Defining child abuse and neglect is not straightforward. The law defines child abuse and neglect in various ways. Regardless of the legislation, however, the decisions about whether children have been abused or neglected in such a way as to warrant State intervention are necessarily subjective judgments.
They are ‘defined within the context of what is seen to be “normal” or “normative” and deviant child-rearing behaviour of the time’. (Confronting cruelty: Historical perspectives on child protection in Australia, D Scott & S Swain, Melbourne). Since the late 1960s, awareness and concern about child abuse have increased markedly. Definitions and interpretations of what is abusive have broadened from the ‘battered babies’ described by Kempe in the 1960s to include the ‘physical abuse of children of all ages, to failure to thrive, neglect, psychological and emotional abuse, and sexual abuse’. (C H Kempe, 1978, cited in D. Gough, ‘Defining the problem’ Child Abuse and Neglect, 20, 1996, p. 994) More recently, definitions of abuse have been extended to include exposure to domestic violence, as concern and understanding about its effects on children’s social and emotional development have increased.
Although there may now be general acceptance of the responsibility of the State in relation to the safety, welfare and wellbeing of children, views over time and across cultures vary markedly on the particular circumstances in which State intervention is seen to be warranted. While there is likely to be agreement about the need to intervene when children are sexually abused, deliberately burnt, severely beaten or neglected to the point where their health and development are jeopardised, there is little agreement about less extreme forms of parental behaviour, and at what point these cross the line to become abusive, harmful or ‘not good enough’. When does constant belittling become emotionally abusive, minimal supervision become neglectful, and bodily punishment physically abusive rather than ‘reasonable chastisement’? How is the State to know and assess poor versus abusive or neglectful parenting? What form of intervention is warranted? Under what circumstances? And when do interventions that remove children from their families do more harm than good?
Beliefs about what constitutes acceptable and abusive behaviour towards children have changed over time, but they are also culturally determined, and may vary across subgroups within a culture (for example, different social classes). This can create some difficulties for a multicultural society such as Australia, as anthropologist Jill Korbin explains:
Failure to allow for a cultural perspective in defining child abuse and neglect promotes an ethnocentric position in which one’s own set of cultural beliefs and practices are presumed to be preferable to others. On the other hand, a stance of extreme cultural relativism, in which all judgements of humane treatment of children are suspended, may be used to justify a lesser standard of care for some children.
(See ‘Cross-cultural perspectives and research directions for the 21st century’ J.E. Korbin (1991), Child Abuse & Neglect, 15, Supplement 1, p 68.)
Korbin pointed to examples of Western child-rearing behaviours (such as leaving babies and infants to sleep alone in separate rooms and the use of ‘controlled crying’) that are regarded by the members of some other cultures as abusive.
In practice, child abuse and neglect are defined both by state and territory legislation and by the decisions people make in referring suspected abuse and neglect to child protection services, and by the responses of those agencies to the referrals.
NSW Child Protection Law
The legislation that governs child protection in New South Wales is the NSW Children and Young Persons (Care and Protection) Act 1998, most of which came into effect in December 2000. Recent amendments came into effect in October 2014. The main object or aim of the Act is to provide that ‘children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them’ (section 8(a)). The Act goes on to specify that parents and those responsible for children’s care should be given ‘appropriate assistance’ to do so and that ‘all institutions, services and facilities responsible for the care and protection of children provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity’ (section 8 (b) and (c)). In changes made in 2014 (see box below) a new object was inserted (section 8 (a1)) to give 'recognition to the need for long-term safe, nurturing, stable and secure environments to best provide for the welfare of children and young people through permanent placement in accordance with "permanent placement principles"'.
Under NSW law, child abuse and neglect are dealt with as part of a broad category of circumstances that require the need for consideration of outside intervention where a child is perceived to be at ‘risk of significant harm’. These circumstances include where:
- the child’s or young person’s basic physical or psychological needs are not being met or are at risk of not being met;
- the parents or other caregivers have not arranged, and are unable or unwilling to arrange, for the child or young person to receive necessary medical care;
- the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated;
- the child or young person is living in a household where there have been incidents of domestic violence and, as a consequence, the child or young person is at risk of serious physical or psychological harm;
- a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm; and
- where there are reasonable grounds to suspect that an unborn child may be at risk of significant harm after birth and the birth mother has not successfully engaged with support services to eliminate or minimise that risk to the lowest level reasonably practicable. (Children and Young Persons (Care and Protection) Act 1998, section 23.)
A child is a person under 16; a young person is a person who is aged 16 years or above but is under the age of 18 years (Children and Young Persons (Care and Protection) Act 1998).
Objects and guiding principles
Decisions made under the Children and Young Persons (Care and Protection) Act 1998should be consistent with the objects and guiding principles of the Act.
In summary, these objects and principles include:
- The safety, welfare and wellbeing of the child is the ‘paramount’ consideration (meaning the most important consideration).
- Children are entitled to an environment free of violence and exploitation, and one which fosters their health, developmental needs, spirituality, self-respect and dignity.
- Where appropriate, assistance should be given to parents or other people caring for children in order to promote a safe and nurturing environment.
- The views of the child are to be taken into account, to the extent appropriate given the circumstances and the child’s level of maturity: see Mandatory Reporter Guide.
- Children are to be given the opportunity, information and assistance necessary to help them express their views and participate in decisions significantly affecting their lives.
- Also to be taken into account are the culture, language, religion, disability and sexuality of the child or young person, and of the parent or other person with parental responsibility: see sections 8 and 9 of the Act.
In relation to Aboriginal and Torres Strait Islander children:
- Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young persons with as much self-determination as is possible (section 11).
- Aboriginal and Torres Strait Islander families, kinship groups, representative organisations and communities are to be given the opportunity to participate in decisions made concerning the placement of their children and young persons and in other significant decisions made under this Act that concern their children and young persons (section 12).
Who abuses children?
Children are most commonly abused and neglected by those who are in positions of care and closest to them – their parents and/or caregivers, with the exception of sexual abuse. This is not surprising since ‘children spend most of their time with their parents and are reliant on them for care, nurture and protection’. Child sexual abuse, however, is perpetrated by a wider group of people, including parents, step-parents, other relatives such as grandfathers, uncles and siblings, friends or others known to the child (eg, sports coach, teacher, priest). (Who abuses children? A Lamont, National Child Protection Clearinghouse Resource Sheet, 2011. Melbourne: Australian Institute of Family Studies, page 2.)
Abuse and neglect in australia
There are no reliable statistics on the prevalenceof child abuse and neglect in Australia, ie, the number of children in Australia who have experienced child abuse and neglect. The available statistics dealing with the incidence of abuse and neglect come from reports to the various statutory departments in each state and territory. These reports include concerns about children that are substantiated and also concerns about children thta are not found to be at significant risk of harm, concerns that are not considered serious enough to be investigated and reports that are vexatious. On the other hand, it is also clear that not all abuse and neglect is reported. There is an unknown number of children who have been abused and/or neglected but are not the subjects of reports, are not recordedor reports are not substantiated.
'Substantiated'means that the statutory department investigated the report and concluded that the 'child has been, is being or is likely to be abused, neglected or otherwise harmed'.
The most reliable figures of reported child abuse and neglect are collated by the Australian Institute of Health and Welfare (AIHW), based on information supplied by the states and territories, using an agreed general definition of abuse and neglect to take into account the significant differences between the states in relation to their legislation, policy and practice.
Australia’s figures compared to other countries
It is difficult to compare the prevalence of child abuse and neglect across jurisdictions and especially across countries because there is a great deal of variation in how abuse and neglect are defined and how they are reported and recorded and dealt with. Countries where mandatory reporting is a central feature of the child protection system (Australia, United States and Canada) do, however, have markedly higher reporting rates than other English speaking jurisdictions, and non-English speaking Western European countries.
Families in which child abuse and neglect are reported have been identified as having several common problems:
- family violence
- parental drug and alcohol abuse (Improving outcomes for children living in families with parental substance misuse)
- parental mental health problems.
Each of these problems can diminish parents’ capacity to provide adequate care for their children (The impact of exposure to domestic violence on children and young people: A review of the literature’, S Holt, H Buckley & S Whelan, 2008, Child Abuse and Neglect, 32, 797–810) especially if parents are isolated, and struggling with other problems such as poverty, unemployment or homelessness. (Issues for the safety and wellbeing of children in families with multiple and complex problems). When drug and alcohol abuse, mental health and family violence occur together (as is often the case in families that come to the attention of statutory departments such as Community Services), the risks for the safety and wellbeing of the children multiply. (‘Think child, think family: How adult specialist services can support children at-risk of abuse and neglect’, D Scott, 2009, Family Matters, 81, 37–42) 'Even before birth, babies in the womb experience the adverse effects of poor diet, drugs and alcohol use, or violence perpetrated on their mother’. (Issues for the safety and wellbeing of children in families with mutliple and complex problems.) It is also quite common for parents in these circumstances to be dealing with their own history of abuse, neglect and trauma.
Over-representation of aboriginal children
Indigenous children in 2012-2013 were 10.6 times more likely to be in care than non-Indigenous children ie 57.1 children per 1000 were in care.
The over-representation of Aboriginal children and children from female-headed single-parent families in child protection and out-of-home care highlights a number of the recognised risk factors for physical and emotional abuse and neglect:
- lack of resources
- social stress
These factors do not directly cause child abuse and neglect but, together with other problems such as family violence, mental health problems, alcohol abuse, they clearly increase the risk of abuse and neglect, especially when they are not counteracted by protective forces such as social and community support.
Past histories of abuse and neglect: intergenerational transmission
‘It is widely believed that children who have been maltreated are more likely to become abusive toward their own children as adults, continuing an intergenerational transmission of abuse. Some individuals who have been abused or neglected as children will go on to abuse or neglect their own children, however, from the limited evidence available it is important to note that most people who have been abused or neglected do not become abusive or neglectful.’
(A Lamont (2011). Who abuses children? National Child Protection Clearinghouse Resource Sheet. Melbourne: Australian Institute of Family Studies, p. 5).
Intergenerational factors - case study
Emily died when she was six months from a viral infection. Emily had not seen a doctor before she died. Emily’s mother Suzanne had two other children who were placed with Aboriginal kinship carers under the parental responsibility of the Minister when they were toddlers. FACS made a care application to the Children’s Court after a number of concerns were reported about the children being neglected and Suzanne’s heavy drinking and serious mental health issues.
Suzanne has an extensive history of involvement with child protection services as a child. Suzanne was part of a family of eight children and had been reported to FACS since she was a baby due to neglect and her mother’s drug use. Throughout her childhood, Suzanne was the victim of sexual abuse from a number of offenders, which began at a very young age. Suzanne and some of her sisters and brothers were removed when she was 10 years old and placed with kinship carers. After she was removed Suzanne continued to be reported to FACS due to neglect and domestic violence.
Emily and Suzanne’s story provides insight into the experiences of many vulnerable Aboriginal children in NSW. The statistics also show the serious disadvantage that Aboriginal children can face and our reviews often highlight systemic and structural problems with how the child protection system responds to Aboriginal children at risk.
[Reproduced with permission from Department of Family and Community Services Child Deaths 2013 Annual Report (page 28)]
Consequences of abuse and neglect
There is now considerable research that indicates the negative effects of abuse and neglect on children’s behaviour and development. Children who have been abused and neglected tend to lack confidence and are more likely than children who have not been maltreated to have problems in forming relationships and trusting others. They perform poorly at school, suffer depression and have behaviour problems, including exhibiting aggressive behaviour. Recently, research on child brain development has thrown light on the effects of abusive and neglectful care on young children’s developing brains and the longer-term outcomes for children and young people. Early intervention with children to prevent or minimise the risk of abuse and neglect is vital to them the best chance to overcome these negative outcomes.
Children are often subjected to more than one form of maltreatment, for example, physical and emotional abuse (hitting and belittling) together. The statistics refer to the maintype of maltreatment that is substantiated, which can be misleading.
Neglect is the most common type of maltreatment that is substantiated in NSW (31.9% of substantiated reports). 'Neglect' is defined as ‘any serious omissions or commissions by a person having the care of a child that, within the bounds of cultural tradition, constitute a failure to provide conditions that are essential for the healthy, physical and emotional development of a child’ (AIHW, Child Protection Australia 2012-2013, Table A11, p. 80).
Emotional abuse is the second most common type of maltreatment in NSW (30.1%) and the most common across Australia (38.3%). 'Emotional abuse' is defined as ‘any act by a person having the care of a child that results in the child suffering any kind of significant emotional deprivation or trauma’ (AIHW, Child Protection Australia 2012-2013, p. 80). This includes children’s exposure to violence between family members, most commonly their parents or their parent and the parent’s partner.
Physical and sexual abuse
Physical abuse and sexual abuse comprise 19.1% and 18.9% of substantiated reports in NSW. Physical abuse is defined as ‘any non-accidental physical act inflicted upon a child by a person having the care of a child’ and sexual abuse is ‘any act by a person having the care of the child that exposes a child to, or involves a child in, sexual processes beyond his or her understanding or contrary to accepted community standards’.