Leaving a child unattended
- Section 361 of the Penal Law, which prohibits leaving a child without proper supervision, states:
Anyone who leaves a child under the age of six without proper supervision, thereby endangering the life of the child or harming or likely to cause real harm to his safety or health, shall be sentenced to three years' imprisonment; to do so by negligence, to one year's imprisonment; to do so with the intention of abandoning the child, shall be sentenced to five years' imprisonment.
Section 361 The law reflects the duty imposed on a parent or guardian of the child, to take care of him and prevent harm to him; and prohibits, accordingly, leaving a child under the age of 6 without proper supervision, in a manner that endangers his life or harms or is likely to cause real harm to his safety or health. And to be precise, Section 361 Law The Penalties Isn't It is limited to situations in which a young child has been left in a dangerous and isolated place, but applies in any case in which he is left alone in a way that may create a danger of harming him. Therefore, the offense may take shape even when the child is left alone in his home, his place of safety; And even when one of his parents (or another person in charge of him) is in another room in the house at the same time, he does not supervise him properly (See, for example: Criminal Appeal 4732/10 State of Israel v. Anonymous [Nevo] (January 2, 2012) (leaving children alone at home); Criminal Case (Shalom T"A) 8023/06 State of Israel v. 'Aziza [Nevo] (May 15, 2008) (The Honorable Judge) Dorit Reich Shapira) (two cases of leaving a child unsupervised, while one of the parents was at home); Criminal Case (Shalom Eilat) 10554-08-12 State of Israel v. Madlassy [Nevo] (January 13, 2015) (Honorable Judge) Shosh Shitrit) (a nursery caregiver left a child in the bath without proper supervision)). The place where the minor is left without proper supervision may, indeed, serve as an indication of the existence of such a risk, for example, if it is a place that is dangerous in itself for a small child (such as a place near a busy road); However, the offense is consolidated even when it comes to a place that is ostensibly safe for the child, such as his home or kindergarten.
- In the present case, the appellant was convicted, as stated, of two offenses of leaving a child unattended – Charges 8 and 13. With regard to Charge 8, the trial court ruled that one of the assistants placed N.S. on a swing suspended on a device high above the floor (above, and hereinafter: the swing), without properly tying it, and left the room. A few minutes later, the minor fell from the swing, his head hit the floor, and he crawled near her on the floor. A few minutes later, the appellant entered the room, placed another toddler, A.A., on the swing, without tying him up and without paying attention to N.S., and left the room. For many minutes, the two minors remained in the room without an adult being there or approaching them, while A.A. was crying, without anyone approaching him, and he was also in danger of falling off the swing (A.A. is seen in the videos swinging from side to side) and N.S. crawling close to him on the floor. Thus, if A.A. had fallen, he might have hurt N.S. The period of time during which the toddlers were left alone and without proper supervision, according to the videos, is about 18 minutes (it should be noted that the appellant entered the room at a certain point for a very short time), in a manner that creates a risk for them – a risk that was even realized in relation to N.S. who fell from the swing (it should be noted that according to what is seen in the videos, the swing is not very high, but rather it is more or less at the level of a person's knees).
The appellant's main arguments in this matter are that the minors were not left alone in a dangerous or isolated place, which was not in eye contact, but were in the nursery room within the kindergarten compound; and that she did not put the minor N.S. on the swing, but one of the assistants. These arguments do not justify accepting the appeal. With regard to the first argument, it has already been clarified above that the offense of leaving a child without proper supervision can exist even when the place where the child was placed is not, in itself, a dangerous or isolated place. Indeed, in this case, even though it was in the nursery room in the kindergarten, the toddlers were left alone and unsupervised, in a manner that creates a risk for both of them (a risk, which, as stated in relation to N.S., was also realized by falling from the swing). It should be emphasized that it is not possible to compare the risk involved in young children being together (and may, for example, fight or bully each other), when the kindergarten staff is adequately supervising them and, if necessary, can approach them immediately; and the significant risk that arises when the children are unsupervised, so that the kindergarten staff is not attentive to them (at least not sufficiently) and cannot take care of them and protect them. In the present case, as stated, the toddler N.S. fell from the swing and hit his head, but no one approached him – whereas if he had been under proper supervision, it can be assumed that the appellant or one of the assistants would have approached him immediately, and provided him with appropriate treatment. Similarly, as mentioned, the toddler A.A. cried for a long time without anyone from the kindergarten staff approaching him.