Clarity Law

The law in Queensland provides that it is an offence to leave a child under the age of 12 unattended for an “unreasonable time” without making provision for their supervision and care.

Legislation

The relevant legislation is the Criminal Code 1899 - Section 364A.

The law states that;

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.

Penalty—

Maximum penalty—3 years imprisonment.

Whether the time is unreasonable depends on all the relevant circumstances.

What does the prosecutor need to prove?

The prosecutor would need to prove all of the following;

1. The person had lawful care or charge of a child

2. The child was under 12

3. The person left the child

4. The time the person left the child alone was unreasonable

5. The person did not make reasonable provision for the supervision or care of the child

Determination of unreasonable time

Whether the time is unreasonable depends on all the relevant circumstances. The court would likely look at the following factors

• The age of the child. Obviously the older the child the more reasonable it is to leave the child alone

• The maturity of the child. The more mature the child the more likely then could care for themselves

• The length of time the child was left alone

• Whether the child had access to neighbours or a phone to seek help if something occurred

• The reason the child was left alone

Penalty for the charge of leaving a child unattended

The maximum penalty for committing an offence against this section is three years imprisonment. The court can impose a lesser sentence and has the option whether to record a conviction or not.

Examples of the charge of leaving a child unattended

AJM v Commissioner of Police

The defendant drove his vehicle into an underground carpark attached to a Shopping Centre at New Farm. The recorded temperature on this day was 38 degrees Celsius. The defendant parked his vehicle in the undercover carpark. At this time, his 4 year old son was restrained in a car seat in the front, passenger seat of the vehicle. He had been asleep, but stirred. The defendant asked his young son if he wanted to come into the shops and the child indicated that he did not.

The defendant turned the vehicle off. He left the front, passenger seat window down and he left the vehicle unlocked. He took the car keys with him. A short time later, a witness observed the defendant’s son in the vehicle. The witness remained with the young child while his wife went up the stairs to the shops to look for the defendant. She could not find him. The witness then opened the door to the vehicle so that he could fan the defendant’s son. He attempted to wake the young child but he was unable to do so.

Approximately 15 minutes after first observing the defendant’s son in the vehicle, the witness contacted the police and they arrived about five minutes later. The police also attempted to wake the young child but were unable to do so. It was thought by the police that he was unconscious. The child was removed from the vehicle to an air-conditioned police vehicle and subsequently transported by ambulance to hospital as a precautionary measure. He was released a short time later.

The defendant pleaded guilty.

Kim v Commissioner of Police

The victim child was five years old. Approximately 11am police attended a house at Windsor, in relation to reports a young child could be heard calling out at the address and sounding to be in distress.

Upon arrival, police observed the victim child at the address. However, the child could not open the door for police. Police forced entry to the address, located the victim child within the residence alone. The child was located wearing winter clothing. The unit was hot, and observed to be locked up with no fans or windows or doors open. There was food and drink left out for the child. The victim child was changed into cooler clothing by police, and QAS attended. They said the child was in good health, however, was very thirsty.

At 12.25pm that day, the defendant returned to the address. The defendant stated that she was the child’s auntie. The defendant admitted that she had been at work since 9am that morning, that she had returned home on her break at work to check on the victim child, and intended to return to work after she had checked on the child.

There was no supervision or provision for care for the victim child arranged.

The defendant pleaded guilty.

Defences

The following might be a defence to the charge;

1. The person did not have lawful care or charge of the child

2. The child was over 12

3. The person did not leave the child unattended

4. The time the person left the child alone was reasonable in all the circumstances

5. The person made reasonable provision for the supervision or care of the child

What court hears the charge?

The charge is a misdemeanour and so the matter will be heard in the Magistrates Court.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the time the child was left was reasonable in all the circumstances and so the charge should be withdrawn.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to a charge of leaving a child unattended.

What should I do if the police want to talk to me or charge me with leaving a child unattended?

You need immediate legal advice from an experienced criminal defence lawyer. Saying the wrong thing to the police can assure you will be convicted of the offence or receive a more serious penalty. There are things you can do to protect your interests and rights or minimise the penalty if you plead guilty, a lawyer will be able explain what exactly you need to do or shouldn’t do.

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