The consultation attracted a strong response from a large number of individuals and a wide mix of organisations from across different sectors. Responses were detailed and there was much discussion of the pros and cons of each of the proposals, with many organisations in particular providing comprehensive justifications for their views.
Overall, there was strong support for reform and modernisation of section 12, with almost all endorsing a review. Many of those who offered support did so on the basis that they found the language to be outdated and not appropriate for modern society, stating that it did not reflect cultural diversity, social and technological changes. Including emotional (or psychological harm) in the definition was seen as especially important, as well as providing clarification on key terms within the legislation to ensure consistent practice among professionals.
Updating the Language: A large majority of respondents agreed that there was merit in clearly defining the existing concepts of neglect, ill-treatment, abandonment and exposure, and although most felt that this should be done in the legislation itself, others suggested this would be more appropriate in guidance. Regardless of where the terms were defined, there was consensus that this was needed to remove any ambiguity and bring the legislation up to date. Cross referencing to existing national guidelines and ensuring that the language reflected other provisions in law was seen as important.
Supporting Professionals: Improved multi-agency training and communication were seen as the core requirements for supporting professionals dealing with children and families to identify when cases reach a criminal threshold, although some felt that most legal professionals already had a clear understanding of thresholds and that the current Criminal Justice and Children's Hearings systems worked well together to capture and deal with cases appropriately. That being said, clear, concise guidance that avoids jargon, sharing of practitioner experience, and hearing victims' voices may help to keep practitioner experience informed and evidence-based. Ensuring that definitions are consistent with other existing national guidelines and situated in wider legislation was again seen as key.
Emotional Harm: There was strong support to make it explicit in the legislation that "neglect" includes emotional neglect and "harm" includes emotional harm. A large majority also supported clear legislative protection from emotional abuse. The main reasons given in support included that emotional harm was as damaging as physical harm, has been shown to have devastating short and long-term effects and that having it defined clearly in legislation would send both deterrent messages to potential perpetrators and allow practitioners to protect children further. The main concern, raised by several individuals and religious organisations, in particular, was the need to ensure that the legislation did not encroach inappropriately into parenting and religious teaching or practices. A clear and explicit definition of emotional harm was required, which many believed would be difficult to achieve.
Section 12(2): There were mixed views around changing the deeming provision in section 12(2)(a) that relates to provision of adequate food, clothing, medication and lodging, with some respondents feeling that the focus of the legislation (as currently worded) on provision of material goods, was inappropriate in times of austerity and increasing levels of material poverty. Although respondents wished to see provision made for children, there was a strong sense that parents living in poverty should not be penalised and that more should be done by local and central government to help support families out of poverty (rather than criminalising them). There was near unanimous support for changing the deeming provision in section 12(2)(b) concerning the suffocation of a child in bed, with agreement that the legislation should reference illicit drugs, as well as alcohol, and reference different types of sleeping surface. Again, however, the most vulnerable parents would need to be supported, it was stressed, if such changes came into force.
Reasonable Person: Most agreed with the introduction of a reasonable person test in cases of risk of harm (but where no actual harm could be proved) but stressed that any application of the term must capture cultural diversity and cultural norms; parental capacity (including parents living with learning difficulties); vulnerability (including those in relationships characterised by domestic abuse); and differing levels of vulnerability of the victim. This was also one area of the consultation where more consultation and professional stakeholder engagement was encouraged, especially around how 'wilfulness' would be evidenced.
Committing the Offence: Comments mainly focused on broadening of the legislation to include anyone with the care of children, not only those who hold parental rights and responsibilities, including wider family members, professionals and anyone left to care for or in charge of a child. There were some mixed views on whether the age of the perpetrator should be specified and, if so, whether the offence should apply to those aged either 16 or 18 and above (very few felt that the age should be younger). The majority of respondents agreed with widening the in-scope age of the victim to include those under age 18 (rather than 16) and among both those who agreed and disagreed, there were views that the age specifications needed to be cross-referenced/consistent with other legislation to avoid any ambiguity.
Penalties: More than half of respondents felt that the current penalties for a section 12 offence should be amended. Suggestions for appropriate penalties were wide ranging and included higher fines, prison sentences, more community sentences, restorative/educational approaches to working with offenders, staged/incremental penalties and a suite of penalties (e.g. court enforced attendance at parenting classes and community payback orders or custodial sentences) for cases of greatest severity. Across responses, there was a strong feeling that any penalties needed to be flexible and proportionate and take into consideration the wider circumstances of each case, including previous offending.
Victims of Domestic Abuse and Other Vulnerable Parents: There were mixed views in relation to raising court awareness of the challenges faced by vulnerable parents. Overall, respondents suggested that they would like to see greater social work involvement in such cases, earlier intervention, diversion from prosecution and, when a case is investigated, all victims being identified and properly supported. While a small number felt that it may be appropriate to create a statutory defence for victims of domestic abuse who harm or neglect children as a result of coercion or under other duress, others felt strongly that the current consultation was not the correct vehicle or engagement medium for such a potentially wide ranging, difficult, and sensitive topic to be discussed. Similarly, there were views that other vulnerable parents, especially adults with learning and physical disabilities, had not been given sufficient consideration within the consultation or proposed legislative changes and there were calls for more engagement on this topic and setting out clear and explicit plans for how vulnerable parents would be identified and supported, rather than criminalised.
Position of Trust: This part of the consultation attracted a large number of responses with most offering support for extending the 'position of trust' offence to a wider range of people working with young people. Most also commented that it should extend beyond the definition of those doing 'regulated work'. There was little resistance to the proposals, but some again expressed that it would be important that the legislation did not interfere in family life and that caution was needed not to criminalise young people inappropriately, especially those working in the sports sector as volunteers and who may be particularly vulnerable to any proposed changes.
Impacts: The main equalities issues identified related to how vulnerable parents (especially those with disabilities, and victims of domestic abuse) would be protected under any changes to ensure that they were not disproportionately and negatively targeted by such changes. The other main issue was ensuring that parents who have strong religious or moral convictions are not penalised for going against mainstream cultural norms (so long as their behaviour was within legal boundaries). Comments were made that the changes could result in financial impacts for organisations who work with victims and the accused if the legislation affected caseloads, and that there may be training costs associated with ensuring that professionals and others working in the field were made aware of the legislative change (enabling them to respond appropriately to the proposed changes).
The independent analysis of consultation responses will feed into ongoing consideration of how the two offences could best be updated to reflect the Scottish Government's aspiration of protecting children and young people from harm. The Scottish Government will publish a response to this consultation, outlining the next steps and any future work that may be necessary in order to progress the consideration of updating section 12 and section 42.
There was consensus across the consultation that all steps possible should be taken to protect children and young people and most welcomed the focus of the Scottish Government on updating and revising the legislation, especially to include emotional harm, recognising how damaging this can be. While some parts of the consultation attracted strong and largely unquestioned support, there was some evidence that more thought should be given to considerations of how emotional harm would be defined, how wilfulness would be established and how already marginalised groups would not find themselves challenged even further by the proposed changes. Several organisations, in particular, welcomed the chance to remain engaged with the Scottish Government in taking forward the proposed changes to ensure that they were fit for purpose, as well as offering support to share their experiences in shaping legislative change.