The Law and Penalties for the Failure of a Parent to Care for a Child in NSW

By Sahar Adatia and Jimmy Singh.

On November 1, 2018, a mother and father from Port Pirie, Adelaide, were charged with criminal neglect over the alleged treatment of their four-month-old baby who suffered severe dehydration and serious injuries including a fractured skull.

Jeremy Neil Capper, 31, and Ebanee Gayl Coad, 30, were arrested and charged by South Australia Police at their home following a joint investigation with the Department for Child Protection, Child Protection Services, and the Women’s and Children’s Hospital. The boy and two other children aged six and two years old were removed from the Adelaide pair.

The couple faced the Elizabeth Magistrates Court via video link from the Port Pirie police cells where they have been detained since.

The court heard that on September 13, the baby boy was airlifted to the Women’s and Children’s Hospital in Adelaide in a life-threatening condition. Doctors found he was “very close to death” and underwent intensive medical treatment. He is now in recovery.

Port Pirie Parents Refused Bail

While Mr Capper and Ms Coad’s defence lawyer told the court, they would contest the charges and filed a bail application, the parents were ultimately denied police bail after prosecutors changed their mind following an initial grant by Magistrate Yoong Fee Chin.

Speaking in opposition of their release, the police prosecutor said the four-month-old was so critically dehydrated that he was “close to death” and undergoing kidney failure.

“The allegation is that the two accused persons left the child severely dehydrated and it’s alleged that they failed to provide fluids or food to the child for at least several days,” he said.

According to the prosecutor, the baby had endured numerous physical injuries, some of which were several weeks old. Along with a fracture on the left side of his skull, he also suffered broken ribs, severe nappy rash and contact dermatitis.

Addressing the skull fracture, the prosecutor said a possible cause was “a direct blow to the area or the child being dropped and landing on the side of its head”.

He also said the evident bruises on the baby’s head and back indicated those inflicted by another person.

Parents Blame Baby’s Malnourishment on Syndrome

According to the defence lawyer, the four-month-old had been diagnosed with a condition known as Koolen-de Vries syndrome, which results from a chromosomal abnormality. He said that this impacted on the baby’s feeding ability.

“The child was certainly feeding but wasn’t feeing well, as he required feeding not through a bottle but by spoon-feeding or other methods,” she said.

“We say the reason he was malnourished can be attributed to that syndrome.”

The lawyer also defended that the allegations merely surfaced because Mr Capper and Ms Coad took the baby to hospital.

“Once they had realised that he wasn’t in full health, they became concerned and they presented him to hospital,” she said.

Despite contesting the charges, the prosecutor called for a review of the decision for bail by the Supreme Court. The mother and father will remain in custody until that occurs.

For an outline of bail see our page on getting bail.

Understanding Criminal Neglect in Children by Parents or Caregivers

Babies, children and young people in general have a right to be safe in their own homes as well as in the community. This extends to living without violence and abuse. In Australia, child neglect is a crime – and yet it continues to be a prominent issue.

According to the NSW Family and Community Services, neglect is understood as when a parent or caregiver cannot steadily provide a child the basic necessities for his or her growth and development. This includes food, clothing, shelter, medical and dental care, adequate supervision, and enough parenting and care.

Child neglect therefore is also understood as a form of child abuse in that it represents a deficit in meeting a child’s fundamental needs, which ultimately encompasses their physical, emotional and safety needs.

Where physical abuse is encountered, this is understood as non-accidental injury or pattern of injuries to the child or young person caused by a parent or caregiver. Some of these injuries can include those that are the result of excessive discipline, severe beatings or shaking, cigarette burns, attempted strangulation, in turn which cause bruising, lacerations, burns, fractures or dislocation of joints.

The World Health Organisation alerts that when it comes to damage or death in abused children as a result of neglect, it is most often the consequence of a head injury or injury to the internal organs. In young children, head trauma as a result of abuse is the most common cause of death, the most vulnerable children being those in the first two years of life.

Furthermore, when determining the signs of abuse, given the force applied to the body, which passes through the skin, patterns of injury can provide clear signs.

When determining skeletal manifestations of abuse, multiple fractures at varying stages of healing are usually indicative, along with fractures of bones that are very rarely broken under normal circumstances.

The Law and Penalties for Failure of Parent to Care for Child in NSW

A person with parental responsibility who fails to care for a child in NSW can face a penalty of up to 5 years imprisonment pursuant to section 43A of the Crimes Act 1900 (NSW).

You will be guilty of the charge of failing to care for a child if each of the following elements of this charge are proven beyond reasonable doubt by the prosecution in court:

1. You have ‘parental responsibility’ for a child; and
2. At that time, you intentionally or recklessly failed to provide the child with the necessities of life; and
3. That failure caused a danger of serious injury or danger of death to the child.

A child is any person under the age of 16.

A person will be considered to have ‘parental responsibility’ if he/she has “duties, powers, responsibilities and authority in respect of a child that, by law, parents have in relation to their children.”

A person will be considered to have ‘recklessly’ failed to provide a child with the necessities of life if he/she had (at the time) realised the possibility that the child needed necessities of life (medical attention) but ignored it.

Defences to a Charge of Failure of Parent to Care for Child

A failure of a parent to care for a child charge will be dismissed if any one of the following defences apply:

1. Reasonable excused defence: This is where the accused person, for example, failed to provide medical attention to his/her child due to a ‘reasonable excuse’ which can include duress or necessity or threats.
2. Absence of evidence to establish a danger of death or serious injury caused from the failure.
3. Absence of the accused person having ‘parental responsibility’.

The Law and Penalties for Injuries to a Child at Time of Birth in NSW

A person guilty of injuring a child during or after the delivery of the child can face a penalty of up to 14 years imprisonment under section 42 of the Crimes Act 1900 (NSW).

You will be guilty of injuring a child during or after delivery of the child if each of the following elements of the crime are proven beyond a reasonable doubt in court:

1. You intentionally or recklessly inflicted grievous bodily harm to a child; and
2. You did that either during or after the delivery of the child.

Grievous bodily harm (GBH) here means any ‘permanent or serious disfiguring’. It includes a really serious bodily injury i.e. broken bone, penetrating injury to the eye etc.

An injury of GBH can be caused ‘recklessly’ if you realised that a really serious bodily injury or permanent or serious disfiguring may possibly be inflicted on the victim from your actions, yet you went ahead and acted as you did anyway. See the case of Blackwell v R (2011) 208 A Criminal R 392.

Inflicting grievous bodily harm by being reckless is considered less serious than inflicting this kind of injury intentionally. However, it is generally harder for the prosecution to prove you intentionally (rather than recklessly) inflicted this kind of harm.

The Court can draw inferences as to the accused person’s state of mind from the surrounding evidence and circumstances of the case when determining if he/she ‘intentionally’ or ‘recklessly’ inflicted GBH.

Can You Smack Your Child in NSW?

Generally, smacking your own child is not a criminal offence in NSW if it’s done for the purposes of punishing the child, and you did it in circumstances where you are a parent of the child provided that the physical force was reasonable. This is expressed in section 61AA of the Crimes Act 1900 (NSW).

In determining if the physical force applied was reasonable, a Court will consider things such as the age, maturity, health, and circumstances surrounding the misbehaviour of the child.

A court will likely determine that an application of physical force for the purpose of punishment is ‘unreasonable’ if the force applied on the child was to the child’s neck or head, or to a part of the body where the extent of force applied was likely to cause lasting harm for longer than a short period.

The defence of lawful correction can also apply for a person acting for a parent, including, a relative of the child’s parent, or someone the child’s parent has entrusted in the care and management of the child. It also includes a step-father or step-mother of the child or the child’s parent’s de-facto partner.

See our previous blog for a more thorough outline on the law and penalties for smacking your kid in NSW.

Preventing Child Abuse and Neglect

The World Health Organisation advises that while the prevention of child abuse is almost universally proclaimed to be an important social policy, more work needs to be carried out to investigate the effectiveness of preventive interventions.

Currently, programs focus on victims or perpetrators of child abuse and neglect. However, very few emphasise primary prevention approaches directed at the deterrence of child abuse and neglect in the first place.

Similarly, it is also noted that because definitions vary between contexts and laws on reporting abuse do not always require the mandatory reporting of neglect, it is problematic when it comes to estimating dimensions of the problem or meaningfully comparing rates between areas.

Thus, it is argued that more research needs to be carried out on how children and parents or caregivers understand definitions of neglect, which in turn can point to more awareness in prevention.

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