Offences of Failing to Care or Provide for a Child in New South Wales

A recent case exemplifies how decisions made on a single night can change the course of a person’s night.

On 23 December 2022, 33-year old Veronica Tejera and her husband, 37-year old Amercan ABC U.S. news producer Dan Tejera left their two-year and five-month old daughters at a hotel room in New York City to attend a nearby steakhouse.

While there, one of the waiters noticed that Dan Tejera appeared to be unwell. According to the restaurant, Mr Tejera got up to go to the men’s room before making a detour and walking out the front doors of the restaurant, where he suddenly collapsed.

Mrs Tejera came out to check on her husband and saw him suffering what appeared to be  heart attack. Paramedics were called and the couple were taken by ambulance to hospital, where Mr Tejera was pronounced deceased on arrival due to cardiac arrest.

Children left alone in a hotel room 

While at the hospital, Mrs Tejera contacted a friend to attend the hotel to look after the infants, but hotel staff did not let them in and instead called the police. 

Officers from the New York Police Department arrested Mrs Tejera the same night and charged her with two counts of acting in a manner injurious to a child 

The offence of ‘acting in a manner injurious to a child’ attracts a maximum prison sentence of one year in prison and/or three years of probation.

The grieving widow said in a statement:

“When Dax collapsed on December 23rd, I accompanied him in an ambulance to the hospital. I asked both a close friend and my parents to rush to my children’s hotel room to attend to them as I monitored them by camera. The hotel would not allow my friend in and instead called the NYPD”.

“We had two cameras trained on my children as they slept, and I monitored them closely in the time I was away from them. While the girls were unharmed, I realize that it was a poor decision.”

 “Our family has suffered a terrible tragedy. I respectfully ask for privacy while my children and I mourn Dax’s death.”

Tempting but dangerous

It’s so tempting for parents on holiday to leave their children and head out ‘just for a drink at the bar, or a quick meal,’ particularly if the children are sleeping. 

But – it’s a risky move – as evidenced by the story of Madeleine McCaan who disappeared from her bed in a holiday apartment in Portugal in May 2007, while her parents dined at a nearby restaurant. She was three years old and has not been seen since. 

Can you leave a child unsupervised in New South Wales? 

In New South Wales there is no clear law or direction provided by the law with regard to what age children can be left alone, unsupervised by an adult. 

In many cultures it’s common for older siblings to look after younger siblings, or extended family members like cousins, but what the law in New South Wales does make clear is that the care of children is the responsibility of the parents and / or parental guardian. 

This is an important thing to note because essentially, it means that if children are left in the supervision of a carer or babysitter under the age of 18 and something goes wrong, then the parents may be held responsible not only for their children but also for the carer.

Two sections of Crimes Act of 1900 contain offences which may apply in situations where a person with parental responsibilities neglects or fails to provide for a child under his or her care.

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.