Criminal law

The law of evidence in Nigeria has never denied the competence of a child to give evidence. The repealed Evidence Act had provisions for how the evidence of a child can be obtained, but did not define or provide a guide as to who is considered a child. As a result, the courts relied on other statutes for illumination as to who a child is. This paper examines the new Evidence Act as it relates to the evidence of a child, particularly the broadening of the scope of child evidence in Nigeria. This paper will conclude that there is marked improvement.     

Child neglect death of an infant by faulty nutrition]

A 3 month old child was treated in hospital for "toxikosis and prolonged gastroenteritis". The child required a special diet. The parents picked up the child in hospital and brought it home against the device of the doctors. 26 hours later the child had died of severe exsikkosis (loss of 17% of body weight within one day). Using immunological methods (Ouchterlony test) we were able to demonstrate the child was fed with contraindicated food although the doctors had pointed out that the child needs a special diet. The parents were sentenced at court in two instances for manslaughter.     

Incomplete Citizens: Changing Images of Post-Separation Children

The image of the child as the victim of separation or divorce is well-established in legal, socio-legal and popular discourse. However, the authors argue, alongside this traditional image of the child, there is a different image of the child emerging, that of the autonomous, responsible child. This is apparent in academic discourse, policy documents and legal pronouncements. This child is included in the project of 'remoralising' the family by building the 'good' post-separation family. The 'good' child of separation or divorce is responsible for safeguarding his or her own welfare and is expected to make those choices that are assumed to best protect his or her best interests. In order to ensure that the child makes the 'right' decisions, he or she, like the adults concerned, is the target of education, information and therapeutic intervention. There is a blending of paradigms in which the ideal child is both an autonomous social actor and a vulnerable object of concern.     

The impact of protective shields and videotape testimony on conviction rates in a simulated trial of child sexual abuse

In Experiment 1 mock jurors watched a videotape simulation of a sexual abuse trial that included a 10-year-old child witness testifying in one of three different modalities: (1) The child testified in court while directly confronting the defendant (open court condition). (2) The child testified in court with a protective shield placed between the child and the defendant (shield condition). (3) The child testified outside the courtroom and the child's testimony was presented to the jury and the defendant on a video monitor (video condition). The mock jurors judged the guilt of the defendant after watching the entire trial. The modality of the child's testimony had no impact on conviction rates. In Experiment 2 subjects watched the same trial that was used in Experiment 1. The trial was stopped immediately after the child testified (the child was the first witness to take the stand), and subjects judged the guilt of the defendant. The modality of the child's testimony had a significant impact on conviction rates. Subjects in the open court condition were more likely to convict the defendant than subjects in the shield and videotape conditions. These findings are relevant to Supreme Court decisions regarding the use of protective devices with child witnesses.     

Child abuse reporting trends: an unprecedented threat to confidentiality

Some recent interpretations of the child abuse laws are creating serious and unprecedented erosions of therapist/patient confidentiality. In contrast to the Tarasoff decisions and laws, the child abuse statutes introduced a new element of mandatory reporting which permits no discretionary alternatives and presents prospects of criminal penalties for failure to report. A recent development suggests a possible requirement for therapists to violate confidentiality for the sole purpose of punishing perpetrators. Overinterpretations of the laws by some child protective services have led to recommendations that long past child abuse must be reported, even when no current child is in danger. The California Attorney General's Office has issued a clarification stating that the child abuse statute refers to children and not to adults molested as children. A survey of forensic psychiatrists and psychologists shows that most perceived an ethical problem in reporting adults molested as children when no child is presently in danger, and the purpose of the report is solely for maximal legal self-protection. The survey indicates that fears induced by rigid and intimidating child abuse laws can influence therapists to act in ways most consider unethical. Recommendations are made for improving the current child abuse laws so that they accomplish their goals more effectively.     

Gatekeeping by Allegations: An Examination of Verified,Unfounded, and Fabricated Allegations of Child Maltreatment Within the Context of Resist and Refusal Dynamics

Allegations of child maltreatment and neglect, including child sexual abuse, in the context of child custody disputes pose particular challenges for child protection services, family law professionals and the courts to identify children at risk of harm, as well as children impacted and exposed to other risk factors. Accurately identifying child maltreatment requires assessing the background, the history and the context of the allegations in order to differentiate confirmed, unfounded, and fabricated allegations. The paper provides a review of the history and current understanding of allegations within the context of child custody disputes by considering the connections of fabricated allegations to the theory of alienation and the role of gatekeeping. The paper then examines the social science literature regarding allegations within child protection investigations (the prevalence, types of maltreatment, reporter of allegations, and case outcomes) and explores the factors that have contributed to the challenges faced by child protection services to investigate and make determinations regarding allegations within the context of child custody disputes. We argue for early assessment protocols for child protection services to screen child custody cases, to differentiate allegations of alienation from other types of harm, to enhance role clarity in these volatile situations, to refrain from “taking sides” and to work collaboratively with the family law community. Lastly, we offer legal implications to improve collaboration between child protection services and the family law field to better respond to these complex cases.     

IRRECONCILABLE DIFFERENCES

This article will examine several of the more difficult issues raised by the Freeman case, including the potential conflict between a parent's rights and a child's rights, the concern over legislative intervention in family autonomy, and the obvious struggle the courts are having in making consistent decisions in this area. The focus will be on Canadian child welfare legislation, with particular emphasis on the Nova Scotia legislation, as it relates to the refusal to consent to the medical treatment of a child. Similarly, the case law considered will also be primarily Canadian. The article will concentrate on situations in which the withholding of medical treatment would threaten the life of a child and will discuss the withholding of treatment as it relates to an unborn child, a mentally and/or physically challenged child, and a normal child.     

MEDIATION IN CHILD PROTECTION AND THE NOVA SCOTIA EXPERIENCE

In recent years, mediation has become a device used to settle disputes in the area of child protection. The first legislatively based child protection mediation program in Canada was implemented in the province of Nova Scotia in 1993. This program has been criticized for not safeguarding children from neglect and abuse, for redundancy with respect to settlements offered by child protection workers, for its nonuse of child protection workers as mediators, and for power imbalances between negotiating parties. It has also suffered from a low number of referrals to mediation. The Nova Scotia experience emphasizes the need to gain support not only from child protection agency leadership but also from frontline staff to create a stable and beneficial mediation program. Even in light of the complications with respect to child protection mediation in Nova Scotia, there is a growing interest and implementation of mediation programs throughout Canada.     

Separation and Reunification: Using Attachment Theory and Research to Inform Decisions Affecting the Placements of Children in Foster Care

Determinations regarding removal of children from home in maltreatment situations typically take into consideration the physical safety of the child. Less recognized and often underappreciated is the severe risk endured by the child as a result of separation from the caregiver, and the long‐term effects of the separation on the child. This article describes recent developments in attachment theory and research and their usefulness for placement decisions. We will explain how a child develops a secure attachment to a caregiver and review the deleterious consequences associated with maltreatment and separation. The case of a child in a foster/adoptive placement will be discussed in order to clarify common misinterpretations of attachment research and how attachment theory and research can inform permanency decisions that are in the best interest of the child.     

Contact,welfare and children in care: revisiting the significance of birth family relationships after finding significant harm

The focus of this paper is the issue of continuing birth family involvement in the child’s life once the child is living in care. Drawing on a psychosocial study and free association narrative interviews with care leavers it focuses on the harm to a young woman called Frances, caused by direct contact with her birth family and the cessation of such contact. The paper addresses the tension between these two types of harm, in particular the role of contact in safeguarding and promoting the welfare of children in care. It presents an argument for the child’s care plan to emphasise the need for ongoing review of the role and impact of the child’s close relationships and contact with their birth family once the child is in care. This includes ongoing consideration of the child’s changing relationship with the birth mother and siblings with a view to reconciliation in young adulthood.     

Child pornography possessors: Comparisons and contrasts with contact- and non-contact sex offenders

Abstract

The advent of the internet has facilitated a dramatic increase in the number of individuals accessing and possessing child pornography and a corresponding increase in referrals for assessment and treatment. Questions remain regarding whether child pornography possessors are more similar to or different from other types of sex offenders, and whether or not assessment and treatment protocols for contact and non-contact sex offenders are applied appropriately to child pornography offenders. The present study compared 50 child pornography offenders, 45 non-contact sex offenders and 101 contact child molesters. The results indicated that the three groups were more similar than different; however, child pornography offenders were distinguished by greater academic and vocational achievement, fewer childhood behaviour problems and by select relational variables. Recidivism rates were low for all groups.     

Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society

This article examines legal and social discourses surrounding the phenomenon of child pornography, considering the legal responses to child pornography (particularly when an individual is found to be in possession of such material), and the way in which such material, the child, and the possessor of child pornography are socially constructed.
The article raises the question of whether there has been a moral panic regarding child pornography and the possession of such material, but also considers whether there are real reasons to consider that the possession of child pornography should remain illegal. Research studies which aim to establish the existence of a causal link between possessing child pornography and the act of committing child sexual abuse are examined, as is the argument that criminalizing the possession of child pornography reduces the market for such material. Finally, there is an analysis of the possible impact of social constructions of the child as innocent.     

A Preliminary Evaluation of the Spanish Parent–Child Aggression Acceptability Movie Task in Spain

The current study presents a preliminary evaluation of a Spanish adaptation of an implicit analog procedure, the Parent–child Aggression Acceptability Movie task (Spanish Parent-CAAM). Based on Social Information Processing theory, Spanish Parent-CAAM scores were expected to relate to self-reported PCA attitudes, negative child attributions, and child abuse risk in Spanish students; 245 undergraduates in Spain completed the Spanish Parent-CAAM along with self-report measures of PCA attitudes, negative children attributions, inclination to punish misbehavior, and child abuse risk. Findings indicate Spanish Parent-CAAM scores were significantly related to explicit measures of PCA, attributions of intentional child misbehavior, propensity to punish such misbehavior, and increased child abuse potential. Results are considered within the cultural context of Spain’s corporal punishment ban and PCA attitudes.     

CHILD SUPPORT IN THE UNITED STATES

This article reports on the results of a telephone survey conducted with a random sample of households screened for eligibility to receive child support in the state of Colorado. Despite the recent enactment of ambitious child legislation at the state and federal levels, the accounts of 731 custodial parents reveal a massive level of unmet need, with child support problems being most extreme for those never married to the chilďs other parent. These mothers typically lack an order establishing a legal obligation to pay child support and have incomes that fall below the poverty level. Overall, women of Colorado with child support orders received only about half of the support they were due, and 73 per cent of all women due support reported that they had experienced problems in collecting support either currently or in the past. The average amount of back due child support owed to the 60 per cent of women in the sample who reported an arrearage was $12,000. Analysis revealed that payment behaviour tracked with the length of time since separation with payment patterns worsening over time and irregular visitation and/or the presence of problems around child access. Female obligors exhibited the same payment patterns as their male counterparts but were more apt to maintain visitation. The article documents the dramatic, negative economic consequences of irregular or missing child support payments for custodial parents, and discusses the additional legal and financial commitments needed to improve the situation. The efficacy of private child support transfers to achieve an adequate standard of living for all children is called into question.     

The Child's Attorney and the Alienated Child: Approaches to Resolving the Ethical Dilemma of Diminished Capacity

Increasingly lawyers for children follow a model of “client centered” (as opposed to “best interests”) representation in child custody disputes in which the child client defines the objectives of the representation. The client‐centered model, while appropriate in most cases to give voice to the child's preferences in a process that deeply impacts him or her, can create an ethical dilemma for the child's lawyer in cases where a child is truly alienated from the other parent by the actions of the alienating parent. Alienated children strongly and unreasonably express a preference for objectives of representation that might further damage the alienated parent's relationship with the child. The alienated child's objectives may be the result of a campaign of denigration and “brainwashing” by the alienating parent. This Note suggests that when a child is truly alienated from a parent, as diagnosed by a mental health expert, the child may have “diminished capacity” and therefore, the client‐directed model of representation is not adequate. This Note proposes that the Child's Attorney must determine whether the child is of diminished capacity under the Model Rules of Professional Conduct and, if so, must treat the client accordingly under Rule 1.14. Specifically, the attorney may, if all other remedial measures are inadequate, override the child's wishes and advocate a position that the child would take, but for the brainwashing of the child used to alienate him or her from a parent.     

Personality disorders in a sample of paraphilic and nonparaphilic child molesters: a comparative study

This article renders the results of research that investigated personality disorders in a sample of paraphilic and nonparaphilic child molesters. The sample contained 36 paraphilic child molesters and a matched comparison group of 34 nonparaphilic child molesters. The analyses of the research results show that four personality disorders discriminate between both groups. Only the obsessive-compulsive personality disorder contributes significantly to the explanation of paraphilic child molestation. This result also contributes to the development and differentiation of the treatment of paraphilia-related disorders. For several child molesters, psychological approaches to the treatment of sexual offending (e.g., cognitive-behavioral treatment, psychotherapy in general) are limited and cannot be expected to immediately reduce risk. Interest has been expressed in medical approaches to reduce recidivism, in combination with psychotherapy.     

Characteristic Features of Severe Child Physical Abuse—A Multi-informant Approach

Minor child physical abuse has decreased in Sweden since 1979, when a law banning corporal punishment of children was passed, but more serious forms have not decreased. The aim of this study was to examine risk and background factors in cases of severe child abuse reported to the police. Files from different agencies (e.g., Social services, Adult and Child psychiatry and Pediatric clinic) for 20 children and 34 caretakers were studied. An accumulation of risk factors was found. It is concluded that when the following four factors are present, there is a risk for severe child abuse: 1) a person with a tendency to use violence in conflict situations; 2) a strong level of stress on the perpetrator and the family; 3) an insufficient social network that does not manage to protect the child; 4) a child that does not manage to protect him or herself. Thus, multiple sources of information must be used when investigating child abuse.     

Why wrongful birth actions are right

A wrongful birth action is a claim in negligence brought by parents of a child against a doctor who has "wrongfully" caused their child to be born. These claims can be divided into two categories: those where a doctor performs a failed sterilisation procedure that leads to a healthy child being born; and those where a doctor fails to provide sufficient information to allow parents to choose to abort a handicapped child. The recent decision of the High Court of Australia in Cattanach v Melchior (2003) 77 ALJR 1312 falls into the former category. The decision to allow the parents to receive damages for the costs of raising and maintaining their child has generated much public debate. Despite the endorsement of this "wrongful birth" action, there are indications that the legislature will overturn the decision. This article examines whether there is a sound doctrinal basis for recognising wrongful birth actions.     

Judicial Oversight of Parental Visitation in Family Reunification Cases

This article explores the issue of visitation between a child and parents in the context of child protection proceedings, addressing the following areas: 1) the importance of visitation in the context of family reunification; 2) the results of an informal study of visitation practices in several jurisdictions; 3) the law relating to visitation in child protection proceedings; 4) some best practices that have been identified by commentators; 5) the role of the judge regarding visitation issues; and 6) some recommendations for judges and court systems regarding visitation. The article concludes that visitation between a child and her parents often occurs too infrequently; as a result, the relationship between the child and parents can be damaged, the child can suffer further trauma, and the chances for successful family reunification may be reduced. Finally, judges and social service agencies can and must improve both the quality and quantity of parent‐child visitation.     

Associated Adults: Prospective Person Memory for Family Abducted Children

In family abductions, authorities sometimes release pictures of both missing children and associated adults. The effectiveness of this approach was tested in a prospective person memory experiment. Participants studied mock missing child posters including a picture of a child, a picture of a child alongside a picture of the correct adult, or a picture of a child alongside a picture of the incorrect adult. Participants then saw pictures of child/adult pairs with instructions to make a response to ‘alert authorities’ if the target individuals were seen. Including the picture of the correct adult on the poster, significantly improved recognition relative to the other two conditions. There was no significant effect of including the picture of the incorrect associated adult.