Adelaide lawyer Richard Yates looks at what the law says about how long is too long for parents to leave their children unattended.
When an Australian mother pleaded guilty to a charge of neglect after leaving her children alone in her car for ten minutes, debate raged.
The woman, from Queensland, popped into the shops to pick up a few things, leaving her three children (aged 10, 5 and 3) in her locked vehicle with the air conditioner and motor running. After seeing the children unattended, a passerby called Police.
Under Queensland Law, a parent who leaves a child under 12 unattended for a reasonable time without making provision for the supervision and care of the child commits a crime with the maximum penalty of three years imprisonment. Whether the time is “reasonable” depends on the relevant circumstances.
There is no such offence in South Australian law. If this incident occurred in this state, the Mother would not have been charged with this offence.
However, our laws do give Police the power to remove children from dangerous situations, under section 16 of the Children’s Protection Act (1993). This means that if an officer believes that a child is at risk of harm (or further harm) they may remove the child by force (including breaking and entering) as necessary. The parent or guardian, however, cannot be charged under this law. The event could, however, be used in support of an application to the Youth Court for a guardian to be appointed, or could be used by disgruntled former partners as evidence in acrimonious family law proceedings.
There only time when a parent or guardian can be charged for this type of neglect issue is when it results in the serious harm (or death) of the child. This falls under section 14 of South Australia’s Criminal Law Consolidation Act (1935). Serious harm means endangering or a likelihood of endangering a person’s life. The parent or guardian must also have or should’ve been aware of the risk and failed to protect the child.
The penalties can be significant. If the child dies, imprisonment for 15 years is the maximum penalty. For serious harm, the parent or guardian could face a jail term of up to five years.
South Australia’s laws on this issue are more relaxed than Queensland. A South Australia Court would be unlikely to say that this situation, where children were left alone in a car for ten minutes, seriously endangered lives. The exception might be, for example, if it was hot day or the children were left in the car without air-conditioning for a long period of time. In those circumstances our laws are likely to come into play.
There have been situations where parents have been criticised for leaving their children in the car while drinking at a hotel or using gaming facilities. While this can be questioned morally, it is only an offence if the children are in danger.
While there’s no definitive answer to “how long is too long”, it is highly unlikely that there would be any legal recourse for a parent who left their kids in the car while dashing into the shops to pick up a couple of things. However, it does depend on the age of the children. With an infant, leaving them alone for ten minutes would not wise, but I wouldn’t expect that a ten year old (like in the Queensland matter) would be a problem in SA. Leaving older children seatbelted in locked cars unattended at a shopping centre for a short period of time is probably ok, but if it is in an open car park at night, or an extremely hot day, the danger increases significantly and a police officer would most likely use their power to break and enter. Whether it is an offence depends on the circumstances, and the impact on the child.
I don’t believe South Australia needs to follow Queensland’s lead on this. For issues such as children being left alone in hot cars, Police being given the power to remove them from such situations, and the potential for charges to be laid if there is injury, is significant enough. We are lucky in this state that through education and awareness, situations like this rarely result in injury or death and we hope that it stays that way.
Author: Richard Yates
Richard Yates is a Senior Associate at Tindall Gask Bentley Lawyers. Contact (08) 8212 1077.
This article originally appeared in SA Kids Magazine.