Identified Issues with the Current Offence
Offences of cruelty to persons under the age of 16 are prosecuted under section 12 of the Children and Young Persons (Scotland) Act 1937 ("the Act"). It provides that an offence is committed where a person who has parental responsibilities in relation to a child or young person, or has charge or care of a child or young person:
"wilfully ill-treats, neglects, abandons or exposes him, or causes or procures him to be ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering, or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement)."
The legislation stipulates that the offence can only be committed by a person who is aged 16 or over and who either has parental responsibilities in relation to the child, or has charge or care of them. Neglect or ill-treatment must also be committed wilfully for it to be an offence and only children or young people under the age of 16 can be victims of the offence.
The main issues identified with the existing Act, which prompted consultation on whether there was a need for reform, were that the language in the Act is outdated, it is unclear if the current offence covers emotional harm and that there can be difficulty in prosecuting cases under the Act given ambiguity around the notion of wilful activity. The need to differentiate between risk of harm and harm actually occurring is also unclear in the legislation. The age at which a person can be a victim of the offence also differs from other legal age limits and the current definition of who can commit the offence has historically been seen by some as too loose.
The first part of the consultation sought views on whether the existing offence would, therefore, benefit from reform and modernisation.
Q1. Do you think that the offence in section 12 of The Children and Young Persons (Scotland) Act 1937 would benefit from reform and modernisation?
Note: Six respondents (2%) who did not provide a closed question response gave a qualitative comment
Roughly half of all respondents provided an answer to this question (54%).
Among those who provided a response, 93% indicated that they felt that the offence would benefit from reform and modernisation, with only a small number (7%) indicating that it would not.
Many of those who offered support did so on the basis that they found the language to be outdated, and not reflective of cultural, social and technological changes:
"We consider that the wording used in the 1937 Act is archaic, a product of its time. We consider that modernisation is overdue in order to bring the offence into line with modern thinking and modern understanding of child abuse and child neglect. Reformulation of the offence would also allow for increased use of statutory definitions which would assist in removing some of the doubt and uncertainty that surrounds the legislation at this time." [Legal Profession]
Words that were seen as particularly obscure and outdated were wilfulness, ill-treatment and mental derangement, and many urged that none of these terms had a place in any revised offence.
A large number of other respondents agreed with the need to reform simply on the basis that they viewed it as a positive step towards further protecting children. Others commented that they supported reform for all of the reasons set out in the consultation document itself.
Changes that respondents particularly welcomed or felt should be included in the reformed offence included:
- emotional or psychological harm;
- consideration of persistence;
- assaults on, as well as neglect of children; and
- the notion of a 'reasonable person'.
Most respondents acknowledged that it would be difficult to clearly define many of the core concerns at hand, especially the notion of emotional or psychological harm. Indeed, many urged that caution be taken in any definition of emotional harm that was introduced so as not to widen potential for criminality excessively.
Vicarious harm could be caused to children, it was stressed, by unnecessarily getting some families and children involved in the criminal justice system where other non-criminal routes of addressing neglect may be more appropriate.
Indeed, a common theme was that, while broadening the offence to include emotional harm was welcomed, people did not wish to see it defined so broadly that it might open up 'reasonable' parenting to unwarranted scrutiny.
One organisation stressed that this was a particularly acute issue for parents with learning disabilities and that care needed to be taken to ensure that vulnerable parents did not find themselves at risk of prosecution (discussed in more detail later in the report). Similarly, on the theme of criminalising vulnerable parents and carers, it was stressed by some that particular care would need to be taken that, in widening the terms of the offence, victims of domestic abuse were not penalised as a result of the actions of their partners (again discussed more below). Responses to neglect and emotional abuse must support both parents and children simultaneously, it was felt.
One CPC commented that getting the definition of emotional harm right was essential, as the change to this legislation, as well as other planned or existing legislation could otherwise negatively (and wrongly) impact some parents:
"[Organisation] would like to note that while supportive of the review of section 12 we have some concerns that changes in the legislation along with the introduction of other legislation such as the Equal Protection Action may result in more criminal actions against parents. This is counter to some of the wider policy direction regarding early intervention and a focus on addressing inequalities such as poverty and the links to neglect." [Public Sector Organisation]
Other respondents urged that while they supported 'modernising' section 12, clarity was also required on the anticipated impact of these changes on statutory services and the families that they work with. Similar concerns were raised by some religious organisations, who felt that any new terminology needed to be very carefully considered so as not to discriminate against different religious or cultural practices. Others commented more generally that any criminal justice intervention needed to be proportionate once the offence was redrafted and that penalties for the new offence needed to be carefully considered (with reference to both the victim, offender and impact of neglect).
Although also seen as difficult to operationalise, there was support for the offence to be extended to explicitly cover individuals without Parental Responsibilities and Rights (PRRs). There was also support that the offence should be capable of being committed by a person of any age (including parents under 16), and that the new offence should apply to victims aged 18 and under (rather than 16) although both of these issues were mentioned less at this question than the need to revisit language and to include emotional harm in the revised offence. Dedicated questions on the age of the offender and age of victim were, however, included later in the consultation and attracted a strong response.
Several respondents expressed that they would support retaining core components of the current legislation, especially around failure to provide adequate care:
"We are content that the offence will continue to deem a failure to provide adequate food, clothing, medical aid or lodging as wilful neglect likely to cause harm, including a child suffocating in a bed where the child is in bed with a person under the influence of alcohol and that it should now be extended to cover persons who are under the influence of illicit drugs." [Third Sector Organisation]
Another main reason for support was that it provided an opportunity for legislation to reflect society's more nuanced understanding of the impact of neglect. Much research/evidence was available, it was suggested, which would allow legislation to be more informed than when it was first developed and this should be harnessed.
Other reasons given in support, included that it would clarify the statutory basis for social work intervention, support legal processes and give victims more confidence to come forward/report offences.
There was a strong sense across responses that the legislation needed to be accessible to practitioners, and that reform would assist this:
"Reformation of the legislation presents an opportunity to better reflect the multi-agency responsibility for recognising and responding to neglect and contribute to a collective response. It would also help if legislative reform is accompanied by detailed guidance on issues associated with neglect and the application of law." [Public Sector Organisation]
A few respondents urged ongoing review of any updated offence to ensure that it remained fit for purpose and others suggested that any changes must be at least as precise as the original definition, and that no ambiguities should be introduced.
Among those who did not support the need for reform and modernisation (all individuals), the main reason given was that the existing laws were already adequate to protect and safeguard children. Updating of the Act may simply entail introducing new terminology which could be equally difficult to understand:
"The items identified as requiring reform are difficult to prove and are clearly difficult to define. As with other attempts to "reform" law - there will be a lack of clear definition of the terms and therefore people will be open to mis-application of the law." [Individual]
Six respondents that gave no 'closed' response to Question 1 did give some qualitative comments. These included two organisations who urged that the criminal law was not the only means of protecting children:
"[Organisation] understand that in some cases, there is without doubt need for criminal prosecution of parents for their treatment of children. However, in our experience, this is not where change is most urgently required to fulfil children's right to be safe from abuse and neglect." [Third Sector Organisation]
Organisations also commented that the policy intention behind the change to law was obtuse and required more debate and discussion with relevant stakeholders. Consideration of other relevant ongoing policy initiatives which may impact on the section 12 review may also be prudent, it was felt. Overall, however, most respondents supported retaining, updating and strengthening the law subject to changes in language, since they perceived that it offered a vital tool in protecting children and ensuring that neglect was met with criminal charges.