Neglect and abuse towards children is a controversial contemporary issue in today’s society as the perceptions regarding the care and protection of children are constantly shifting. However the main purpose of the law remains “the best interests of the child”. The Family Law Act 1975 (Cth) defines family violence as “any action or threat of violence by one family member against another, including witnessing that action or threat, that causes fear or apprehension about personal safety”. The amendments to the Act endeavoured to ensure that children are protected from both direct harm and from harm resulting from exposure to family violence.
The presumption of equal shared parental responsibility does not apply if there is a risk of child abuse or family violence. The issue of neglect and abuse of children is a State issue and is a criminal offence under the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Crimes Act 1900 (NSW). The penalty is either imprisonment of a fine of up to $22,000. Neglect is the continued failure of a parent to provide a child with the basic things needed for proper growth and development such as food and medical care. Internationally, the main convention regarding children is CROC.
This convention recognises the fact that children, because of their vulnerability, need special care and protection and it places special emphasis on the primary caring and protective responsibility of the family. Under international law, CROC states that persons under the age of 18 must be protected from violence, discrimination, exploitation and neglect. The care and protection of children are no longer matters for parents to decide. Children have greater rights and awareness. This is evident in the case of Marion in 1991.
Marion’s parents had applied to the family court for authorisation to permit their daughter to have a hysterectomy on the belief that it would relieve the stress of menstruation and effects of the hormones on her behaviour. Marion was 13 years old with an intellectual disability; she was severely deaf, suffered from epilepsy and other physical disabilities. By a majority a full sitting of the High Court decided the Family Law Act (1975) gave Marion’s parents the responsibility to authorise a sterilisation without a court order. However the case was appealed and the High Court reversed the decision, stating that the parents would need a court order to authorise the procedure.
An article in the SMH on the 1st of July, 2010 titled “Reports of Child Neglect Hit 30%”, notes that one third of the State’s 16 year olds have been reported to Community Services at least once in their life because of neglect. Recently the most severe case of neglect is the Ebony case where the judge stated “she was a subject of the most profound neglect and abandonment”. In the article from the SMH “Four Jailed For Abuse of Children” in 2011, four people involved in South Australia’s so called “House of Horrors” have been jailed for at least 6 years for starving 5 children and forcing them to stand in line for days on end.
A Supreme Court judge described the abuse as “beyond comprehension” with the children, aged between four and seven at the time, fed only scraps of food over a four-month period in 2008. The five siblings were among 21 children living in a house in Adelaide’s Northern Suburbs. Justice Kevin Duggan said the accused were “all involved in the daily routine of cruel punishment and deprived the children of proper food”. Justice Duggan said the deteriorating and serious condition of the children would have been obvious to everyone in the house, which was not fit for human habitation.
These days, there seems to be a fine line between discipline and abuse. Whilst people can be sanctioned for smacking their children in public, the law seems ineffective because these horrific cases continue to happen. The Crimes Act 1900 (NSW) states that while parents have the right to discipline their child, the physical force must be “reasonable, having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.” In 2001 this Act was amended by the Crimes Amendment (child protection-physical mistreatment)
Act 2001 to limit the use of excessive physical force to punish children. The law now says that the use of physical force to punish a child, except where it is considered to be trivial or negligible, is not acceptable. This legal change was necessary and effective in protecting the rights of children in regard to abuse. Parents and carers who physically mistreat their children can be charged under this law. In the article “Smack the Child, Go to Jail, Parents Pressured” (SMH) Australian courts have gone further, banning parents from physically disciplining their children altogether.
The family court last year restrained a mother from using physical punishment against her children aged 9, 10 and 12. In a 2007 case where a father smacked his 3-year-old son for refusing to pick up his toys, Justice Mark Le Poer Trench said “there can be no defence of corporal punishment for young children in an advanced Western civilised society.” Similarly in June a forty-two year old Darwin father was reportedly fined $1000 for smacking his five year old daughter with a belt four times on the bottom. “In the modern age, physical punishment of children is seen to be barbaric” the Magistrate said. This is a good example of cases where the law is seen to be effectively protecting the rights of the child … which should be the primary concern in a progressive democracy.
The legal system if both effective and ineffective when dealing with family law in regards to same sex marriage, adoption and the care and protection of children. The laws passed on the whole do not represent society’s viewpoints as almost 70% of the Australian community support same sex marriage. Justice requires the government to change laws to make marriage available to all Australians who choose it. Justice has been achieved as same sex couples can now adopt in some states. The care and protection of children is a very controversial issue, which is governed by the law. The law is effective in protecting the rights of children and the best interests of the child remain the main purpose of the law.