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SEWELL Martun

Martin Sewell is a family solicitor.

The proposal to introduce a new “Cinderella” criminal offence of child emotional abuse is one of those superficially attractive proposals which politicians calculate can be introduced to widespread popular acclaim. Like motherhood and apple pie, we can all be united about this plan, if little else, and it feeds the interventionist zeitgeist of “You’ve got a problem – we’ve got a legislative solution”.

It builds upon a simple premise. The other principle causes of state intervention into families, those of sexual and physical abuse, have their criminal counterparts, so there is an all too attractive superficial logic that the equally damaging harm of emotional abuse needs its offence, too.

Those who work in the field of child protection law may begin to raise concerns in future months however, and MPs need to engage with the critique with care, consultation and patience.

Emotional abuse is a commonly pleaded feature of almost all of the cases which pass through the family courts. If you sexually abuse your children or break their bones, you are almost inevitably emotionally harming them, but the potential for this offence does not stop there.

There is the gray area in which emotional neglect shades into emotional abuse; periodic low level deliberate scorn can be less harmful and erosive than long term indifference. Emotional neglect is not an action, a product of volition, but rather a description of faulty relationship, with a multilayered complexity of component parts. The largest cohort of losers in the family courts are not the deliberately cruel, but the children of previous state interventions, whose experience of institutional care leave them not only inadequately equipped to deliver consistent high quality emotional nurture, but incapable of comprehending what they are doing wrong, even as a phalanx of competing experts parade the latest theories on child attachment, bonding theory and the interventions necessary. These things move in trends and fashions: George Bernard Shaw’s Doctors Dilemna could have been written for this area of practice.

When an intervention could be recommended to resolve such a frailty relationship, the hapless parent is already running into a number of pre-existing barriers. Procedural changes under past and present Governments have all but removed the option of the residential assessment, where parents with prospects of change were simultaneously taught, monitored, and assessed over several months. It was slow, patient and expensive work which needed skilled and experienced practitioners, lawyers and independent Children’s Guardians to guide.

Financial strictures have removed that option and many family centres have also closed: intervening social workers and guardians are routinely required to have only three years post qualification experience, and legal aid reductions have made proper practice all but unviable in the majority of cases. Not only must cases now be resolved within six months, but lawyers are incentivised financially to persuade their clients to give in early. Children are now virtually administered into public care on a fast track, low cost conveyor belt.

I outline this just as a warning against the assurance that these offences are nothing to worry about, and just a little modernising/catching up with other countries.

This new offence will be predicated on expert opinion within a field in which opinion and interpretation shifts. In many cases, tell me who you chosen experts are and I will tell you the result. Even if the data is agreed, the causation will be frequently problematic.

Consider the victims of the recent grooming cases. Statistically, and depressingly, there is a high likelihood that their experiences will have placed them at increased risk of statutory intervention when they have children in due course. Those who could not recognise their own abuse are ill equipped to monitor their own delivery of child-centred parenting. It is bad enough that in such cases these young people were let down by all the statutory agencies. We shall now compound the misery by not only removing children from those who do not comprehend the deficiencies, but criminalising them too.

Before moving on, should we not ask if we would also be prepared to equally prosecute the social workers and their managers for emotional abuse when they have also failed, having acquired a sharing of parental responsibility through statutory intervention?

These are not trivial questions.

If child protection work is undertaken carefully and with expertise, the issues can be very complex. A simple issue such as a broken bone can raise question way beyond the once fashionable ” brittle bone disease defence”. Timing is often an important question and yet it is no exact science: much depends a subjective interpretation of x-rays, and experts do sometimes disagree, especially in the case of the very young child. How much more complex do you imagine it will be for an analysis of a child’s emotional history, especially if there have been multiple carers for whatever good or bad reasons?

With the de-skilling of the professions, there is much room for concern. I recall the steep learning curve we all went through over ” format interviewing” when experts used a structured system of questions which seemed innocuous until you had seen it several times and then realised how manipulative that can be.

” Do mummy and daddy argue?”
” Have you heard it once or more than once?”
” How does it make you feel?”
” Do you want us to make it stop?”

It is a short step from here to an expert assuring the Court that unless statutory intervention occurs long term emotional harm is a “very real possibility”.

Before introducing a new offence it might be worth considering who might be swept up in it. Will we see the middle class custody battlers prosecuted for tearing their children apart? Will the child denied contact with a much loved grandma see her vindictive mother in Court? Will the career couple with a succession of nannies, dinner parties and extra curricular activities, find themselves under scrutiny? Not all child emotional neglect occurs on Benefit Street – though the social services rarely pick on those equipped to fight back.

Nobody excuses child abuse. I have been instrumental in the removal of hundreds of children from their parents, and did so with a clear enough conscience – though not a total confidence that we always got it right. The legal landscape has changed, however, and the protections against injustice against vulnerable parents are weaker through legislative policy and financial changes. If there is money to be spent, then it is better allocated to proper intervention and rehabilitation, rather than in extending the prospects of prosecution.

We have removed hundreds of millions of pounds from the legal aid budget, and left parents unguided or supported during times of family stress. Judges are already struggling to protect children’s interests within broken families who appear before them unrepresented, unadvised and frequently so angry and bemused that they are unable to see the woods for the trees. These are not bad people or cruel people, but their children do suffer within the current theatre of inexpertise.

Some campaigners are saying many hundreds if thousands of children are emotionally abused: if so, do we really have the resources or the motivation to prosecute, when our politicians have removed many of the resources that used to help triage the bad case from the simply overwhelmed or previously abused parent?

The truly cruel are doing other things to bring them within the remit of prosecution; this law will add little to child protection. Introducing a Cinderella law when all you can throw at the problem is buttons makes no sense.

15 comments for: Martin Sewell: The Cinderella Law that doesn’t come with a happy ending

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