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‘Failure to protect’ law needs our backing

By Lisa Wong

Hong Kong, 30 September 2021: The insufficient safeguards to children provided by our legislations have long been an issue. Our community has been struggling in many aspects in terms of protecting children against abuse and their rights being violated.

Earlier this year, a couple were convicted and sentenced to life imprisonment for the abuse and murder of their five-year-old daughter in January 2018. This has shocked our city and people questioned whether early reporting by the people around the child, including her teacher, could have saved her from her tragic death.

There have been reports suggesting that child abuse cases increased in 2020 due to school closures caused by the Covid-19 pandemic. Considering that parents are consistently the main perpetrators in child maltreatment cases – on average around 60% in the last three years according to the Social Welfare Department (Child Protection Registry Statistical Report 2020) – and that children were spending more time at home with their parents, this is not surprising.

What is surprising is the total number of reported child maltreatment cases in 2020 actually dropped; there were 940 cases compared with 1,006 in 2019 and 1,064 the previous year. This shows the importance of the efforts of everyone, including teachers, social workers and health professionals, towards the protection of children and vulnerable persons who cannot speak up for themselves.

In jurisdictions like the UK, New Zealand and Australia, there are legislations imposing responsibility for those living with and/or caring for children and vulnerable adults to take reasonable steps to protect them from abuse. We do not have any comparable provisions in our legislations at the moment. This is why the recent report released by the Law Reform Commission of Hong Kong recommending a new offence of “failure to protect” be added to the existing Offences against the Person Ordinance (Cap. 212) is both welcome and encouraging.

The report was compiled after analysing relevant legislations in the UK, South Australia and New Zealand in relation to causing or allowing the death or serious harm of a child or vulnerable adult, failure to report abuse, and failure to protect a child or vulnerable adult from risk of serious harm, and considering the responses to the consultation paper on Causing or Allowing the Death or Serious Harm of a Child or Vulnerable Adult published in May 2019.

The proposed new offence applies in cases involving either the death of the victim, or where the victim has suffered serious harm, including both physical and psychological or psychiatric harm, as a result of an unlawful act or neglect. The scope of “victim” covers a child who is under 16 years old and a vulnerable person who is aged 16 or above whose ability to protect himself or herself from an unlawful act or neglect is significantly impaired for any reason. It imposes criminal liability on a bystander if he or she fails to take steps that could reasonably be expected to have been taken, or ought to have been aware that there was a real or appreciable risk that serious harm would be caused to the victim by the unlawful act or neglect.

The Commission further recommends that the scope of bystanders should include a wide spectrum of people, including members of the same household as the victim, and those who have frequent contact with the victim in domestic settings; and any person who owes a duty of care to the victim, such as domestic worker, social worker, schoolteacher or healthcare professional.

The maximum penalty for the proposed new offence is 20 years’ imprisonment where the victim dies as a result of the unlawful act or neglect, or 15 years’ imprisonment if the victim suffers serious harm.

The recommendations and the proposed new offence will no doubt provide further safeguards for children. However, having the relevant legislations alone is not enough. Allocating sufficient resources to educate parents on proper parenting, provide emotional support and intervention by professionals to troubled families, and provide training to people who work with children about what signs to look for and when they should report child abuse cases, is also important.

We hope to see the proposed new offence added to our legislations as soon as possible and that more resources will be allocated to providing training and education to parents and carers to better protect our children.

A Partner with Boase Cohen & Collins since 2014, Lisa Wong’s key practice areas include Family Law, Divorce and Separation, Child Custody and Financial Application. She is Secretary of the Hong Kong Family Law Association, Treasurer of the Hong Kong Collaborative Practice Group and a member of the Law Society of Hong Kong’s Family Law Committee. She is also a qualified mediator and collaborative practitioner. She can be contacted at lisa@boasecohencollins.com.

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