A Theoretical Framework for Designing and Evaluating Strategies to Identify Cases of Serious Child Abuse and Neglect
Abuse/acts and/or harm(s) of clearly sufficient severity
Abuse/acts and/or harm(s) of clearly insufficient severity
Physical assaults on neonates and infants; serious assaults on older children especially if using an implement; beating, whipping, burning
Minor physical acts for discipline, control or prevention of danger (e.g. crossing the road); reasonable (minor) corporal punishment where legally permissible
All sexual abuse is of sufficient seriousnessa
Not applicable; all sexual abuse is seen as being of sufficient seriousness. Note that consensual peer activity is not classed as sexual abuse
Serious denigration and rejection of the child, persistent and profound lack of emotional interaction/attachment especially for neonates and infants
Occasional name-calling, shouting
Serious medical neglect especially of very young children, serious malnutrition especially of neonates and infants, clearly inadequate supervision, persistent failure to ensure child attends school, household featuring clearly dangerous conditions, e.g. faecal matter and other infection hazards
Occasional failure to provide desirable nutrition or clothing, without clear serious damage to health/well-being; purely poverty-related circumstances which do not cause severe harm
Key Features of Serious Child Abuse and Neglect Which Must Be Considered by Any Theoretical Framework: The Nature and Costs 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.
The Hidden Nature of Serious CAN: Nondisclosure and the Need for Case Identification by Others
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).
The Nature and Purpose of a Mandatory Reporting Law
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.
Provenance of Mandatory Reporting Laws: Kempe, the ‘Battered-Child Syndrome’ and Gaze Aversion
The concern to identify cases of serious child abuse and neglect, and to use the expertise and availability of numerous persons who deal with children in the course of their work, and who can thus act as protective ‘sentinels’ for the child’s welfare (Sedlak and Broadhurst 1996), is the central concept underpinning mandatory reporting laws. This concept remains as true today as it did in animating the first reporting laws. As discussed in more detail in Chap. 1, the first mandatory reporting laws were enacted in the USA between 1963 and 1967 (Paulsen 1967; Nelson 1984). Motivated largely by the recognition of the ‘battered-child syndrome’ (Kempe et al. 1962), these laws were initially limited to requiring medical professionals to report suspected physical abuse inflicted by a child’s parent or caregiver. Kempe had identified not only the situation of severe intentional injury being inflicted on parents but also the widespread reluctance and/or seeming inability of many doctors to recognise it and deal with it appropriately by reporting it to authorities (Bross and Mathews 2014). Doctors’ repeated failure to act on clear cases of violent assault to infants embodied the phenomenon of ‘gaze aversion’; they looked away when they encountered a situation which caused them discomfort or psychological confusion.
Hence, one function of the mandatory reporting law was to place in law the ethical and moral obligations to act on behalf of a vulnerable child who one knew or suspected was the subject of serious abuse or neglect. The law represents the will of the people as represented by Parliament and as such sets down principles of acceptable and unacceptable conduct. The mandatory reporting law states to the community that child abuse and neglect, and children’s rights to security and safety and adequate chance in life, is taken seriously.
Extension of Mandatory Reporting Laws in Some Jurisdictions: After Kempe and CAPTA 1974
The scope of the initial legislation in all states soon expanded in three ways, spurred in part by the 1974 federal legislation: the Child Abuse Prevention and Treatment Act (CAPTA), which allocated funds to states based on the parameters of their laws. First, State laws were amended to require members of additional professional groups to report suspicions of abuse (some states would require all citizens to make reports). Second, the types of reportable abuse were expanded to include not only physical abuse but sexual abuse, emotional or psychological abuse and neglect. Third, the extent of harm required to have been caused or suspected to have been caused to activate the reporting duty was required by CAPTA to be unqualified by expressions such as ‘serious harm’, and this accompanied many states abandoning such qualifications (Kalichman 1999).
The Most Recent Revision of CAPTA
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.
Rights Enshrined in the Common Law and Criminal Law Which Protect Children’s Rights to Physical Security and a Minimum Standard of Care
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.
As with all criminal offences, the criminal offences noted above primarily recognise that these duties are owed not only to the child victim, but are duties owed to the State. This remains so even with modern victims of crime compensation schemes. Yet, alongside the criminal offences, the law clearly recognises the rights possessed by the child victim as having their equivalent in civil law, with this branch of law giving the child victim the right to a personal remedy to gain access to compensation for harm, injury, pain and suffering and other loss (such as lost opportunity and economic loss) and to facilitate health rehabilitation. For both physical and sexual assaults, the relevant causes of action lie in tort law, in trespass to the person (common law assault and battery) and in negligence.8 For neglect, the cause of action would lie in the tort of negligence.
These rights and remedies in civil law rest on foundational concepts resonating with the individual rights and liberties recognised by liberal theory. The basic right underpinning all these is the general legal right to bodily inviolability, or bodily integrity, clearly recognised for at least three centuries.9 The philosophical concept underpinning this legal principle is autonomy (self-rule); that is, an individual has a right to choose what happens regarding his or her own body, and this entails a right to bodily integrity. The principle of autonomy heavily informs the common law in general.10 Autonomy is an interest held not only by parents, but by children. The very basis of tort law is that one individual has interfered with the ‘autonomy’ of another person’s body or private interests, either by an intentional act, a negligent manner of acting or a failure to act when under a legal duty to do so.
The Nature and Scope of Parental Power at Law
As between parents and children, these legal principles are consistent with and flow from the duties of parents which have been recognised at common law for centuries. Parents do not have untrammelled power over their children’s lives, liberties and freedoms; children are not the chattels of their parents. As observed by Locke in 1690 – which we will come to shortly – parents had duties at common law to maintain, protect and educate their children. These duties were reinforced by leading text writers such as Blackstone (1765) and have been reinforced by the House of Lords11 and the High Court of Australia.12 More recent examples of common law authorities referring generally to the duty owed by parents towards their young children can be found in cases of severe child abuse and neglect leading to the child’s death and parental liability for murder or manslaughter.13 Indeed, parental power over their children is exceeded by the Supreme Court in its parens patriae jurisdiction; this recognises that the State is the supreme parent of children for the reason that it has the necessary power to look after those who cannot look after themselves and sometimes has to exert power over children’s lives when parents should not have that power or are otherwise unable to wield it (Seymour 1994).
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.
Social Justice and Individual Rights
The conceptual basis for any law or policy in human affairs in a liberal democratic state must be to promote the key principles with which a liberal polity is concerned. The fundamental position is that individuals, including children, are free and equal and have rights to security and should have equal opportunities which are not unfairly limited by chance or by the typical dimensions of personhood which have historically been used to discriminate against people and perpetrate injustice and undesirable power imbalances: gender, race, religion and class. The essence of the modern liberal project is to promote fundamental ideals of equality, freedom, dignity and autonomy and in an applied sense to do this by creating social conditions that better advance these priorities. Social and legal measures can be devised to help create conditions of lived experience so that these goals are more likely to be achieved for more individuals, and especially those in traditional dimensions of vulnerability, overcoming the natural imbalance in opportunity bestowed by the pure chance of birth and the inequality that flows from that lottery. The creation of better opportunities for those born into less equal conditions translates to provision to these individuals of a higher chance of attaining these core attributes of personal security, equality of opportunity, autonomy and dignity. The benefits of such opportunity creation flow to individuals, communities and the entire society.
In the context of child maltreatment, core ideas and ideals animating this approach can be found in many of the most prominent thinkers from liberal thought and related theoretical positions. While children’s welfare and relations between parents and children have not explicitly occupied a great deal of time in these writings, both classical and more recent, there are sufficient acknowledgments of children’s place in this theory on which we can construct an applied framework. These observations can be seen to resonate with legal principles in common law, which were noted earlier. While the theorists discussed below expound various principles over a time span of more than 300 years, a common strand uniting their ideas is evident: that a genuinely liberal society must not ignore wrongs committed against children by adults, including most significantly by parents and caregivers. Notions of parental liberty should not be unduly privileged over children’s rights to personal security. A just society must include measures to address the vulnerability of children to abuse and neglect and to promote children’s rights to dignity, security, egalitarian treatment and a decent opportunity in life.
John Locke: Within Liberal Society, Parental Power Is Limited and Conditional; Children Have Rights
John Locke’s Second Treatise of Government (1690) has as a starting point that people are born free and equal, meaning not that this is so in reality, but that a legitimate government must be arranged so as to promote this value. For Locke, the legitimacy of government in a political society rested on its central concern to secure individuals’ ‘property’, with ‘property’ embracing not only goods and realty, but the individual’s life, liberty and security. The very reason for government’s existence was to protect and secure the rights of the individual. This purpose of government marked the justifiable parameters of State action. Within the family context, Locke stated that parental power extended only to govern children for their own ‘help, instruction, and preservation’ (Locke 2003, p. 176); it did not extend to life or death or the child’s liberties. The child’s rights were acknowledged: ‘The power of the father doth not reach at all to the lives, liberties and estates of the child, which is only in [the child’s] own disposing’. Parental guardianship was conditional on being appropriately exercised and so could be forfeited (pp. 126–127). These principles were groundbreaking at the time, given the social realities of children’s lived experience and given that, on a broader scale, an institution as fundamental as education did not become compulsory in England until the 1880s. However, the principle of the child’s liberty and right to security of the person – while often breached – can be seen as a logical and long-articulated principle in the liberal framework.
John Stuart Mill: Liberalism Must Protect Children in the Family Sphere
Possibly the most prominent and influential next proponent of children’s fundamental rights in the family and social context was the influential theorist and campaigner John Stuart Mill. In 1859, in his famous work On Liberty, Mill demanded the protection of children from external injury (Mill 1998, p. 14). Significantly, despite all the other contexts in which children suffered various depredations – workplaces such as mines and factories, the street for the homeless and destitute and other institutions such as orphanages – Mill identified the family sphere as the most important domain requiring State control to prevent abuse of power (1998, p. 116). Fundamental to this insight was Mill’s recognition of the link between a distorted sense of parental liberty over their children and the State’s neglect to secure children’s safety (1998