Children’s rights, children wronged: exploring legal constructions of child neglect

The paper will be an analysis of the way in which criminal law, child protection and the United Nations Convention on the Rights of the Child (UNCRC) construct child neglect and the implications of such constructions. This paper will focus on the role of blame within the criminal law definition, and trace how this subjective element has been used to assist international efforts to define child neglect (e.g. the World Health Organisation’s 1999 definition). It will then look at the way in which English child protection legislation, while technically removing the caregiver fault from the definition, limits state protection of children at risk of significant harm or identified as ‘in need’. This places the onus on caregivers to meet children’s needs in the primary instance rather than the State, which only steps in when caregiver failure is discovered. Under this legislation the duty of the parents towards the child is the primary duty, while the duty of the State is secondary. Under the UN Convention however, the relationship between the State and the child is foregrounded, and the child is constructed as a citizen with enforceable rights against the State. It is argued that this legislation implies a very different relationship between the child and the State and the construction of child neglect is therefore far wider than previously. This legislation has yet to be fully exploited (the United Kingdom (UK) views it as aspirational rather than enforceable), but could in theory be used to challenge State action or inaction associated with bad outcomes for children.