Rethink punishment for 'unintentional' child neglect cases, say experts

KUALA LUMPUR: The case of a pregnant woman who was charged by the Ayer Keroh Sessions Court in Melaka last August with neglecting her three children aged 11, eight and six received much public attention.

Most people sympathised with the 40-year-old mother, saying it was probable she did not neglect her children with the intent to endanger their lives but was forced to do so due to circumstances beyond her control.

The woman was charged under Section 31 (1)(a) of the Child Act 2001 (Act 611). Under this section, it is an offence for anyone responsible for the care of a child to "abandon, neglect or expose the said child to danger so as to cause him/her physical or emotional injury." If convicted, the offender can be fined up to RM50,000 or jailed for up to 20 years or both.

The stiff penalty for child neglect does raise questions about the propriety of the sentence. For some people, particularly in the case of urban dwellers, the constraints in their lives force them to leave their children at home unsupervised when they go to work as they cannot afford to pay for childcare services.

With due respect to the laws of the country but within the context of the hardship faced by some people, should the authorities review the existing punishment and introduce a "more appropriate” penalty for those convicted of child neglect?

Punishment not the solution

For cases involving child neglect, punishing the offenders would not resolve the issue, said Dr Norhayati Mohd Noor, a senior lecturer at the Faculty of Education, Universiti Kebangsaan Malaysia.

Believing there should be a procedure in place to enable child neglect cases to be examined more closely, she said it must be understood that such cases often occurred due to financial issues and the non-availability of childcare facilities.

She said although the Women, Family and Community Development Ministry had issued a policy on the setting up of childcare centres at all places of work nationwide, childcare still remained an issue because not all workplaces provided the facility and even if they did, they had limited operating hours and capacities.

"I’m currently dealing with a case involving an urban poor family. The parents run a roadside stall and have six children, four of whom are in primary and secondary school. The two other children are still small and go with their parents to the stall every day while their older siblings come to the stall after school.

"The parents don’t want to leave their children at home without adult supervision as the doors and windows of their rented home have no grills. During my counselling sessions with them, the children complained of tiredness due to lack of rest and sleep as they have to stay at the stall until it closes at 1am," she related, adding that efforts are underway to assist the family to find a solution to their childcare woes.

Suggesting that parents charged with child neglect be given counselling together with their children, Norhayati said it would provide the family with an opportunity to share their feelings and also bring them closer.

Through the counselling process, she added, the family could discuss the childcare issue amicably and find a solution that was acceptable to the parents and children.

Thorough investigation

Lawyer Muhammad Hariz Md Yusoff, meanwhile, said child neglect cases required thorough investigation by the police, after which it was left to the prosecutor to decide whether or not criminal charges should be filed against the parent or guardian concerned.

In criminal law, generally, two basic elements - an illegal act (actus reus) and intent to commit the illegal act (mens rea) - must be fulfilled before an accused can be charged.

"In the context of the provision (Section 31 [1][a]) of Act 611, it’s not necessary for a child to be physically or emotionally injured but if there exists the probability of a risk that will cause injury to the child, it is enough for the guardian to be accused of being negligent," he explained.

Muhammad Hariz said as far as the Act was concerned, the parents or guardian must be charged with neglect if their act of leaving their children unsupervised by an adult exposed them to danger.

"We must understand that all laws are drafted and passed by Parliament to protect all parties fairly and they include children who, as everyone knows, require the full supervision of a guardian," he said, adding that the public must understand that the prosecutor did not file any criminal charge under Act 611 in an arbitrary manner.

He added that many child neglect-related cases brought before the court involved children who died or were abused or suffered injuries inflicted by their guardians.

Malaysian law sufficient

On whether Malaysia has appropriate penalties for child neglect or has to follow the approach used by other countries, Muhammad Hariz said the existing provision in the Child Act 2001 was sufficient to "teach a lesson to those who neglect their children deliberately”.

Pointing to the United Kingdom, he said over there if a child was abandoned or left without supervision even for a short duration, the authorities could take temporary control of the child. In the meantime, the authorities would try to contact the child’s guardian to ensure his/her safety.

"In the UK, the penalty for child neglect is a fine or additional fine and a maximum prison term of 14 years. In Algeria, the penalty is one to three years in jail. But if the accused is a parent or legal guardian, then the jail term is increased to two to five years," he said, adding that in India, the penalty was a fine or imprisonment of up to seven years or both.

Malaysia International Humanitarian Organisation secretary-general Datuk Hishamuddin Hashim urged the government to issue a guideline for all employers on the provision of adequate childcare facilities for their employees’ children.

He said employers could also be given the option to provide a special allowance to their staff to send their children to a childcare centre.

He added that to encourage more employers to resolve their employees’ childcare woes, the government must consider reducing the corporate taxes of companies that provided childcare incentives to their workers.

Hishamuddin said not many people could afford childcare services as the fees charged by the centres can be rather steep.

"How can B40 households earning less than RM2,000 a month afford to place their children in a childcare centre?" he asked.

UKM’s Norhayati, meanwhile, suggested that the relevant ministries collaborate with non-governmental organisations to assist poor families in urban areas by providing them with childcare facilities.

"The Rukun Tetangga committees in housing estates or village committee members can play a role in helping families that need childcare support," she said, adding that local zakat centres could also set up transit centres where young children could be placed while their parents go to work. - Bernama

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