Impact Assessment and Other Comments
The final part of the consultation sought views on any perceived impacts of the proposed legislative changes. Space was also afforded for respondents to comment on if there were any behaviours not criminalised elsewhere that they felt should/could be included within a revised offence, as well as if they had any 'other comments' on the consultation as a whole.
Several respondents again commented that they would not wish to see emotional abuse adversely impact on families who teach faith or moral principles, and who hold strong religious beliefs:
"Unless carefully drafted, the proposals could have an inappropriate impact on people who hold to certain beliefs or moral standards which may not necessarily be held by a majority in society, or by those responsible for applying the law." [Individual]
"[There is a] need to protect parents in the exercise of their religion and belief, including the manner in which that religion and belief may direct their parenting. It is imperative that loving parents are not stigmatised or criminalised for good-faith decisions which they make out of love for their children, just because others disagree with them." [Individual]
The other main comments related to adults with learning disabilities and mental health problems, also discussed earlier in the consultation, with strong views that vulnerable adults should be protected. One specific concern was raised that "the proposition of an objective test of the reasonable person to determine culpability would impact negatively on learning-disabled or emotionally vulnerable parents." [Third Sector Organisation] Indeed, some suggested that the proposals, as set out, may be discriminatory against this group:
"[Organisation] views measuring individuals with learning disabilities against a notional 'reasonable person' as discriminatory. This can potentially perpetuate the idea of people with learning disabilities as separate from the morally superior 'reasonable person' and instead view them as 'deviant' or as society's 'other.'" [Third Sector Organisation]
Others commented more generally that they had concerns that the idea of 'reasonable steps' having been taken by parents to guard against neglect was ambiguous and could be problematic, especially when set against barriers to accessing support services, among this group:
"The consultation paper states that it does "not think it is likely" a vulnerable parent or carer who has taken all "reasonable steps to access the support of relevant services to help overcome difficulties" will be considered to have committed wilful ill-treatment or neglect under the proposed changes…What qualifies as "reasonable steps?" Will this take into account the difficulties many parents have accessing the supports they need? Social work and third sector support services have been the victims of austerity over the last ten years, often leading to no or wholly inadequate services and long waiting lists for even the most urgent cases. It cannot be denied that sometimes the state fails in its duties to support those who need it: are these parents to be criminalised for the state's failure?" [Third Sector Organisation]
Ensuring that adults with learning disabilities fully understood the legislation was key, it was stressed (i.e. making the law accessible and easy to understand). The perceived risk, otherwise, was that there could be a particular impact on parents with learning disabilities who may not be able to understand what is required of them, or how to respond in unexpected situations.
One organisation put forward a response that focused mainly on the need to provide adequate support for disabled parents in Scotland, but also highlighted negative stereotyping and assumptions surrounding disabled parents' abilities to parent as being a wider issue to be addressed (in the legislation and more generally). Disabled and learning-disabled parents may need different kinds and levels of support, and the ability of the law to recognise individual circumstances was vital for its success:
"[Organisation] believes that the current proposals to reform the criminal law on child neglect have not fully considered the unintended consequences for vulnerable parents including disabled parents. While we recognise that there is a need to update the law in this area, we would wish to see the government's stated intention that vulnerable parents not face unnecessary criminalisation properly integrated into the proposals for legislative reform." [Third Sector Organisation]
Any revisions to section 12 should recognise the government's obligation to provide parents with the necessary help to raise their children, it was stressed, as set out in Article 18 of the UN Convention on the Rights of the Child and Article 23 of the UN Convention on the Rights of Persons with Disabilities. Proposals for providing more individualistic and proactive support for this group would also be welcomed.
Special consideration was considered necessary for how children living with disabilities were treated under this legislation. This group of children were likely to be 'hidden' and more at risk of harm in some cases. One other comment was received that reference to children throughout the legislation should give consideration to a child's stage of development not just their chronological age.
Women were also seen as potentially being more likely to be impacted by the legislation as well as young parents, those living in poverty and parents with adverse childhood experiences:
"…it is important to recognise that society is more likely to presume that women are the primary caregiver and therefore subject to higher expectations around their ability to parent. In the context of neglect, this has specific consequences for disabled women, for women experiencing domestic abuse or for women who are experiencing mental health difficulties." [Third Sector Organisation]
"We believe it is essential that an equality impact assessment is carried out with immediate effect as it is likely that the proposal as it currently stands will impact negatively on women, parents with physical and learning disabilities and young parents." [Third Sector Organisation]
While several respondents welcomed the comments in the consultation that the proposed amendments to section 12 would not result in increasing prosecutions against vulnerable parents, there was deemed to be a lack of clarity around exactly how this would be achieved, and any revised text and guidance should reflect this.
More detailed analysis in relation to the interface between neglect and adults involved in substance misuse may also be needed, it was suggested.
More general comments were made that any changes in the legislation should be compliant with equalities and diversity legislation, that any reform must be subject to a robust education equality index (EEI) report but, if implemented correctly, there should be no equalities impacts:
"If the reforms proposed are accepted then the people in all of the groups should be more fairly represented." [Third Sector Organisation]
A suggestion was made that while the legislation, as framed, should not be negatively impactful, it should be monitored if/when implemented to ensure that it has no negative impact on particular groups or lifestyles. If implemented as planned, such legislation should have a positive impact on children, resulting in greater protection from harm.
Only one comment was made that the legislation could, inadvertently, impact negatively on a number of different groups with protected characteristics, as it may bring differing views into sharper focus. One comment was made that it was important not to confuse equality with the present LGBTQI+ agenda and one respondent observed that there was no Easy Read or accessible version of the consultation offered. Overall, however, no new issues were introduced at this question which had not already been covered in relation to defining emotional abuse or protecting vulnerable parents at earlier questions in the consultation.
Few comments were made in relation to financial impacts and those that were made related mainly either to:
- the need to increase social work capacity to help work with any increase in identified at risk families which may result from the legislation (as well as additional funding for advocacy to support victims and the accused); or
- the potential for wasted time of social work services and the police (among others) in dealing with an increased volume of cases if the definition of neglect is drawn too widely (i.e. "wasted time and tax-payers' money chasing up perfectly loving normal parents" [Individual]).
The costs for training judiciary and other professionals to allow them to work effectively with the legislation could also be high (including capacity for staff cover to release others for training). Increased costs for widening access to parenting programmes and domestic abuse prevention programmes to support perpetrators and victims would also need to be considered. Any increased use of diversion from prosecution may be costly, and police enforcement costs may also increase.
One organisation commented that extended/new offences would also impact on the Scottish Courts and Tribunals Service (SCTS), in particular, including costs associated with court time and relative court programming, associated staff and accommodation resources and costs involved in relevant IT changes.
The consultation document indicated an intention to publish information regarding financial implications at the time of the introduction of the Bill and views were expressed that stakeholders should be kept informed as to the progress of the consultation and be given the opportunity to contribute to the financial memorandum at the appropriate time.
A comment was also made that the current political climate of austerity and welfare reforms was causing increasing numbers of children to live in poverty and that funding to tackle this broader issue was needed:
"Multi-generational cycles of poverty can lead to an attitude of neglect being 'normal'; in order for Scotland's children and young people to live a life free from abuse, significant funding will be required for all services tasked with the protection and nurturing of our children and young people." [Third Sector Organisation]
One respondent suggested that a full financial impact assessment would need to be completed once the full scope of any reforms becomes clear and another suggested that initial increases in costs might be mitigated by lower costs to health and justice service in the longer term if the legislation was effective.
Very few comments were made in response to this question and some comments did not answer the question directly. Specific behaviours that were referenced, (some of which are in fact already covered by other legislation), included:
- a parent/other who is aware of neglect/abuse but does nothing to stop it;
- parents wilfully preventing their children from attending school;
- exposing children to dangerous substances or activities;
- risk/harm associated with online neglect and cruelty, including encouraging a child to view online pornography, play violent internet games, etc.; and
- parents/guardians using children for purposes such as prostitution, drug trafficking or online interaction with suspected paedophiles.
Others viewed that any form of action causing harm to a child should be included.
There were also few 'other comments', but those that were given stressed that all efforts should be made to prevent neglect and abuse, which can have a significant negative long-lasting impact on children's lives, as well as that there was a need to focus on supporting and educating parents and carers to provide safe and appropriate parenting rather than increasing potential offences, where appropriate:
"The criminal law is a tool which should be used in the most extreme of cases. It must be accompanied by a range of other measures to help prevent neglect and emotional abuse, and support those who experience them, most notably early support for families and children." [Third Sector Organisation]
"There should remain scope to criminalise those whose actions meet a certain threshold of neglect. However, neglect is a much wider issue than just one piece of criminal legislation can fix. There should be efforts made to avoid negating or placing barriers to the ongoing good work with families who need to and are able to improve their parenting." [Public Sector Organisation]
Some again expressed that they did not feel that legislative change was the correct medium to achieve the Scottish Government's aspirations and some comments were also made that the consultation had not sufficiently considered other ongoing developments that were relevant to the legislative reform:
"Notably absent…is any significant information about the ongoing Child Protection Improvement Programme (including the work of the 'Our Hearings: Our Voice's Children and Young People's Board for the Children's Hearings System), the work of the 'Justice and Care' group in the Independent Care Review or the current review of child protection national guidance… We would therefore suggest that any review of the 1937 Act takes account of all of these and other significant processes, before making any legislative proposals." [Third Sector Organisation]
Others again commented on the general complexity of legislating in this area and encouraged wide, ongoing consultation and stakeholder engagement to make sure that the revised offence was fit for purpose (including a more thorough review which takes into consideration the views of children, young people and their families, in addition to the professionals who support them). Several respondents offered their support to the Scottish Government in achieving this aspiration.