Protecting the children, 50 years later, part two | Marvin Zuker

By Marvin Zuker

Law360 Canada (June 8, 2023, 10:48 AM EDT) --
Marvin Zuker
Marvin Zuker
Reporting statutes are ineffective unless reported children are, in fact, protected from further injury and offered a chance of a brighter life with a foster family, should remaining at home prove impossible or unsafe.

The depth of concern in the United States with child abuse is measured by the fact that within a four-year period, between 1963 and 1967, all American states had enacted battered child reporting laws. Obviously, however, the battered child has not been legislated out of existence. The highlights of the 1975 National Data on the study on child neglect and abuse reporting published by the Children's Division, American Humane Association indicates that a total of 307,778 children were involved in reported cases.

Statutes making reporting of child abuse incidents mandatory not permissive exist in all but six American states. The filing of any child abuse reports are not restricted to medical personnel alone. As one can read from the following sources of the aforementioned 307,778 children, only 10.2 per cent were in the medical field.

Sources

Agency sources (public and private social agencies, schools, and school personnel, law enforcement, courts, hotlines) 39.6 per cent of all reports;

Individuals (neighbours, friends, relatives, siblings, self-referrals) 40.0 per cent of all reports;

Medical (hospitals, physicians, nurses, coroners, medical examiners, others (unspecified)) 10.2 per cent of all reports.  

Twenty states include nurses, 12 include social workers and 12 include teachers and school principals. Latest figures in Ontario only hint at the surface of the problem since statistics reflect only cases of verified physical abuse reported by children’s aid societies.

The number of cases reported to the Child Abuse Registry of Ontario was 407 in 1970, increasing to 769 in 1975. But unreported and untreated cases are thought to amount to about 3,000 a year in Ontario, according to Dr. Robert Bates of the child abuse program at the Hospital for Sick Children. Regrettably, gross neglect, sexual abuse and high risk, as well as physical abuse are not reported.

Just as any model statute should not restrict those who must report, the reporting itself must not be limited to serious physical injury. Both abuse and neglect should be defined. Abuse under s. 3 of The Abused and Neglected Child Reporting Act of the state of Illinois enacted in 1975 means any physical injury, sexual abuse or mental injury inflicted upon a child other than by accidental means by a person responsible for the child’s health or welfare. ... [Neglect means] a failure to provide, by those responsible for the care and maintenance of the child, the proper and necessary support, education as required by law, or medical or other remedial care recognized under state law, other care necessary for the child’s well-being; or subjecting a child to an environment injurious to the child’s welfare. ...

Consideration must also be given to the maintenance of a complete provincial-wide registry. Doctors and social workers, among others, must be able to more readily determine if the child with whom they are now concerned has in fact been previously reported as a battered child.

Interestingly, in the United States, the existence of a central registry used for anything but statistical purposes has raised sensitive issues of privacy. Diligence and caution should be exercised so that cases in which abuse was not found to have occurred can be removed from the registry.

Doctors must also be totally immune for reporting cases of suspected child abuse. Section 49 (3) of the Child Welfare Act of Ontario now seems to clothe those that report cases of child abuse with immunity from criminal prosecution but does the immunity herein extend to civil actions?

Finally, of course, any Ontario reporting statute in my opinion should carry with it criminal penalties for failure to report. At the least, we are talking of a summary conviction offence. The failure by anyone to report his or her findings when they have a statutory duty to do so should not only include the possibility of prosecution but also civil liability. Violation must be negligence per se. How can we attempt to solve the problems of the battered child?

Recommendations

1. News and communications media, as well as professional societies, must alert and inform the public of the existence of child abuse and what are their duties concerning it. Concurrent with education is research on the problem itself and on the ways to solve it, including new legislation. Various psychological tests must be formulated to determine potential abusers, and attempts will then be made to give them professional counselling before they injure their children. This is extremely important, because many children die as a result of the first episode of abuse. To identify the abuser after the fact obviously cannot help the dead victim, but it can focus attention on his siblings who may also be objects of abuse.

2. Child abuse teams must be used in our hospitals. Such teams should consist of representatives of the various disciplines that may be involved with every battered child, such as the emergency room physician, pediatrician, social worker, psychologist, psychiatrist, clergy and lawyer. Child abuse could be established as a separate medical subspecialty.

3. Child abuse centres should be established in the many cities where abuse is common or increasing in incidence. In such centres, all the necessary protective services must be made available to the child and his family. These important units should be vigorously supported by the community.

4. Parents Anonymous groups, as in Toronto, should be formed in every major city. Their members, who themselves may be abusing parents must attempt to assist in the counselling and rehabilitation of potential or actual abusers who seek help. They should staff a hot-line telephone number and be readily available. Having faced their own problems, these people would be sympathetic and supportive of a frantic parent who is afraid he will lose control and lash out at his child.

5. Daycare centres and special day nurseries should be encouraged in order that distressed, harassed guardians can be provided with a safe place to leave their children for a few hours each day, thus relieving themselves, for a while, of their problems and stresses.

6. A Bill of Rights for Children should be incorporated into our statutes. Such a law would enumerate specific rights and responsibilities of children as well as the resources available to them in time of trouble. Lawyers must be able to appear in court on behalf of abused children on a pro bono publico basis. They would fill the void of the lack of lawyers representing the rights of children.

7. Many of the abused children are, of course, of school age at the time they are mistreated. Our public and secondary school teachers must be trained to recognize suspected cases of abuse or neglect. We should follow the example set by Project Protection, a co-operative Montgomery County, Md., public abuse prevention plan that is one of three such projects funded by the U.S. Office of Education under Title III of the Elementary and Secondary Education Act. The year following Project Protection's initiation, reports of suspected abuse or neglect more than doubled. Abusive parents or relatives have been referred for counselling and have been encouraged to join self-help parent groups.

8. Intervention is critical, not only because it can break the vicious cycle of children growing up to be tomorrow’s child-batterers, but because in some cases it may save a child’s life. In all cases, it will hopefully help a child to realize his educational potential.

This is the second instalment of a two-part series. Part one: Protecting the children, 50 years later.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he has been teaching education law for 42 years. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


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