Is Poverty is a Form of Child Abuse - Research Paper Example

Is Poverty is a Form of Child Abuse? By Introduction Although child abuse and neglect have been linked to poverty, poverty itself does not cause child abuse. Rather, poverty renders children more susceptible to child abuse and neglect. In this regard, it has been found that children living in poverty are more vulnerable to sexual exploitation, labour victimization, are more likely to drop out of school, become juvenile delinquents, and to experience significant neglect in terms of education, health and safety.1 Bowers argues that child abuse and neglect is more prevalent among families living in poverty because parents lack the will and resources to properly supervise and guide children.2 Nevertheless, Besharov and Laumann argue that although child mistreatment is linked to poverty, it is not a form of child abuse. Instead, child abuse should be treated as a symptom of poverty and these cases should be dealt with outside of the criminal justice system.3 This research paper examines the link between child abuse and poverty with a view to determining whether or not it is fair to excuse child abuse on the grounds of poverty or whether or not poverty should be properly viewed as a form of child abuse. In this regard, the legal definition of child abuse and the conditions to which children in poverty are exposed to are analysed. It will be argued that poverty is not a form of child abuse and should not be used as a defence against or an excuse for child abuse. It will be argued further, that while poverty creates conditions that expose children to harm, poverty alone, is not a form of child abuse. It is the mismanagement of poverty by the state and parents or carers that expose children to child abuse. Therefore a combination of poverty and other factors can expose children to conditions that can include conditions that are tantamount to and/or are actually child abuse. This paper is divided into two main parts. The first part of this paper analyses the legal definition of child abuse as a means of providing a framework for determining whether or not poverty can be characterised as a form of child abuse. The second part of this paper discusses whether or not the link between poverty and child abuse is sufficient to support the contention that poverty is a form of child abuse. Legal Definition of Child Abuse Child abuse is best understood under both civil and criminal law as serious/significant harm or the risk of serious/significant harm to a child.4 Civil liability for child abuse is covered by the Children Act 1989 as amended. The criminal aspect of child abuse is covered by the Children and Young Persons Act 1933. As will be demonstrated in this part of the research paper, civil liability is usually applied to cases where the child is at risk of serious/significant harm or the abuse is emotional in nature or the actual physical harm is not serious or significant. Criminal liability usually applies to sexual and physical abuse.5 The European Convention on Human Rights (ECHR) imposes a duty on Member states to protect all citizens within their territories, especially children and other dependent individuals from cruel treatment that rises to the level of torture.6 Thus the Convention duty requires that states protect individuals especially children from physical harm that is serious enough to be captured by Article 3 which forbids torture.7 How serious the harm is will depend on the age of the victim.8 Therefore, what might be considered insignificant harm to an adult, may be considered serious harm to a child. The duty to protect children is not limited to actual harm sustained, but also extends to instances where the child is in a position where harm is a likely outcome.9 The laws of the UK reflect the standards articulated above. For example under Section 47 of the Children Act 1989 (as amended by the Children Act 2004) local authorities are required to carry out investigations of incidents where it is ‘reasonable’ to ‘suspect’ that any child or children within their districts is being seriously harmed or is ‘likely’ to be seriously harmed.10 Harm is defined by Section 31(9) of the Children Act as amended by the Adoption and Children Act 2002. Harm in this regard, is the mistreatment or disruption of ‘health or development’ which can occur when a child is exposed to the mistreatment or disruption of others’ health and development.11 Development can be ‘physical, intellectual, emotional, social or behavioural development’ and health can be either physical or mental and mistreatment refers to ‘sexual abuse’ and non-physical forms of ill-treatment.12 Child abuse can therefore be physical or emotional. However where the abuse is physical in nature, the abuse moves beyond merely protecting the child by virtue of supervision, protection or care orders under the Children Act 1989. Physical abuse also involves criminal investigations and prosecutions.13 Where a child is subjected to physical abuse for a protracted period, the abuse can be serious enough to invoke Article 3 of the ECHR and thus the state can incur liability for failing to detect and prevent the prolonged physical abuse.14 There is a difference between a child who is susceptible to harm or a child who is suffering harm and a child in need. A child in need is a child who is likely to underachieve or has unsatisfactory health or development or both health and development are likely to be impaired without assistance from welfare services.15While some children in need may also be children who are likely to incur harm in that they also suffer physical or mental abuse, some children in need may not be suffering or facing the possibility of suffering harm. For example, a child in need can be a disabled child or a juvenile or a child with parents who are imprisoned.16 However, the most common characteristic of children in need is neglect and abuse. What typically occurs is that parent lacks the will or ability to recognize and respond to the needs of the child which subjects the child to grave harm or the risk of grave harm.17 In such cases the parent or primary carer’s lack of care or abject neglect is often insufficient to substantiate criminal charges under the Children and Young Persons Act 1933. Under the 1933 Act, child abuse is a crime which requires that any person aged 16 or older is guilty of a crime if he or she ‘causes or procures’ child neglect or child abuse.18 With respect to poverty, criminal liability for child abuse would not be sustainable since the carer must both commit the act and have the intention to commit the act that causes neglect or harm to the child. Thus, criminal liability for child neglect and abuse usually falls under the realm of physical abuse, sexual abuse and sexual or commercial exploitation of the child.19 The incidents of physical abuse have occurred in various areas and are therefore not strictly a symptom of poverty although poverty might increase the child’s chance of being exposed to physical or sexual abuse.20 Poverty however may be a factor and a form of abuse or neglect in the realm of civil liability under the Children Act 1989 where the likelihood of serious/significant harm can be established on the basis of a balanced likelihoods/probabilities. However, the likelihood of serious/significant harm may not be established on the basis of suspicion.21 In other words, there must be facts and it is not enough to show that a different child had been previously subjected to serious/significant harm.22Thus the mere fact that a household suffers from poverty will not in and of itself be enough to discharge the burden of proof with respect to the risk of harm/child abuse. Nor would the fact that a child had suffered significant harm on account of poverty serve as sufficient proof that other children in the household are at risk of significant harm. However, if there are facts and circumstances from which it can be inferred that serious/significant harm is likely to occur, civil liability for child abuse can be substantiated.23 Thus it can be argued that the conditions associated with poverty might suffice to support a civil case of child abuse on the basis that a child exposed to those conditions are at risk of significant harm. The link between poverty and child abuse is considered in more detail below. The Link between Poverty and Child Abuse The link between child abuse and poverty is well documented in the literature. For example, Cleaver, Unel and Aldgate, report that many of the children lacking care is a result of ‘poverty, debt and poor housing.’24 Belle argues that the link between poverty and mental illness and maladies, especially among women has been backed by scientific evidence.25Thus it is reasonable to assume that children who are under the care of women living in poverty are at a greater risk of abuse than children under the care of women in households with a satisfactory income.26 A study conducted by Bryant-Davis Ullman, Tsong, Tillman and Smith suggest however, that poverty alone is not responsible for mental health problems in women. The study involved 413 African American women who had been sexually abused. The effects of previous sexual abuse combined with poverty were positively linked to post traumatic stress disorder, depression and substance abuse.27 It can therefore be argued that a pre-existing condition, namely, sexual abuse brought about mental health problems which were likely exacerbated by poverty or it was likely the substance abuse resulting from a trauma that brought about poverty. A child exposed to these conditions would most likely be a candidate for state intervention under the Children Act 1989 on the grounds that the child is likely to suffer serious/significant harm. However it can be argued that poverty did not expose the child to risk of serious/significant harm. Rather, the mother’s substance abuse and/or post-traumatic stress disorder linked to an incident of previous sexual assault more likely than not, exposed the child to the risk of significant harm. A study conducted by Grant, Jack, Fitzpatrick and Ernst among over 600 new mothers revealed a link between poverty and other factors that can expose newly born children to serious/significant risk of harm. The study found that these women were living in poverty and as a result had been sexually exploited and victimized. This, together with the stress incurred through living in poverty, gave way to depression which gave way to substance abuse during and after pregnancy. Thus infants were exposed to physical harm prior to and after birth.28 Poverty is only indirectly linked to the risky behaviour of these new mothers. The fact that these women were able to support illicit substance habits indicates that these women could have chosen instead to alleviate poverty. Therefore, poverty appears to be used as an excuse to engage in behaviour that puts children at risk of significant harm. It is therefore not poverty that causes women to be maladaptive at the risk of harming their children, but rather, it is the choices that they make when confronted with poverty. According to Clark, Clark, Adamec, poverty is more properly described as a form of ‘societal abuse’.29 Clark, et al., go on to state that children living in poverty and lacking fundamental provisions ‘suffer’ in same way as those who are ‘intentionally’ denied fundamental provisions.30Clark, et al. therefore suggest that poverty itself is not an excuse for permitting children to live without health development. This assertion is implicit in their contention that only when children living in poverty are denied fundamental provisions are they at risk of harm. Indeed, Article 3 of the ECHR imposes a duty on states to take action to prevent children living in conditions that can amount to cruelty. Moreover, the UN Convention on the Rights of the Child (CRC) imposes a duty on member states to implement the necessary provisions and institutions in law, administration, socially and through educational services for protecting children for all sorts of abuse or neglect or mistreatment and exploitation.31 Moreover, the CRC imposes a duty on member states to acknowledge and enforce the child’s right to the enjoyment of satisfactory health services.32In acknowledging and enforcing these rights, member states have duty to take measures to safeguard against the deprivation of health services to children.33 This duty includes the duty to ensure that pregnant women and new mothers have access to health care services as well.34The problem with these duties however, is that the CRC does not impose a duty on member states to make these services available free of charge. It is therefore not a guaranteed right insofar as access is available. Access can be made available at a cost to end-users including women and children. However, Article 26 of the CRC urges states to accommodate the right of children to ‘benefit from social security, including social insurance’ while ‘taking into account the resources and circumstances of the child and persons having responsibility for the maintenance of the child’.35More importantly, Article 27 of the CRC provides that Member states take notice of the child’s right to a satisfactory living standard for maintaining the child’s full development.36 However, parents or caregivers are required to assume ‘the primary responsibility’ for securing these living conditions and standards pursuant to their financial ability to do so.37Thus, in delivery these services to children in need, state parties are required to recover the cost from the parent or caregiver.38 However, this is hardly possible where the family is living in poverty. The CRC also requires that education for children is compulsory.39 Essentially, the CRC takes the position that children are entitled to the basic elements necessary for satisfactory health, growth, development and education and poverty should not be an obstacle to those basic elements. Moreover, the CRC also takes the position that cruelty and abuse should be prevented and treated and therefore poverty is not responsible for these risks as the state should assume responsibility for protecting the welfare of children. As Djeddah, Facchin, Ranzato and Romer argue, child abuse is a problem of state intervention.40 Regardless, it has been argued that poverty creates stressors within the home. The main concern is the lack of money for food and clothes. This causes stress which in addition to undernourishment, leads to mental, physical and sexual abuse.41 However, a study Drake and Pandey using the 1990 Census data and Child Protective Service data determined a correlation between poverty and neglect, physical and sexual abuse. The study found however that ‘of the three types of child maltreatment, child neglect is most powerfully’ linked to poverty.42 Clark, et al. argue that although poverty does put children at risk of child abuse, it is not true that poverty itself is a form of child abuse. This is because a minimal child population exposed to poverty comes to the attention of child welfare services. Usually, parents and carers of children living in poverty are able to cope with poverty and care for their children.43As previously argued, it is not poverty itself that is a form of child abuse. Rather it is the decisions that parents or carers make in response to poverty that leads to conditions that are comparable to child abuse. Clark, et al., argue that poverty does not match the statutory requirements or elements of child abuse. Children living in poverty are more appropriately perceived as disadvantaged or children in need within the Children Act 1989 and the Framework for the Assessment of Children in Need and their Families. This is because intervention in terms of poverty is intended to ensure that children in need as a result of poverty are accorded opportunities for health, growth, development and education. This is different from the statutory duty to intervene when a child is physically or mentally abused. It is believed that only when children with needs as a result of living in poverty will not be subjected to a crisis unless and until the state intervenes to lend assistance to the child and the child’s family.44 In other words, it is the responsibility of the state to promote and protect the welfare of children. This is a statutory duty as contained in Section 17 of the Children Act 1989 and Article 3 of the CRC.45 In the promoting the welfare of the child, states assume responsibility for alleviating the effects of poverty by ensuring that children and families living in poverty have assistance with health, education and development so that the stressors associated with poverty are eliminated.46When the state fails to intervene and the effects of poverty place the child at risk, it is not poverty that causes child abuse, but the state’s failure to intervene appropriately. The ill-effects of poverty are not consistently documented in the literature. As a result it is not altogether clear that poverty itself is the cause of any type of child abuse where deprivation is linked directly to poverty. For instance a study conducted on a group of 5,551 referrals and 1,450 registered cases of child abuse and neglect in Scotland cast doubts on the link between poverty and child abuse. The study results found that the strongest correlation was between male unemployment and physical abuse. This link was not well established where unemployed females were observed. Moreover, sexual abuse and neglect demonstrated a weak link with poverty. For the most part, ‘male unemployment rates alone accounted for two-thirds of’ all types of abuse and neglect.47 Another study conducted on a cohort of 644 families in New York also indicate that poverty is not strictly responsible for child abuse. The study analysed data indicating child abuse and identified risk factor for child abuse. The risk factors included demographics, relationships within the family, the behaviour of parents and parental and child characteristics. The study results revealed that any one frisk actor or combination of risk factors were linked to child abuse.48 Wilson, Daly and Weghorst examined data from the American Humane Association and concluded that poverty and single male parent homes together with two parent homes in which one parent was a step parent demonstrated significant levels of child abuse while single mother homes showed minimal child abuse. Wilson, et al., did not feel that it was possible to state that poverty was the cause of child abuse in single male parent homes and homes with a step parent. It was more likely that some other factors such as issues experienced as a child contributed to the incidents of child abuse. Moreover, based on the data analysed, Wilson, et al., concluded that neglect is more likely associated with poverty as opposed to abuse.49 A more recent study found that poverty does have a negative impact on the child’s ability to function.50 However, the effects cannot be properly categorised within the legal definition of child abuse, especially since the effects are indirectly linked to poverty. The study was conducted by Wadsworth, Raviv, Reinhard, Wolff, Santiago and Einhorn. The study involved 164 children between the ages of 6 and 18. The results of the study revealed that these children living in poverty incurred ‘poverty-related stress.’51 The poverty-related stress included ‘economic strain, family conflict, violence/trauma, and discrimination’.52These factors were linked to wayward behaviour such as early pregnancies, problems with the law, dropping out of school, physical health problems and poor academic performance. However, the functioning of African American children was found to have a lower correlation with poverty than white and Hispanic children.53 These behaviours can result from any number of problems including divorce, peer pressure, bullying and so on. Neither of these causal factors can be categorised as child abuse. Therefore, poverty cannot be categorised as a form of child abuse. For the most part it is acknowledged that poverty is linked to stress and despair, particularly from the perspective of the parent. These stressors prevent some parents from delivering adequate care, guidance and supervision of their children. In order to cope with the stress arising out of poverty, some parents turn to alcohol and/or drugs. This only exacerbates the problem and leads to child abuse and/or neglect.54 The incidents of child abuse and neglect were more prevalent among single mothers who also had histories of arrests.55 The problem with this study and previous studies reported in this research paper is that the responses to the stress related to poverty are immature and irresponsible. These parents demonstrate an inability to cope with poverty or to overcome poverty, but somehow managed to support substance abuse habits. Just as these parents are able to find the means to support a drug or alcohol habit, they can finds the means to support their children and to reduce stress. Moreover, since these parents turn to alcohol and/or drugs it is quite possible that the child abuse and neglect occurs as a result of drugs and/or alcohol as opposed to poverty per se. In fact Gil argues that child abuse is a complex maladaptive phenomenon. It is a result of ‘inflicted gaps in children’s circumstances that prevent actualization of inherent potential’.56 In other words, a combination of factors that interact with one another contribute toward child abuse. In this regard, poverty might or might not be one of those factors, just as a recent job loss or a divorce may be one of the factors that contribute toward child abuse. However, while a recent job loss alone or divorce alone might cause child abuse, poverty on its own, does not cause child abuse nor is it a form of child abuse just as divorce is not a form of child abuse. Similarly, a recent job loss is not a form of child abuse.57 Corby also points out that while there are studies demonstrating that children who live in poverty are more susceptible to child abuse, these results may be misleading. The reality is, families living in poverty are more likely to seek social and welfare assistance. As a result, these families become more open and therefore fall under the close scrutiny of the authorities. Thus incidents of child abuse are more likely to be detected in families living in poverty. This does not mean that families with higher levels of income are not exposing their children to child abuse and neglect. It only means that child abuse and neglect in families with higher income levels are not as easily discovered.58 As demonstrated in this research, there is a link between poverty and child abuse. However, the link is not clearly established. In other words, some studies report that poverty causes child abuse and some studies reject this claim. Whether or not poverty causes child abuse does not answer the question of whether or not poverty is a form of child abuse. When the stressors of poverty are identified in the studies reported in this research are examined, it is immediately clear that those stressors do not satisfy the statutory definition of child abuse. Poverty does not factually expose children to significant harm because the state is under a duty to provide children and their families with access to health, education and development assistance. The fact that parents or primary carers living in poverty have problems coping with their conditions and do so in destructive ways does not render poverty per se, a form of child abuse. It is the parents or primary carers’ choice to abuse children under the care. Conclusion Child abuse is defined by the Children Act 1989 as exposing a child to significant harm or the risk of significant harm. There is no doubt that poverty can expose a child to significant harm or the risk of significant harm if a state fails to meet its obligations to provide welfare services to such a child and his or her family. Poverty may also expose a child to significant harm or the risk of significant harm if a parent or carer mismanages the stress related to poverty. However, it is not poverty per se that exposes the child to significant harm or the risk of significant harm. Rather it is the coping mechanisms of parents or carers that expose children to significant harm or the risk of significant harm. Thus poverty per se, does not cause children significant harm or put children at risk of significant harm. A number of factors combine with poverty to cause children significant harm or to put them at risk. Poverty renders children disadvantaged and in need of public welfare assistance. If assistance is denied, children can be exposed to significant harm. Therefore poverty is not a form of child abuse. The mismanagement of poverty by the state and/or parents or carers is a form of child abuse. Bibliography Textbooks Clark, Robin, E.; Clark, Judith Freeman, and Adamec, Christine, A. The Encyclopedia of Child Abuse. (New York, NY: Infobase Publishing, 2007). https://books.google.com/books?id=Dl4Qm54Km7YC&pg=PR5&lpg=PR5&dq=The+Encyclopedia+of+Child+Abuse&source=bl&ots=nV_LTEtuzi&sig=UtiJUGq4Jns9x_DgsKquqiPoCTs&hl=en&sa=X&ei=RiP1VM6XGMmxggTNsoF4&ved=0CEMQ6AEwBQ#v=onepage&q&f=false Cleaver, Hedy; Unell, Ira and Aldgate, Jane. Children’s Needs – Parenting Capacity. (Norwich: TSO, 2011). https://books.google.com/books?id=1A7DNDEn90UC&printsec=frontcover&dq=Children%E2%80%99s+Needs+%E2%80%93+Parenting+Capacity&hl=en&sa=X&ei=giP1VLGiLMG_ggTTrYPwBw&ved=0CB4Q6AEwAA#v=onepage&q=Children%E2%80%99s%20Needs%20%E2%80%93%20Parenting%20Capacity&f=false Corby, Brian. Child Abuse. (Berkshire, England: Open University Press, 2006). House of Commons: Education Committee. Children First: The Child Protection System in England, Fourth Report of Session 2012-2013, Vol. 11. (London, UK: The Stationery Office, 2013). https://books.google.com/books?id=wRlLu3SY7ycC&printsec=frontcover&dq=Children+First:+The+Child+Protection+System+in+England&hl=en&sa=X&ei=RiT1VJHzF4ygNuOqgcgK&ved=0CB0Q6AEwAA#v=onepage&q=Children%20First%3A%20The%20Child%20Protection%20System%20in%20England&f=false Laird, S.E. Practical Social Work Law: Analysing Court Cases and Inquiries, (Oxon, UK: Routledge, 2010). https://books.google.com/books?id=v4x9AwAAQBAJ&printsec=frontcover&dq=Practical+Social+Work+Law:+Analysing+Court+Cases+and+Inquiries&hl=en&sa=X&ei=giT1VKHeDsXBggT4z4KIBg&ved=0CB4Q6AEwAA#v=onepage&q=Practical%20Social%20Work%20Law%3A%20Analysing%20Court%20Cases%20and%20Inquiries&f=false Journal Articles Belle, Deborah. ‘Poverty and Women’s Mental Health.’ (March 1990) 45(3) American Psychologist, 385-389. http://psycnet.apa.org/index.cfm?fa=buy.optionToBuy&id=1990-17139-001 Besharov, Douglas, J. and Laumann, Lisa, A. ‘Don’t Call it Child Abuse if it’s Really Poverty,’ (1997) 3 Journal of Children and Poverty, 5-36. http://www.tandfonline.com/doi/abs/10.1080/10796129708412203#preview Bower, Carl. ‘The Relationship Between Child Abuse and Poverty.’ (2003) 56 Gendering Childhood, 84-87. http://www.tandfonline.com/doi/abs/10.1080/10130950.2003.9676025?journalCode=ragn20#preview Brown, Joceyln; Cohenm Patricia; Johnson, Jeffrey, G. and Salzinger, Suzanne. ‘A Longitudinal Analysis of Risk Factors for Child Maltreatment: Findings of a 17-Year Prospective Study of Officially Recorded and Self-Reported Child Abuse and Neglect.’ (November 1998)22(1) Child Abuse and Neglect, 1065-1078. http://www.sciencedirect.com/science/article/pii/S0145213498000878 Bryant-Davis, T.; Ullman, S.E.; Tsong, Y.; Tillman, S. and Smith, K. ‘Struggling to Survive: Sexual Assault, Poverty, and Mental Health Outcomes of African American Women.’ (January 2010) 80(1) American Journal of Orthopsychiatry, 61-70. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3870142/ Cobley, Cathy. ‘Working Together?: Admissions of Abuse in Child Protection Proceedings and Criminal Prosecution.’ (2004) 16(2) Child and Family Law Quarterly, 175-187. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2029889 Djeddah, Carol; Facchin, Paola; Ranzato, Cristina and Romer, Claude. ‘Child Abuse: Current Problems and Key Public Health Challenges.’ (September 2000) 51(6) Social Science and Medicine, 905-915. http://www.ncbi.nlm.nih.gov/pubmed/10972434 Drake, Brett and Pandey, Shanta. ‘Understanding the Relationship Between Neighborhood Poverty and Specific Types of Child Maltreatment.’ (November 1996) 20(11) Child Abuse and Neglect, 1003-1018. https://www.ncjrs.gov/App/publications/abstract.aspx?ID=165019 Gil, D.G. ‘Unraveling Child Abuse.’ (April 1975) 45(3) American Journal of Orthopsychiatry, 346-356. http://www.ncbi.nlm.nih.gov/pubmed/1146967 Gilbert, R.; Widom, C.S.; Browne, K. et al., ‘Burden and Consequences of Child Maltreatment in High-Income Countries,’ (2009) 373 The Lancet, 68-77. http://www.brown.uk.com/childabuse/gilbert.pdf Gillham, Bill; Tanner, Gary; Cheyne, Bill; Freeman, Isobel; Rooney, Martin and Lambie, Allan. ‘Unemployment Rates, Single Parent Density, and Indices of Child Poverty: Their Relationship to Different Categories of Child Abuse and Neglect.’ (February 1998) 22(2) Child Abuse and Neglect, 79-90. http://www.ncbi.nlm.nih.gov/pubmed/9504211 Grant, Therese, M.; Jack, Dana, C.; Fitzpatrick, Annette, L. and Ernst, Cara, C. ‘Carrying the Burdens of Poverty, Parenting, and Addiction: Depression Symptoms and Self-Silencing Among Ethnically Diverse Women.’ (2 October 2009) Community Mental Health Journal, 1-9. http://www.wwu.edu/Fairhaven/about/faculty/Jack/Carrying_the_Burdens_of_Poverty.pdf Olds. D.L.; Eckenrode, J.; Henderson, C.R. et al., ‘Long-Term Effects of Home Visitation on Maternal Life Course and Child Abuse and Neglect: Fifteen-Year Follow-up of a Randomized Trial.’ (1997) 278(8) JAMA 637-643. http://www.columbia.edu/cu/psychology/courses/3615/Readings/JAMA_1997_Olds.pdf Wadsworth, M.E.; Raviv, T.; Reinhard, T.C.; Wolff, B.; Santiago, C.D. and Einhorn, L. ‘An Indirect Effects Model of the Association Between Poverty and Child Functioning: The Role of Children’s Poverty-Related Stress,’ (2008) 13(2-3) Journal of Loss and Trauma: International Perspectives on Stress and Coping, 156-185. http://www.tandfonline.com/doi/abs/10.1080/15325020701742185#.VPW6oeFz7t8 Wilson, Margo I.; Daly, Martin and Weghorst, Suzanne, J. ‘Household Composition and the Risk of Child Abuse and Neglect,’ (July 1980) 12(3) Journal of Biosocial Science, 333-340. http://www.researchgate.net/publication/15789555_Household_composition_and_the_risk_of_child_abuse_and_neglect Table of Cases A v The United Kingdom, ECtHR No. 95599/94 [23 September 1998]. http://www.endcorporalpunishment.org/pages/hrlaw/judgment-avuk.html E and Others v The United Kingdom, ECtHR No. 33218/96 [26 November 2002]. https://courses.edx.org/c4x/LouvainX/Louv2.01x/asset/_Materials__Duty_to_Protect_and_conflicting_rights_-_E_and_Others__Final_.pdf Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35. http://www.bailii.org/uk/cases/UKHL/2008/35.html Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Z and Others v The United Kingdom, ECtHR No. 29392/95 [10 May 2001]. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59455#{%22itemid%22:[%22001-59455%22]} Table of Statutes Children Act 1989. Children and Young Persons Act 1933. European Convention on Human Rights, 1953. UN Convention on the Rights of the Child 1989. Miscellaneous Publications Council of Europe/European Court of Human Rights. ‘Research Report: Child Sexual Abuse and Child Pornography in the Court’s Case-Law.’ (June 2011) Research Division of the European Court of Human Rights, 1-13. http://www.echr.coe.int/Documents/Research_report_child_abuse_ENG.pdf Department of Health. Framework for the Assessment of Children in Need and their Families. 2000, 1-124. http://webarchive.nationalarchives.gov.uk/20130401151715/https:/www.education.gov.uk/publications/eOrderingDownload/Framework%20for%20the%20assessment%20of%20children%20in%20need%20and%20their%20families.pdf Miller, Kenneth, L.; Dove, Marianne, K. and Miller, Susan, M. ‘A Counselor’s Guide to Child Sexual Abuse: Prevention, Reporting and Treatment Strategies.’ (October 2007) Paper Based on a Programme Presented at the Association for Counselor Education and Supervision Conference, Columbus, Ohio: 1-7. http://www.counseling.org/knowledge-center/vistas/by-year2/vistas-2009/docs/default-source/vistas/vistas_2009_miller-dove-miller Web Sources HM Government. ‘Working Together to Safeguard Children: A Guide to Inter-Agency Working to Safeguard and Promote the Welfare of Children.’ (March 2013), 1-97, 19. http://www.workingtogetheronline.co.uk/documents/Working%20TogetherFINAL.pdf (Accessed 8th January 2015). Draft: Legal Realism Introduction: Introduce legal realism, what it is and general criticism. Constable’s criticism: similar to general criticism in that it does not focus on legal techniques. What the paper will do: analyse criticisms of legal realism as articulated by Constable and how the paper will be presented. The Theory of Legal Realism: Green’s (2005) definition of the theory of legal realism and in particular the role of the judiciary in making, interpreting and applying the law. D’Amato’s (2009) assertion that the judiciary makes rather than merely applies law. Coplan (2011) judges declare not simply state law. Judge’s role in law making necessary: ‘in society that is shaped by social forces and needs’ (Miller, 2010:16). Additionally: Legal realists also believe that the law can never be applied with total uniformity. Given that judges are human beings with unique personalities, value systems and intellects, different judges will obviously bring different reasoning processes to the same case (Miller, 2010:16). Concluding remarks (flexibility of judiciary, reflects reality that nothing is static and unchanging [Dagan, 2012). Criticism of Theory of Legal Realism: Hart’s (Quevedo,1985) criticism of the theory of legal realism: challenges legal realist’s claim of law’s uncertainty (Hart’s interpretation of legal realism theory/flexibility of law). Explore weaknesses in Hart’s argument (Quevedo, 1985). Similarities in Hart’s Concept of Law and the theory of legal realism (Taylor, 1971). Dagan’s (2014: 254) defence of legal realism: …law as a set of institutions accommodating three sets of constitutive tensions: power and reason, science and craft, and tradition and progress. Dagan’s (2014) discussion of legal reasoning and how it reflects legal realism. More on this from Stack (2012) and Singer’s (1998:468) nexus ‘between law and society’. Show how stare decisis weakens the theory of legal realism (Damrem, 2000). Show how stare decisis is also inconsistent with the theory of legal realism (Noland, 1969). Posner (1986:180-181) (defence of legal realism) formalism vs legal realism: …can mean narrow, conservative, hypocritical, resistant to change, cauistic, descriptively inaccurate (that is, “unrealistic” in the ordinary-language sense of the word), ivory-towered, fallacious, callow, authoritarian – but also rigorous, modest, reasoned, faithful, self-denying, restrained. More from Posner (1988) on the merits of the theory of legal realism. Conclusion: Concluding remarks. Read More