; Crimes Act 1900 (ACT), s 41 (child under the age of 2 years); Criminal Code (NT), s 184 (child under the age of 2 years); and Criminal Code (Tas), s 178 (child under the age of 14 years).
- 8.
In AB v Victoria (Unreported, Supreme Court of Victoria, Gillard J, 15 June 2000), a Victorian jury found a government school principal and deputy principal liable for failure to report what was found should have amounted to a reasonable suspicion that the child had been and was being sexually abused. The action was pleaded in negligence, with the failure to report occurring in 1991–1992. This was before Victoria introduced legislation in 1993 requiring teachers to report suspected child sexual abuse. The student was awarded $494,000 in damages for the contribution of the failure to report to her subsequent suffering of abuse by her stepfather and consequential injury. A common law duty has been held to coexist with mandatory reporting obligations in the USA (Landeros v Flood (1976) 551 P 2d 389) and Canada (Brown v University of Alberta Hospital (1997) 145 DLR 4th 63).
- 9.
Cole v Turner (1704) 6 Mod 149; Collins v Wilcock [1984] 1 WLR 1172.
- 10.
Stuart v Kirkland-Veenstra (2009) 237 CLR 215 at 248.
- 11.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
- 12.
Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion’s Case) (1992) 175 CLR 218.
- 13.
R v BW [No 3] [2009] NSWSC 1043; Sam v The Queen (2011) 206 A Crim R 67.
- 14.
This might have been based on a view that only a ‘reciprocator’ can possess a right. On that view, rights and duties are correlative and reciprocal so to every right you have there is a corresponding duty that you owe. On this view, children owe no duties, so could not have rights. On this view, having an interest is not the same as having a right, and we might well have obligations to children based on their capacity to have interests, but these obligations cannot be cashed out in terms of corresponding rights. Others, with whom I agree, would argue that possession of interests is sufficient to bear rights, and one does not need to be a reciprocator to have rights.
- 15.
Nussbaum notes that creative solutions may play a part. An example from the Indian state of Kerala, which combined provision of education with a midday meal to children; this overcame a social obstacle presented by children’s wage-earning for families previously outweighing the advantage seen in allowing children to attend school. Subsequently, illiteracy has been almost eradicated and India’s Supreme Court requires all government schools in the country to provide such a meal.
- 16.
Justice between nations, justice for the disabled and justice for animals.
- 17.
In my view this is consistent with an even more developed version of Rawls’s social contract, original position and veil of ignorance. If the rational actor in the original position was approaching the situation with knowledge that certain conditions were required in childhood to enable development and flourishing, then those conditions would have to be adequately considered. That is, they would have to consider the position not just of adults ‘fallen from the sky fully formed’ into such a society; they would have to consider also and especially the developmental requirements of humans from birth. Hence, the exercise requires a second dimension of imaginativeness and a third dimension of empathy.
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Acknowledgements
I am grateful to colleagues for comments on an earlier draft of this paper: Dr. Andrew McGee from QUT’s Australian Centre for Health Law Research, Dr. Kerryann Walsh from QUT’s Children and Youth Research Centre and my co-editor of this volume Professor Don Bross.
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Mathews, B. (2015). A Theoretical Framework for Designing and Evaluating Strategies to Identify Cases of Serious Child Abuse and Neglect. In: Mathews, B., Bross, D. (eds) Mandatory Reporting Laws and the Identification of Severe Child Abuse and Neglect. Child Maltreatment, vol 4. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9685-9_7
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