When it comes to children there are plenty of very impassioned people out there that have published tons of research on the subject. As such, it is now easier than ever to learn just what child abuse is, what types of abuse are out there, and to learn a little bit more about when child abuse steps out of the realm of abuse and into the realm of negligence.
What is Negligence?
It is important that when trying to determine if an action or series of action constitutes negligence or outright abuse that you first understand just what negligence is. The proper definition for the term is the failure to take proper care or caution when doing or caring for something. This means not worrying about the safety of a child, not providing nutrition and other safety measures, and generally not really trying to insure proper care for a child. Though negligence is often used as a blanket term for any type of mis-care, there are actually several different types of negligence when it comes to children.
Negligence per Se
This is one type of negligence that is more geared toward not following rules or statues. This often applies to homes that care for children. A statute is a rule or standard that has been set and then recognized by a court of law. When a statute is made it is expected that anyone that follows should live up to the statutes. Say for instance a statute is set that says that every foster child should have a bed of their own and at least two pairs of shoes. This is a statute that has been set. If someone fails to meet this statute they can be charged with negligence per se in any state. This often refers to those areas where there are homes for children and a large number of foster children. Though this can apply to children that are living with their parents, it is often applied to institutions that are federally or regularly mandated and regulated.
This is a form of negligence that is a bit harder to understand. With this type you are considered to be contributing to negligence if you do not seek help when something happens that can result in further injury. This might apply to a wide range of instances. In most cases however it applies when a child is injured and the parent or guardian does not seek medical attention to attend to the injury. In most cases, negligence will only be applied if further injury is caused by the inability or failure of the guardian or parent to take the child to seek medical help. This is very common in parents that abuse their children. In these cases both abuse and negligence charges are often filed to help get the abuser on as many counts as possible.
Elements of Negligence
Along with the many types of negligence that are common, there are also several different elements of negligence that a court has to look for. Knowing what these elements are and a bit about them can help make the process much easier and can help you determine if you are looking at a case of negligence or a case of abuse.
Duty of Care
This was a statute that was defined in 1932 in the Donoghue v. Stevenson case. This case had to do with the prosecuting person finding a bit of decomposed snail in her ginger beer. Though she got the beer from a friend, she was able to sue the manufacturer under the duty of care clause. This meant that someone that was distributing the product had a certain duty to make sure that it was safe to drink and because there was a snail in it, it was obviously not so. This applies to child abuse and care in several different ways.
It is assumed that when someone gives birth to, takes into custody, or assumes care of a child that they have a certain duty to that child to insure that the child remains safe and healthy. It is the duty of the individual in charge to make sure the child is given the basic necessities of food, water, shelter, and clothing. This does not mean that the things given to the child must be lavish but that they must at least keep the child in good health. Some might also claim that medical care is part of the duty of care.
Breach of Duty
The breach of duty is the second part of any negligence claim. This applies to children and their care in several ways. First off, this means that there is a reasonable amount of care that anyone is expected to give. This means not engaging in activities that you know will harm someone else, making sure you are careful and do not intentionally put people or property in danger, and that you as a general rule act sensibly. Someone might be charged with negligence for instance if they take a child on the road in a vehicle that they know is not safe and that child comes to some sort of harm.
In most cases for this type of charge to be filed there must be some measure of harm done to the child. When a child is harmed as the direct result of someone else’s actions when they knew that it had the potential to cause harm, they are most likely going to be charged with a breach of duty. This is a very serious charge and is often the basis of applying a negligence charge to any abuse charge that may be in the works or that may be in process.
When anyone is charged with negligence it becomes the duty of the prosecution to prove that there was some sort of negligence in the form of factual causation or factual evidence. This means that there should be ample evidence to support the claim, evidence that shows what happened, and enough evidence that it can be determined without a doubt what the cause of the injury was. This will often take into account the duty of care and the relationship of the people involved for a few different reasons.
To safeguard the people involved it is necessary that all facts be laid out and examined. Say for instance a child what jumping on a bed and a guardian saw them doing it. Knowing that it was dangerous they allowed the child to continue, the child then fell from the bed and broke their arm. The guardian could be charged with negligence and might be found guilty. However, it would be necessary that the person involved have ample evidence to prove that it could have been prevented and that some breach occurred.
Not only does evidence and fact come into play but also legal matters. This deals directly with how remote the consequences of another’s negligence really are. If the negligence was too remote, for instance it cannot be proved that they were the direct cause of the injury, or they are too far removed from the incident, it may be found that they are not guilty.
Still another factor in negligence is the actual harm that was caused by the actions of the individual. If the worst that happened from the jumping on the bed example used earlier was a busted lip, the parent or guardian is not likely to be charged with anything let alone negligence. If the child breaks their neck or suffers paralysis however, it may be that negligence will come into play. It is important that with any case the full facts be taken into account and that all avenues are explored.
Harm can vary and should be considered carefully. Though the injury or incident can be seen as the main cause of harm, other factors that stemmed from the incident may also fall under the umbrella that harm provides. Having to pay extensive medical bills, having time off of school or work, or any permanent damage caused by the incident may also fall under the category of harm and should be thought through carefully. The damage can by physical, economic, physical and economic, or just reputational.
The last process is of course damages. This is somewhat self explanatory and refers to any damage that has been accrued due to the negligence. This may mean in the terms of a child having to go to the hospital and spend days which means that large medical bills pile up.
If you or someone you know is involved in any negligence regarding a child it is best to get help immediately. If you or someone you know needs help your local police and court system can help define terms, explain rulings, and help you to sort out your troubles before it is too late.