A Theoretical Framework for Designing and Evaluating Strategies to Identify Cases of Serious Child Abuse and Neglect

There are central features of the phenomena and sequelae of child abuse and neglect which must be taken into account by any theoretical discussion. Chief among these are children’s developmental vulnerability, meaning that the youngest children are most frequently victimised; the breach of fundamental rights to bodily inviolability and security; the broad range of serious harms and health consequences to the child, which are both immediate and which endure, thus destroying or fundamentally impeding the development in the child of core capabilities which compromises functioning and flourishing throughout childhood and adulthood; the massive economic cost; and the limited window of opportunity within which important disabling harms can be remedied.

It is important to first acknowledge that there are various dimensions of heterogeneity across and within both the types of maltreatment and their consequences for individuals. The matrix above clearly shows the differences between the kinds of abusive acts constituting maltreatment. Neglect in particular has several different subspecies: medical, nutritional, emotional, educational and supervisory. Different kinds of maltreatment are more likely to present different kinds of consequences for the child; but even within types, and even where the acts are the same kind, duration and chronicity, it is widely accepted that not all individuals will experience the same type or extent of all kinds of physical, social and behavioural consequences (Putnam 2003; Widom 2014).

However, we do know the age profile of victimisation. Evidence from the USA of the incidence of maltreatment and the ages of victims show that for each type of maltreatment except sexual abuse, there is a developmental vulnerability. That is, in general, the youngest children are most often victimised, which is unsurprising since they are the most vulnerable. Hence, infants aged under 1 year of age are most often victimised, followed by infants aged 1, then infants aged 2; approximately one third of all victims are under 4 years old; another quarter are aged 4–7; and three quarters of all victims are aged under 12 (United States Department of Health and Human Services 2006).

In addition, it is broadly accepted that the adverse physical and mental health, behavioural, educational, social and economic consequences of respective kinds of serious abuse and neglect, and coexisting types, are extremely substantial (Gilbert et al. 2009; Paolucci et al. 2001). There are numerous studies and reviews of these consequences, especially in relation to physical abuse (see, e.g. Gershoff 2002; Landsford et al. 2002), sexual abuse (see, e.g. Chen et al. 2010; Nelson et al. 2002; Paolucci et al. 2001; Putnam 2003) and neglect (Hildyard and Wolfe 2002; Perry 2002; Veltman and Browne 2001). There are fewer studies of the effects of emotional abuse, but there is still convincing evidence of its deleterious effects (Egeland 2009). Overall, in addition to fatalities, prominent common effects, which in many cases inherently compromise critical development or which persist through the lifespan, include failure to thrive; impaired brain development; impaired social, emotional and behavioural development; reduced reading ability and perceptual reasoning; depression; anxiety; post-traumatic stress disorder; low self-image; physical injuries; alcohol and drug use; aggression; delinquency; long-term deficits in educational achievement; and adverse effects on employment and economic status. For the purpose of this discussion, what is particularly notable is that it is not simply the physical insults and consequences to the child that are significant; it is the impacts both direct and indirect, immediate and prolonged, on the child’s development as a human – their core capabilities (Nussbaum 2011) – which are crucial. This central point will be returned to in Part 2.

In total, the economic costs to survivors, both in the short term and long term, and to families and communities, are profound. Direct and indirect economic costs at a national level in various countries have been estimated in the billions (Fang et al. 2012; Fromm 2001; Taylor et al. 2008). What is also of fundamental importance, and exacerbated by the fact that developmental vulnerability means that it is the youngest infants and children who are most affected, is that for young children who suffer compromised capacity as a result of this type of disadvantage, the ensuing cost is not only massive but is probably irremediable later in life or is made extremely difficult and costly to remedy. The Nobel Prize winning economist James Heckman and others have highlighted this fact and the necessity of intervening at as early a stage in life as possible (Heckman 2006, 2008, 2013; Heckman et al. 2003; Shonkoff and Phillips 2000). The family environment is a critical predictor of early cognitive and noncognitive ability, and gaps in these skills emerge by age 4–6 (Carneiro and Heckman 2003). Environments that do not develop these skills place children at a disadvantage which may never be restored. Economic return from early intervention is very high compared with later attempts to redress imbalances resulting from deficient family environments (Heckman 2006). Heckman (2012) urged public investment in the provision and development of cognitive skills and socio-emotional and character skills (e.g. attentiveness, impulse control, persistence) for disadvantaged children from birth to age 5.

The need for early identification of serious cases of child maltreatment before the capacity to intervene diminishes or expires appears so evident as to be unassailable. It also seems that intervening with the ‘hardest’ cases of disadvantage offers greatest value. It makes sound economic sense to invest in these domains; while the initial cost may appear high, it is far less than the costs which will otherwise accrue to the individual and society. In addition, addressing early disadvantage in children may also diminish intergenerational cycles of disadvantage.

Serious child abuse and neglect is inflicted in the family sphere. In general, it is unwitnessed by others outside the family, and it is rarely disclosed by the child victim or the adult wrongdoer. Children rarely report their own situation to welfare agencies, accounting for 0.5 % of substantiated reports in the USA in 2004 (US Department of Health and Human Services 2006, p. 20) and 2 % of substantiated reports in Canada (excluding Quebec) in 2003 (Trocmé et al. 2005, p. 876). Parents and caregivers who inflict maltreatment (and perpetrators of sexual abuse) very rarely report their wrongdoing: in the USA in 2004, only 0.1 % of substantiated reports were made by alleged perpetrators and a further 4 % by non-perpetrating parents (US Department of Health and Human Services 2006, p. 20). Without a system where people outside abused or neglected children’s families bring the children’s circumstances to the attention of authorities, many and perhaps most cases will remain hidden. Case finding remains a massive and central challenge.

This is further borne out by the mismatch between the true incidence of serious maltreatment as indicated by population studies and the number of cases brought to light in societies, including those that have adopted mandatory reporting legislation. Even where mandatory reporting schemes exist, many cases evade the attention of authorities for numerous reasons (Mathews and Bross 2014). As well, a large reservoir of cases will not become known to any authority figure (Sedlak and Broadhurst 1996). Population studies of maltreatment generally (May-Chahal and Cawson 2005; Radford et al. 2011; Sedlak et al. 2010),³ and of discrete types such as sexual abuse (Dunne et al. 2003; Finkelhor et al. 1990; Rosenman and Rodgers 2004; Stoltenborgh et al. 2011)⁴ and physical abuse (Rosenman and Rodgers 2004; Straus et al. 1998),⁵ show that the number of cases which becomes known to government agencies is a small fraction of the real incidence.

Nondisclosure by parents and caregivers can be explained by the fact that serious maltreatment is a class of legal and moral wrongdoing which clearly constitutes fundamental breaches of children’s rights, and in many cases the behaviours in question will be criminal acts which also engage the power of the State. Children’s nondisclosure is often caused by the extent of their vulnerability; due to their infancy they are simply unable to do anything to protect themselves. Yet even when older, children’s nondisclosure is influenced by their vulnerability and their situation within a multifactorial and asymmetric power dynamic characterised by the child’s vastly inferior physical, cognitive, psychosocial, emotional and economic capacities. In the case of sexual abuse, which is sometimes inflicted by parents and caregivers, this power dynamic will operate; but even when inflicted by others – most usually, another trusted adult known to the child or an older child – nondisclosure or long-delayed disclosure is still typical (Arata 1998; Paine and Hansen 2002; Smith et al. 2000), due to an inherent power asymmetry and further entrenched by its inherent secrecy; feelings of shame, guilt and embarrassment (Kogan 2004; Ney et al. 1986); threats; and fear of reprisals to the child or other family members (Palmer et al. 1999; Berliner and Conte 1990). Nondisclosure is also strongly indicated in clerical abuse, a situation also characterised by multifactorial power dynamics (John Jay College of Criminal Justice 2004; Parkinson et al. 2010).

As outlined in more detail elsewhere in this book (see Chap. 1), mandatory reporting legislation refers to specific kinds of legislative provisions which impose a duty on specified groups of persons to report designated types of child maltreatment. These designated persons are usually named occupational or professional groups who frequently encounter children in the course of their work. The underlying concept is to impose a requirement on designated people who are well placed to detect cases of severe child abuse and neglect to report known and suspected cases to the attention of government welfare agencies, so that measures can be taken to ensure the child is safe, that the maltreatment stops, that rehabilitation can be provided and that the needs of the child and the family can be identified and supported. For example, if in the course of their work a doctor or a police officer or a teacher encounters a 3-year-old child who has suffered severe intentional physical injury, or injuries suggesting sexual abuse or severe neglect, the legal obligation requires the professional to report their knowledge or reasonable suspicion that the child has been abused and has suffered harm to a government child welfare agency so that the agency can assess the child’s situation to determine what protective and supportive actions need to be taken. The legislation provides the reporter with protections as well: their identity as the reporter is confidential, and they cannot be liable in any civil, criminal or administrative proceeding for any consequences of the report (Mathews and Kenny 2008).

The first primary objective of these laws is to identify cases of serious child abuse and neglect. This remains so, whether the mandatory reporting law adopted in any given jurisdiction is of broader or narrower scope. There are two main ways in which the scope of these laws differs across jurisdictions (both between countries and within countries): which types of abuse and neglect must be reported and by which persons? Hence, there is a spectrum of mandatory reporting laws. At one extreme, a law such as Western Australia’s requires reports only of sexual abuse and limits the reporter groups to teachers, doctors, nurses, midwives and police. At the other extreme, jurisdictions require reports of all four forms of child abuse and neglect, as well as exposure to domestic violence, and apply this duty to a much broader range of reporter groups. After the report is made, it is then up to the relevant child welfare agency to determine the appropriate assessment approach and response to the particular case. In one sense, the reporter’s task is complete once the report has been made, although if the reporter is in a continuing relationship with the child, such as a teacher, the person will have their normal duty to support the child in an appropriate way.

This can be contrasted with the current version of CAPTA which, since 1996, defines ‘child abuse and neglect’ as meaning ‘at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm’ (5106g(2)). The emphasis is clearly on, at a minimum, acts of abuse and neglect which have caused serious harm. The focus on significant or serious harm is explicitly found in the legislation across Australia and in most US State laws. However, some jurisdictions in the USA and Canada have a less explicit focus on significant harm. Some jurisdictions also restrict the duty to cases where not only is the harm qualification present, but in addition, the child does not have a parent able to protect them from the harm.

In their concern to protect children from serious abuse and neglect, mandatory reporting laws clearly parallel other legal remedies in both civil and criminal law. This is particularly the case of physical abuse, sexual abuse and serious neglect, although it is perhaps not as clear in the case of emotional abuse.

To first consider criminal law, both common law jurisdictions and code jurisdictions contain numerous provisions making it an offence to commit various kinds of physical and sexual assault, and these apply where the victim is a child. Examples of offences related to physical assault include common assault, assault occasioning bodily harm, grievous bodily harm, torture, manslaughter and murder. One exception commonly made is to allow corporal punishment, although over 30 countries now prohibit this (Durrant and Smith 2011), and even where it remains permitted, there are limits on its acceptable use so that it must generally be for legitimate discipline or control and must not be unreasonable. Examples of offences related to sexual assault include prohibitions on sexual activity with children, distinct from other sexual offences between adults, including indecent dealing with a child, unlawful carnal knowledge of a child and maintaining a sexual relationship with a child; and general sexual offences will also apply to child victims, including rape and incest. New categories of criminal offence have also recently been created to deal with offences related to the creation, distribution and possession of child pornography (often referred to as ‘child exploitation material’).

Finally, examples of criminal offences related to neglect of children also feature in various forms in virtually all jurisdictions. These offences include criminal neglect and failure to provide necessaries of life.⁶ Some jurisdictions also have the offences of failing to protect a child from harm (see, e.g. the Children, Youth and Families Act 2005 (Vic) s 493), of leaving a child unattended (s 494) and of endangering the life of a child by exposure⁷ – all also being species of neglect.

In a just society, including any liberal democracy, law is a tool for regulating conduct to promote and secure social justice, equality, dignity and fundamental human rights and for creating human capabilities. In Part 2, I will draw together strands of liberal thought to develop a theoretical framework within which the key social policy of mandatory reporting laws can be situated and evaluated. Landmark liberal theories have at their core a focus on the rights and needs of the individual – including the child as an individual – to dignity, equality, freedom, security and, ultimately, a minimal opportunity in life. It will be seen that, alongside the factual situation articulated in Part 1, the theoretical perspectives and concepts fundamental to liberal thought, and hence to a legitimately ordered liberal society, are entirely consistent and compatible with, and in fact require, a device such as a form of mandatory reporting law as part of a functioning child welfare apparatus.