Victorian courts disproportionately penalised poor families when a child suffered from neglect, study shows

Victorian courts disproportionally penalised poor families when they heard child neglect cases, a new study suggests.

Juries treated parents – particularly mothers – more harshly if they were working class, the analysis shows. The middle classes were seldomly charged for offences related to child neglect, and when they were, they escaped liability.

Working-class mothers were considerably more likely to be found guilty, and receive longer sentences, if their child died from deprivation.

Men examined were only punished if the court felt they had the means to provide but still failed. This meant absent fathers, and unemployed fathers, were treated more sympathetically.

During this period child neglect was a criminal offence but was not enforced. As a consequence parents faced far more serious charges of manslaughter or exposure where a child experienced material neglect.

The study, by Dr Rachel Pimm-Smith from the University of Exeter Law School, is published in the journal Child and Family Law Quarterly. Dr Pimm-Smith analysed a sample of 50 court transcripts from the Old Bailey digital archives.

Dr Pimm-Smith said: “Understanding the effectiveness of enforcement during this period is important because of the heavy reliance of modern neglect law on Victorian legislate. The state is still struggling to investigate and prosecute child neglect cases today.

“Although non-physical harms were recently incorporated into modern practice, criminal law has not gone far enough to address the types of harms children experience in neglectful homes. Relying on Victorian legislation causes certain problems to reoccur. Terminology referring to wilfulness is outdated and confusing, which makes it difficult for police and social workers to respond and prevents the law from dealing with the full range of harms experienced by neglected children. The current law on child neglect needs substantial reform.”

Women were more likely to be charged than men – 17 defendants from the study were men and 33 were women. Eight cases concerned biological parents tried jointly whereas six cases concerned biological fathers tried alone.

All the other biological fathers who were tried alone were widowers who did not have living wives. By contrast, seven biological mothers and three stepmothers were prosecuted alone despite being married to the biological father. There were also three unmarried mothers who were also prosecuted alone.

Biological mothers were not only more likely to be charged, but they were also more likely to be found guilty. Twenty-seven defendants were found guilty and 23 were found not guilty. Seven guilty convictions were men but 20 were women including 14 biological mothers, three foster- mothers, two stepmothers and one aunt. Eight of the 14 biological mothers who were found guilty were tried alongside their husbands. In half of these cases the husband was found not guilty and the biological mother bore sole culpability.

In cases where biological mothers were found guilty, but the biological father was not, guilt was often inferred from the mother leaving the child to go out for work.

The transcripts reveal that fathers who were employed, but where the child still experienced neglect, were viewed far less favourably than fathers who abandoned their children or were unemployed. For example, William Neale was found not guilty for the death of his six-month-old daughter because he was unemployed and could not afford food. However, William’s wife was found guilty of manslaughter because she did not take the child to the workhouse.

Most mothers who were convicted with their husbands also received harsher sentences for the same death. For example, Elizabeth Wise was sentenced to 15 months imprisonment for the death of her six-month-old son whereas her husband Frederick was only sentenced to three months. This was justified on the basis that Elizabeth was more intemperate than her husband.