Child Abuse and Criminal Process: Dilemmas in Punishment and Protection
Medicine and Law, Vol. 1, pp. 85-99, 1982
15 Pages Posted: 23 Aug 2010
Date Written: 1982
In jurisdictions following the Common law tradition and indeed in many more, it is usual for suspected child abuse and neglect to be legally approachable through the parallel systems of criminal and civil process. Criminal law and procedure may be applied for the purpose of punishing child victims’ adult guardians, who are often their biological parents, when their conduct has caused or permitted their children to suffer in ways falling within criminal prohibitions. Civil procedures are directed towards direct protection of the children themselves while they are in the continuing charge of their parents or of other legally responsible adults. Protection laws may also provide means for the placement of children at risk with other, approved guardians when parents have been found by judicial determination to be absent, or otherwise to have failed or be likely to fail to satisfy standards of care set by child welfare legislation.
The criminal and civil systems are not mutually exclusive, even when in a given case recourse is made to only one. They may be applied concurrently, or in either sequence. This study is designed to consider incompatibilities in the two systems, and in particular to explore circumstances in which pursuit of the criminal option may be dysfunctional in terms of the protective intention of civil child welfare proceedings. It addresses the need to determine priorities between punishment of guilty guardians and protection in all of its dimensions of their young dependent victims.
Keywords: child abuse, criminal law, civil procedure, punishment, protection
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