Law Society urges greater clarity in child protection legislation

The New Zealand Law Society has recommended that the proposed new offence of failure to protect a child or vulnerable adult be defined more precisely.

The proposed new offence in the Crimes Amendment Bill (No 2) places those who come in frequent contact with children or vulnerable adults under an obligation to take reasonable steps to prevent harm to that child or vulnerable adult, where the person knows of a risk of death, grievous bodily harm or sexual assault.

In the Law Society’s submission to the Social Services Select Committee, spokesperson Edward Scorgie said it was important to define the scope of the offence as precisely as possible, to minimise the likelihood of over-reporting. There was an inevitable potential for over-reporting, as those who came into contact with children or vulnerable adults sought to protect themselves from any suggestion of liability. A precise definition would minimise this negative impact.

As it is currently drafted, the proposed offence depends on knowledge of a “risk” of harm to the child or vulnerable adult.

“The section is unclear as to how serious this risk must be to trigger liability,” Mr Scorgie said. It would be preferable to define the level of risk more precisely, for example as ‘material’, ‘appreciable’ or ‘substantial’.

Mr Scorgie also said it was not clear if harm must have resulted to the child or vulnerable adult as a result of the defendant’s omission before the offence was complete.

“As it stands, the offence is complete upon failure to take reasonable steps, regardless of whether harm results.”

Finally, the Law Society also considered that there needed to be more clarity in defining a “vulnerable adult” in the Bill, as it included people who were unable to withdraw themselves from the care or charge of another by reason of “detention”. This had the potential to make the offence applicable to those responsible for people held in Police or Corrections Service custody.

It was not clear whether the Bill intended to deem a prison officer or police officer criminally liable if they failed to take reasonable steps in the prevention of harm to a prisoner.

“If police or corrections officers are intended to be within the scope of the offence then further consideration should be given to the appropriate level of knowledge, and degree of risk of harm, necessary to complete the offence.”