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Unattended children: getting the facts straight

in Criminal Law by Emma Aldersea on

There seems to be much talk in the community, about the laws of unattended children, particularly in relation to cars. The laws vary in each state, so it's important to get the facts straight. 

Media reports of parents ducking into the servo or the corner store and leaving their kids in the car for five minutes have everyone worried that there’ll be a police officer waiting to reprimand them for their actions.

From what we've heard, it seems that the vast majority of the community are more confused than worried about unattended children laws, and many think it’s excessive, particularly when they actually hear what the penalty is. Here's a breakdown of unattended children laws in some states:

Queensland

Legislation: Queensland Criminal Code Act 1899 (QLD) - Section 364A

(1) A person who, having the lawful care or charge of a child under 12 years, leaves the child for an unreasonable time without making reasonable provision for the supervision and care of the child during that time commits a misdemeanour.

Maximum penalty—3 years imprisonment.

(2) Whether the time is unreasonable depends on all the relevant circumstances.

New South Wales

Legislation: Children and Young Persons (Care and Protection) ACT 1998 - Section 231

A person who leaves any child or young person in the person’s care in a motor vehicle without proper supervision for such period or in such circumstances that:

(a) the child or young person becomes or is likely to become emotionally distressed, or

(b) the child’s or young person’s health becomes or is likely to become permanently or temporarily impaired, is guilty of an offence.

Penalty: 200 penalty units. 

Victoria (to be updated 27th Jan, 2015)

Legislation: Children, Youth and Families Act 2005 (Vic). Section 494:- Offence to leave Child unattended

(1)   A person who has the control or charge of a child  must not leave the child without making reasonable provision for the child's supervision and care for a time which is unreasonable having regard to all the circumstances of the case.

Penalty: 15 penalty units or imprisonment for 3 months.

(2)  Proceedings for an offence under subsection (1)—

  1. must not be brought against a person who is  under 16 years of age and is not the parent of  the child; and
  2. may only be brought by a person after consultation with the Secretary

Western Australia

LegislationChildren and Community Services Act 2004. Part 4, Division 7, Subdivision 1

A person who has the care or control of a child and who leaves the child in a motor vehicle (as defined in the Road Traffic Act 1974) without proper supervision for such period or in such circumstances that —

(a) the child becomes or is likely to become emotionally distressed; or

(b) the child’s health becomes or is likely to become permanently or temporarily impaired, is guilty of a crime, and is liable to imprisonment for 5 years.

Penalty: a fine of $36 000 and imprisonment for 3 years.

What this means

In Queensland and Victoria particularly, these laws mean if you leave a child unattended, whether it be in a car or at home, and that child is left for an unreasonable time and no reasonable provision for the supervision and care of that child has taken place, then ultimately you have committed a misdemeanour.

Most people may think that’s harsh, but what we need to do, is give due regard to the word ‘unreasonable’ and how it applies in each case.

I do not think for a moment that a person who, for instance, leaves their 11-year-old child in a car in the shade at a service station for one minute while paying for the fuel, breaches this provision of the Criminal Code. But if a person were to leave an infant locked in an un-shaded car at a service station while they go inside to join a queue to pay for fuel, this could breach the provision.

The differences here, is that the circumstances in the second incident, could be seen as potentially unreasonable, as compared to the circumstances in the first incident.

The courts will take into consideration various factors that contribute to the circumstances of the incident, such as the age of the children, the length of time the children are left unattended, the presence or absence of heat and shade, the location of the vehicle, and the reason the children were left unattended.

There's no doubt that 99.9% of parents love their children dearly and go to great lengths to ensure their safety at all times. And it would appear that many judicial officers agree. Most of the matters that have gone before the court have resulted in penalties such as a good behaviour bond or even an absolute discharge. Such a sanction sends a direct message that the judicial officer is completely satisfied that no malice or deliberately reckless attitude attended the particular instance.

However, there are things that can go wrong with unattended children. For example:

  • the car overheats far more quickly than a person thought would be the case
  • a child inadvertently bumps into a handbrake or gearlever and causes the vehicle to move
  • the locality where the vehicle was parked was far from optimum and the vehicle while stationary is involved in an accident with another vehicle
  • the car can be stolen in circumstances where the thief fails to note that a child was present in the vehicle
  • the child can be taken from the vehicle.

These laws aren't designed to punish parents who simply have fewer hands than they do children, but is it possible that due to the perceived excessive penalty, we’re now more aware of potential dangers?

A surefire way for a parent to ensure that none of these things happen is for them to take the child or children from the vehicle. The relatively minimal extra effort required is negligible when compared to the burden of guilt, regret or grief that results when seemingly innocent circumstances dramatically change very quickly.

Whereas leaving a child or children in motor vehicles is the topic gaining publicity at the moment, the legislation is not limited to leaving children under the age of 12 unattended in the car but also applies to anywhere including the family home.

For more information, see our Criminal Law services.

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