Criminalising Parenting Through the Omissions Provisions: An Expanding Creep?

Abstract

In this article we discuss the increasing criminal prosecution in New Zealand of parents for failures to act in relation to their children. These prosecutions are based upon the failures of parents to fulfil the legal duties they owe to their children under the Crimes Act 1961. We survey reported and unreported caselaw, as well as media articles, to compile a list of cases on the public record over the last three decades in which parents have been prosecuted for the breach of their duty to provide their children with the necessaries of life or to protect them from injury. We discuss what appears to be an increasing reliance in New Zealand over time on omissions liability in order to police and criminalise parenting failures. In particular, what appears to have shifted over time is that “supervisory neglect” has begun to be criminalised under these provisions. We define “supervisory neglect” as an instance where parents have made a mistake in caring for their child that has either negatively impacted or had the potential to negatively impact that child, but where the parent’s failure is not easily characterised as “abusive” towards the child. This can be contrasted with situations where a parent has neglected a child’s fundamental needs (for example, food and medical care) over a sustained period of time so that the child has experienced unnecessary suffering (malnourishment and chronic untreated medical conditions) or where a parent is aware that a child is suffering but fails to provide relief (for example, a failure to provide medical care where a child has been obviously injured).

Keywords: Criminal law, parental neglect, expanding criminalisation, parenting omissions