The Offence of Child Neglect in New South Wales

by Sonia Hickey
Neglected child

Twelve members of a religious group in Queensland are facing serious criminal charges, including murder charges, after an eight-year old girl became critically ill and died when they allegedly withdrew her medication.

Elizabeth Struhs died in January 2022 after the members allegedly took her off medication for Type 1 Diabetes. 

Police allege the group members did not believe in medication and were convinced the young girl would be healed by God. 

Queensland authorities, including members of the state’s child protection investigation unit arrested the alleged members – aged between 19 and 61 – after a joint investigation.

Elizabeth’s parents, Kerrie and Richard Struhs, have already been charged with murder, torture, and failing to provide the necessities of life. 

They are yet to formally enter their pleas, and have been remanded in custody until their next court date in Toowoomba Magistrates Court later this month.  

Denied medication and medical care 

Police allege the parents withheld insulin from Elizabeth, which is necessary for people with Diabetes Type 1 to assist sugar (glucose) to enter into the cells to produce energy. 

According to medical information, without insulin, the body will break down its own fat and muscle, resulting in weight loss. 

This can lead to a serious short-term condition called diabetic ketoacidosis, which is when the blood stream becomes too acidic and a person becomes severely dehydrated.  

Police allege the young girl was denied medical treatment for a period of six days prior to her death, a decision made by her parents, but the other members of the group were aware of the child’s deteriorating condition and are legally responsible for their failure ta take steps to provide her with medical assistance. 

Police say that, instead, the group sat around her, played musical instruments, sang songs and prayed for her.

Emergency services were called the day after Elizabeth’s death.   

Queensland police say the tragic case is the first of its kind in Australia.  

The offence of failure of a person with parental responsibility to care for a child

Failure of a person with parental responsibility to care for a child is sometimes called ‘child neglect’, and an offence under section 43A of the Crimes Act 1900 (NSW) which carries a maximum penalty of 5 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You had parental responsibility for a child,
  2. You intentionally or recklessly failed to provide the child with the ‘necessities of life’, and
  3. You did not have a ‘reasonable excuse’ for your conduct.

You had ‘parental responsibility for a child’ if, at the time of the alleged offence, you had duties, powers, responsibilities and authority which a parent would have by law in respect of his or her child.

A ‘child’ is defined as a person under the age of 16.

Necessities of life include:

  1. Sufficient nutrition,
  2. Shelter, and
  3. Required medical care.

The offence of failure of a person with parental responsibility to provide life necessities

Failure of a person with parental responsibility to provide the necessities of life also comes under the banner of ‘child neglect’, and is an offence under section 44 of the Crimes Act 1900 which carries a maximum penalty of 5 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were under a legal duty to provide another with the ‘necessities of life’,
  2. You intentionally or recklessly failed to provide the person with the necessities of life,
  3. Your failure caused serious injury to, or created the likelihood of serious injury to, or endangered the life of, the person to whom you had a legal duty, and
  4. You did not have a ‘reasonable excuse’ for your conduct

Legal defences to the charges

In the event you are able to raise evidence of a legal defence to a charge of failing to care for a child or provide the necessities of life, the prosecution must then disprove the defence beyond a reasonable doubt.

If it is unable to do so, you are entitled to a not guilty verdict.

Legal defences to child neglect offences include duress and necessity.

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Author

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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