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Possible reform to the law concerning the Causing or Allowing the Death of a Child

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Introduction

Submissions on the possible reform to the law concerning the Causing or Allowing the Death of a Child (the "new offence") Comments on the potential injustice and unsesirable social impact caused by the improper scope of potential defendants of the new offence Introduction 1. In response to the "Discussion Paper"1 dated September 2006, the writer has considered the relevant law reform in England and Wales detailed therein and the possible impact of introducing the same "new offence" of Causing or Allowing the Death of a Child or Vulnerable Adult2 as in England. Augmented duty of care 2. The new offence can be triggered where an "unlawful act"3 had resulted in the death4 of a child or a vulnerable adult in a domestic environment. 3. This new offence mandates a duty to protect or prevent harm on others that is wider than the charges of statutory protection of ill-treating or neglecting the child5 and common law protection under, inter alia, Pittwood6, Gibbons and Proctor7 and Miller8, because it doesn't require, the defendant to have, respectively, "custody, charge or care" of the victim, pre-existing contractual duty, undertaking (express or implied) to care for the victim or created a danger for the victim. ...read more.

Middle

The lack of statutory defence would widen the door of injustice. This is especially so where the charge is being laid against an abused young parent who is under the age of 16. Social Implications - distorting present interpersonal social relationship 25. The new offence has a significant potential of distorting he present interpersonal social relationship in the following ways. 26. On one hand, people will be discouraged from bearing, rising or offering help take care of children or the vulnerable in order to avoid the risk of being caught under such a wide and uncertain offence. 27. This difficulty is particularly relevant to Hong Kong where there are an increasing number of single parents who has relied on relatives or child care workers to look after the children so that he/she can return to work.17 28. On the other hand, for obvious reason, people in the society will be encouraged to stay away from, instead of helping, ones showing a certain tendency to violence, where such tendency may originally be ratified through mutual support between people, relatives, couples and friends. Conclusions 29. The writer understands that the new offence is made with a view to deter members of the society from their abusive acts, and impose an legal duty on persons close to children or the vulnerable to engage into positive steps to protect the children and the vulnerable. ...read more.

Conclusion

14 In order to ascertain when the risk is one of which the defendant ought to have been aware under s5(1)(d)(i) of DVCVA 15 Sally Broadbridge, The Domestic Violence, Crime and Victims Bill: [HL] Criminal procedure and victims (9 June 2004), Pp 56-57 16 The Women's Commission, The Women's Commission report : women's safety in Hong Kong : eliminating domestic violence (Hong Kong : Women's Commission, [2006] ) P 31 17 Law Reform Commission of Hong Kong, Child custody and access : report Law Reform Commission of Hong Kong (Hong Kong : The Commission, 2005) P 12 18 Namely the difficulty in ascribing the responsibility of the death of children to their members of the household who caused the death of the child. Discussion Paper pp 1-2 19 R v Macaskill No. SCCRM-00-257 [2003] SASC 61 was a good example where the South Australia court faced the difficulty in ascribing the responsibility of the death of children to either of the parent who caused the death of the child due to the lack of evidence. 20 PRC became the 105th member nation states of the Convention on the Rights of the Child as of 29th August, 1990 21 Art2: Minors as used in this Law refer to citizens under the age of eighteen. 22 The Chinese Communist Party (the "Party") ?? ?? ?? ?? Criminal Law Research Paper Topic 1 ...read more.

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