Publication - Consultation analysis

Protecting children: consultation analysis

Published: 30 Sep 2019
Children and Families Directorate
Part of:
Children and families, Law and order

This report analyses the responses to the consultation asking for views on proposals to modernise the criminal offence of child cruelty, set out in section 12 of the Children and Young Persons (Scotland) Act 1937.

We also asked for views on whether the definition of a ‘position of trust’ in section 42-45 of the Sexual Offences (Scotland) Act 2009 should be extended.

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Protecting children: consultation analysis
Language and Emotional Harm

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Language and Emotional Harm

The offence of child neglect currently legislated for in section 12 of the Children and Young Persons (Scotland) Act 1937 is defined with reference to terminology which may no longer be used or understood in modern language. In particular, there is a lack of clarity around terms such as 'mental derangement' and 'ill-treats' and, most centrally, the term used in section 12 to describe the type of behaviour which constitutes an offence is 'cruelty to children'. Section 12 does not use the term child 'abuse', but in effect section 12 (by covering ill-treatment, neglect, exposure to risk and abandonment) covers many forms of abuse.

Updating and Clarifying Language

The consultation sought views on whether clear statutory definitions of the terms "ill-treatment" and "neglect" should be included as part of a revised offence as well as whether the language of the offence could be simplified, for example by removing the terms "abandonment" and "exposure". Any updating of language would correspond to that currently understood in Scots law.

Q2. Do you think that existing concepts of "neglect", "ill-treatment", "abandonment" and "exposure" should be defined in the legislation?

Number Percentage Valid Percent
Yes, the terms should be defined in legislation 56 25% 71%
No, the terms should be defined in guidance 19 9% 24%
No, the terms should not be defined 4 2% 5%
No response 141 64% -
Total 220 100% 100%

Note: Nine respondents (4%) who did not provide a closed question response gave a qualitative comment

Almost two thirds of respondents did not answer this question. Among those who did, a large proportion (71%) supported the statement that the terms should be defined in legislation. A quarter (24%) felt that they should be defined in guidance and a small number of respondents (5%) felt that the terms should not be defined.

Among the 56 who felt the terms should be defined in legislation, 25 were responding on behalf of organisations and 31 were individuals. The main views of this group were that this option would be stronger/more robust than providing definitions within guidance only and that this would remove ambiguity/dubiety and ensure nothing is left open to interpretation, creating a stronger legal position:

"An Act of Parliament which is not sufficiently tightly-worded, and where the terms to which it refers are not clearly defined, will subsequently be subject to interpretations in practice which may not be the current focus or purpose of the revisions of the Act. Moreover, a poorly defined offence may lead to a waste of police time pursuing cases which are insufficiently attested." [Individual]

It would also provide a consistent reference point or baseline for criminal justice intervention and intervention by other practitioners working in this field:

"Defining terms in guidance might expedite the process but when behaviour that amounts to neglect is defined in the legislation, it might be clearer to professionals when children can be removed."

One public sector organisation also stressed that it was important for the legislation to be clear to avoid some cases being unnecessarily diverted into the criminal justice system, if they could be better dealt with via civil routes:

"[Organisation] would like to stress that cases which reach the criminal threshold of a section 12 offence do not all require to be prosecuted through the criminal courts. Many of those cases could and rightly should be pursued through the civil Children's Hearings process, with a court looking at the establishment of fact if there is dispute about that or if a child is too young to understand the proceedings. Clarity in relation to the legal definition of the offence and the threshold test to be applied would benefit the Children's Hearings System and those children and families involved in it." [Public Sector Organisation]

Concerns were raised, however, that defining such terms would be particularly challenging and may result in legislation which is too tight and has the unintended consequence of making it more difficult to evidence neglect:

"It would be helpful for the terms to reflect and correspond to what is currently understood. However, overly prescriptive definitions carry the risk of excluding undefined concepts or behaviours to the detriment of neglected children." [Public Sector Organisation]

Neglect, in particular, was seen as particularly hard to define and some suggested that the existing National Child Protection Guidance (2014), which defines neglect as a persistent failure to meet a child's needs was a useful starting point for developing a new definition. Others said that this definition was too lengthy to be included in legislation while yet others felt it may be too narrow as it excludes single instances of culpable, neglectful behaviour by a person in a position of responsibility that may be significantly harmful. Having a tight definition would be both useful for removing ambiguity but unhelpful if it creates legislation that excludes cases which might otherwise be included if discretion were permitted:

"…there are pros and cons in defining concepts within legislation. On one hand, defining neglect in section 12 would provide absolute clarity that it includes a failure to provide emotionally to a child, as well as physically. On the other, it might imply an ultimate, exhaustive definition of the extremely complex experience of neglect. It is also hard to imagine how a comprehensive definition would be achieved; not least, the complexity of the concept would necessitate a lengthy definition which may not be easily contained within the criminal law." [Third Sector Organisation]

There was consensus, however, that any new legislative definition would need to be consistent with existing national guidance in order to ensure that all practitioners were working within the same frameworks:

"Legislative definitions for the basis of each element of the offence would be the clearest way to establish the baseline for the behaviours, for both criminal justice intervention and intervention by other practitioners." [Public Sector Organisation]

A definition of neglect would also need to cover emotional as well as physical neglect as this was an area of particularly ambiguity:

"There is an acknowledged lack of clarity in terms of whether emotional abuse is covered by the offence currently. To clarify that emotional abuse is covered in future, there is a need for different meaning from that of current interpretations in relation to this. Rather than being introduced as a separate concept, this could be achieved through the recognition of emotional harm as part of neglect and ill-treatment more broadly." [Academia]

There were concerns that emotional abuse or harm were subjective terms. What some may consider within a suitable threshold of harm or risk (i.e. making young people resilient/giving life skills), others would define as emotional harm or abuse:

"In particular the term "emotional abuse" is a very vague term which is potentially subject to very variable interpretation and indeed 'abuse'. I would wish to see this defined very carefully and indeed would prefer "psychological abuse" or similar as this could be more carefully defined." [Individual]

There were fewer responses that related to ill-treatment (compared to 'neglect') but among those who did provide a comment, similar concerns were put forward that it would be difficult to define and that the consultation could have been clearer in suggesting what the changes to this definition may look like:

"Concerning a legal definition of 'ill-treatment', the lack of detail in the proposal makes it difficult to offer a definitive response. The intention is presumably to define ill-treatment in relation to acts as opposed to omissions, encompassing 'acts' causing or likely to cause both physical and emotional harm. As above in relation to neglect, we would be wary of including an 'exhaustive' definition of 'emotional abuse' in the law, given the complexity of this concept, and would welcome a concrete proposal before commenting further." [Third Sector Organisation]

One respondent sought clarification on how ill-treatment would overlap with the common law on assault.

Given the complexity and range of behaviours that the legislation would need to cover, several respondents commented that guidance to accompany the legislative change would also be required and that such guidance would usefully include some examples of the different terms being used:

"It would be clearer if defined in legislation, however, it may need to be expanded on in guidance. Guidance can also be updated more easily than legislation." [Public Sector Organisation]

"Legislative definitions for the basis of each element of the offence would be the clearest way to establish the baseline for the behaviours, for both criminal justice intervention and intervention by other practitioners." [Public Sector Organisation]

Other suggestions (put forward by just one or two respondents) included:

  • replacing the term "ill-treatment" with "maltreatment" to standardise the language already used by some child protection professionals;
  • ensuring that the definitions mirror guidance from professional associations and reflect Getting it Right for Every Child (GIRFEC) principles; and
  • cross-referencing the consultation to earlier research which proposed a new 'Child Maltreatment' offence in England and Wales.

Some suggested that examples of neglect and ill-treatment could be provided in accompanying guidance. Several others stressed the need to avoid legal jargon, wherever possible, to ensure that both victims and perpetrators were clear on what constitutes illegal activity (i.e. congruence between legal and operational language).

Finally, two respondents who supported the proposed change felt that care would be needed to ensure longevity of the new definition i.e. to make it "future proof" and "avoid requirements to modernise it again in the foreseeable future." [Academia]

Overall, those who supported an emotional neglect definition being contained in the law seemed to indicate that it would need to be non-exhaustive and allow some scope for flexibility, while being sufficiently robust to allow practitioners, victims and perpetrators a shared understanding of criminal thresholds.

Among the 19 who indicated that they felt the terms should be defined in guidance, 5 were organisations and 14 were individuals. The main views of this group were that it was easier to update guidance than legislation, that guidance was more amenable to allowing examples to be given and that legislation may be overly prescriptive and difficult to implement. Defining the terms in guidance was also less likely to result in criminalising the behaviour of some parents whose behaviour might be more appropriately addressed via non-criminal justice routes.

Again, it was stressed by one respondent that any guidance would need to be compliant with GIRFEC and have cognisance of current risk management agendas:

"Legislative frameworks should be child centred and based on outcomes or potential outcomes for child rather than specific behaviour of the adult. The language within the Act should reflect this." [Public Sector Organisation]

All four who said that the terms should not be defined were individuals. The main reasons given were that it should be left for Judges and the courts to decide, that common sense should suffice and that there was a need to avoid 'over-definition':

"These terms are clear in a common sense understanding and would need to be proved in a court of law. Seeking to define the terms in guidance and/or legislation will have two effects. Over definition - creating interpretation difficulties which lead to mis-application and loophole creation where badly defined terminology leads to escape from prosecution because the actual event was not defined. Leave the definitions open - and let the courts decide on a case by case basis." [Individual]

Overall, there were fewer comments related to abandonment and exposure to risk and there seemed to be a reasonable split in views as to whether the terms should be retained. Some commented that they would not wish to see the terms 'abandonment' and 'exposure' completely removed, as they felt they were still relevant, but felt they should be incorporated within the definition as they relate to neglect. Others felt that they were more specific behaviours than neglect or ill-treatment and should not, therefore, be subsumed under the broader category.

A smaller number suggested they could be dropped to aid simplification and to avoid any confusion, since they were not included in Child Protection or GIRFEC practice and were perceived to be unhelpful, outdated, not well utilised or understood and too subjective.

More specific comments included that there may be a need for clearer definitions. One individual, for example, indicated that there may be scope to differentiate between 'open' abandonment and 'secret' abandonment and that consideration should be given to Article 7 of the UN convention (UNCRC) which states that every child has the right to know and be cared for by his or her parents. They perceived that, when a child is abandoned, this right is violated. Others suggested that abandonment needed to be defined with reference to a clear timeframe.

Similarly, exposure to risk, if retained, should be clearly defined with reference to acceptable limits, as it was considered to be "open wide" at present. Indeed, more comments were made in support of retaining exposure to risk than abandonment, the main reason being that it covered cases that resulted in no actual harm, as well as it being a term already widely used by agencies (although, again, if covered under the term 'neglect' or 'ill-treatment', it could be removed with no perceived impact).

A small number of respondents indicated that, if a new definition of neglect came into force, then it may not be necessary to include these terms in legislation, but rather include them in guidance alone:

"If the definitions of neglect and ill-treatment are robust, the retention of these terms is unnecessary, and their removal would simplify the legislation. However, through our networks, we are aware that such terms are at times helpful to practitioners, and are used when articulating concerns in order to address neglect within families. The acknowledgement that these concepts remain relevant and continue to constitute neglect and ill-treatment could therefore be explicitly stated in any accompanying guidance." [Academia]

Another suggested it would be best to keep the terms until/unless strong evidence for their removal could be provided:

"We would counsel against removing terms from any modernised or reworked legislation unless and until the new legislation could be shown to satisfactorily cover situations which, under the present legislation, would be best covered by the "abandonment" and/or "expose to risk" provisions." [Legal Profession]

Most others made no comment on whether 'abandonment' or 'exposure' should be defined in law and their responses focused instead on neglect and emotional harm.

Divergence Between Legal and Social Work Definitions

The consultation recognised that social workers and frontline professionals who work with instances of child abuse and neglect can face difficulties in knowing at what point something becomes a criminal matter. Although guidance exists in the National Guidance for Child Protection in Scotland (2014)[1], legal definitions are not currently set out in legislation but are instead found in caselaw. It also recognised that not all neglect which required practitioner or social work involvement would necessarily be serious enough to lead to criminal prosecution and there may be a need to support professionals in identifying which cases reach a criminal threshold and which do not. Views were sought on this proposal.

Q3. Do you have any thoughts on how professionals dealing with children and families can be supported to identify when cases reach a criminal threshold?

The main suggestions put forward included:

  • greater clarity provided around key terms, e.g. persistent failure, significant harm, emotional abuse, etc.;
  • clear, concise guidance that avoids jargon;
  • sharing of practitioner experience, multi-agency working and peer review;
  • adopting a standard approach to interagency discussion;
  • more training for professionals, including training around equalities issues;
  • greater use of risk assessments and cross-checking of risk assessments;
  • public education/awareness raising to support professional awareness; and
  • allowing discretion, where appropriate, and not jeopardising practitioner-client relationships by creating barriers (including reducing need for paperwork).

Several respondents again commented that greater clarity around the definitions of abuse and neglect would be the main way of supporting professionals, although again it was recognised that workable definitions would be hard to achieve, especially around such things as 'wilful' or 'persistent' behaviours:

"Clarity on definitions and thresholds will be vital if professionals are to identify when a case reaches a criminal threshold.…Professionals are…often coming from different starting points, so it will be important that clear, simple information is available to them on the relevant criminal thresholds." [Third Sector Organisation]

"In our opinion the preferable approach, albeit we acknowledge the difficulties inherent in it, is to draft legislation which in itself identifies a criminal threshold, ensuring that the criminal threshold can be understood by as many people as possible by reference to the legislation itself. This saves leaving the judgement in a particular case as to whether the criminal threshold has been reached to a particular individual's knowledge, understanding, experience, and common sense, all of which will, of course, vary from individual to individual." [Legal Profession]

Practitioner experience was, however, considered key to decision making by others and should not be overridden by legislation, especially when familiarity of the practitioner to the individual situation may indicate that criminal intervention was not in the best interests of the family concerned:

"In our opinion this is a very difficult question to answer. Knowledge, understanding, experience, and common sense all have parts to play in appropriately identifying the criminal threshold. It may also be the case that a consistent line cannot be drawn, because what happens in one household in particular circumstances may be seen to reach the criminal threshold, while the same act or omission in a different household may not, perhaps because of particular mitigatory factors present in that household." [Legal Profession]

Although not directly answering the question, some respondents commented that the assumption that social workers were those making judgements about criminal thresholds was flawed and that most referrals to social work teams for suspected neglect or abuse originated from the police. The focus should, therefore, perhaps be on working with the police to more clearly define criminal thresholds in this regard. One third sector respondent highlighted that the main issues for social workers were the perceived inadequacy of some assessment processes, the lack of a robust standardised tool at national level and the problem of bias within even robust assessment tools.

Clear guidance (which could be locally tailored) was mentioned by several respondents as a necessary means of supporting professionals, and some suggested that a national neglect toolkit may be helpful[2]:

"We consider it imperative that practice guidance contains comprehensive definitions of neglect, which are reflected (if not replicated) in the law, to support practitioners in this very difficult area. Guidance could helpfully link to robustly evaluated assessment tools, where these exist." [Third Sector Organisation]

In addition to greater clarity around definitions, and provision of guidance, training and supervision was a frequently cited suggestion for support:

"Further consultation needs to be undertaken with relevant organisations and stakeholders to ensure that informed, high quality and accessible training can be provided to professionals dealing with children and families in order to identify cases and ideally work to identify risks and support families before they reach a criminal threshold." [Third Sector Organisation]

Training would need to be consistent across professions and offered on a multi-agency basis, it was suggested:

"This needs to be underpinned by multi-agency collaboration and opportunities for professionals to gain a solid understanding of the legal frameworks underpinning their practice. Knowing the powers available to you and your partner agencies, when working with children and families, will help support identifying cases that reach a criminal threshold. This can be achieved through multiagency training, shadowing opportunities, reflective practice sessions, accessing legal advice at certain points of the process and effective supervision, both individual and group/peer." [Public Sector Organisation]

Some respondents put forward suggestions for specific areas to be explored as part of training to help people make decisions around legal thresholds, including:

  • parenting capacity;
  • capacity for change;
  • disguised compliance;
  • accumulation of concern;
  • threshold of significant harm;
  • role of initial referral discussions; and
  • risk assessment.

The training would also need to include essential components of equalities awareness to ensure that professionals work appropriately with 'at risk' and marginalised groups, to ensure that they are not negatively and disproportionately affected by the legislation (including, for example, awareness of the particular challenges faced by parents with learning disabilities and those living in poverty):

"The approach to identifying and responding to serious cases of neglect should not perpetuate existing societal inequalities." [Academia]

Several others suggested that continuous self-evaluation and reflective practice sessions would be important to complement any training delivered, as well as peer review or sharing of experience:

"Multi-agency training needs to be complemented with other things which support improved multi-agency working such as multi-agency guidance, networking and group reflection/peer support opportunities." [Public Sector Organisation]

Guidance and training should go hand-in-hand, it was suggested, to support professionals:

"Professionals would need to consider a range of factors, such as the intent of the person as well as their capacity and understanding. It may be necessary to expand on such factors in the guidance in order to support practitioners' decision making. It may also be helpful for professionals to have more enhanced supervision support for such cases to allow them to reflect on their assessment and to test their thoughts out with a line manager or possible peers (group supervision)." [Public Sector Organisation]

Multi-agency discussion and decision making was also mentioned by several respondents as being important to assist professionals in decision making, including national standardised Inter-Agency Referral Discussions (IRD).

Other comments included that professionals should be trained and encouraged to collect and to retain more/better/appropriate evidence, with additional training for non-police witnesses being developed around the identification and recording of facts, and how these are distinguished from concerns or opinions. Some commented that more manageable workloads and increased resources per se, would help to support professionals. One legal organisation also commented that the term 'professional' in the context of this and other questions in the consultation was rather wide and should be operationalised.

It should be noted that several respondents (of different types) used the question to comment on what they perceived to be an incorrect focus of the consultation, i.e. on identifying criminal thresholds, rather than supporting families away from abuse and neglect. The social work ethos (and that employed by other third sector support workers too) was not a punitive one but, rather, one of support and the Scottish Government was encouraged instead to focus on how this role could be nurtured to protect families rather than penalise (where relevant):

"Rather than the identification of criminal thresholds, the focus of professionals working with children and families should be on three areas in particular. Namely, working in partnership with families and communities to prevent neglect; early and effective intervention where neglect is present (or there is risk of neglect); and provision of high-quality family supports which are accessible, attend to the holistic needs of families, and recognise and mitigate against the structural factors which compound and exacerbate family stress." [Academia]

"…we would urge the government to consider undertaking a wider examination of how the law deals with issues of neglect that considers child protection as well as criminal processes." [Third Sector Organisation]

Several stressed that, where appropriate, they would like to see cases addressed (possibly in a staged way) without the need to criminalise behaviours within the family and to work in a preventative way with families. The language of 'identifying criminal thresholds' contrasted starkly to this approach, one suggested.

Understanding Impacts

Recognising the many challenges faced by practitioners working in this field, the consultation also sought views on how, if at all, the Scottish Government could support legal professionals to further understand the impact of neglect and emotional harm on children and young people.

Q4. Do you have any thoughts on how we can support legal professionals to further understand the impact of neglect and emotional harm on children and young people?

Most respondents who expressed a view gave views that applied to the wider range of professionals who may work with children and young victims of neglect and emotional harm, rather than focusing exclusively on legal professionals.

Again, the main suggestions were:

  • that clearer definitions of key terms should be provided to help professionals;
  • clear guidance for practitioners (not only legal professionals) should be in place; and
  • Continuous Professional Development (CPD)/training (including practitioner led training and multi- or inter-agency training) should be made available, with both online and face-to-face training options being provided. Opportunities for shadowing practitioners could also be used.

The need for clear definitions and guidance to accompany the legislation were again stressed (including use of case studies) to allow legal professionals (and others) the opportunity to better understand what was considered to be a highly complex area and to ensure consistency in the way that it is handled:

"This is fundamental that the legal profession understand the impact of neglect both physical and emotional upon children and young people. This is an insidious form of harm requiring a highly developed professional understanding of its nature and the legal profession should commit itself to promote its understanding of this offence and harm visited on children. This may be by committing to training or working with professionals in disciplines experienced in this field." [Public Sector Organisation]

Focusing any guidance or training on emotional abuse was seen as key to moving away from a perceived bias in attitudes among some professionals that neglect and abuse were predominantly physical in nature (especially since physical, sexual and emotional harm or abuse were often intertwined, it was suggested):

"I think by providing consistent training across the legal professions it would help to create a common understanding of the impact of neglect and emotional harm and cement a move away from the view 'no bruise means no harm'." [Individual]

Where respondents suggested training (including online training), it was commonly felt that this should be multi-agency, and include legal professionals working with other practitioners, such as social workers, to share experiences and learning:

"Again, multi-agency guidance, multi-agency training, networking and shared reflective spaces are all critical to support legal professionals to further understand the impact of neglect and emotional harm on children including the long-term consequences for children and young people… Opportunities for professionals to network and hear about each other's roles can help bring the perspective of the child to the forefront." [Public Sector Organisation]

Several respondents encouraged training being delivered widely across the legal profession to include, for example, solicitors, the Judiciary (Sheriffs and Judges), court staff, Procurators Fiscal and other COPFS staff, legal services, safeguarders, court welfare reporters, curators ad litem, etc. to better ensure the best possible protection of children's rights. Those working in the legal profession but who are not legally qualified should also be aware, it was suggested.

Local joint working (as well as joint training), workplace shadowing as well as wider opportunities to build relationships between social work and legal professionals would also be helpful. This would allow the skills and experience of those working with children and young people to be harnessed to maximum effect:

"Encourage interaction with third sector agencies who can supply information, case studies and training, as needed. Invite…to team meetings and vice versa. Build up strong working relationships and, when needed, remove their legal head and look at the situation in a none legal manner to better understand the thought processes involved." [Individual]

A suggestion was made that training could be delivered by local Child Protection Committees (CPCs), with legal professionals being encouraged to have an active input into CPC training too, as well as CPCs leading or contributing to guidance for legal professionals (although one respondent did also point out that additional funding for training may need to be provided as those best placed to deliver the training may already be operating within tight budgets).

Learning among professionals could also be greatly enhanced from hearing victims' voices, it was suggested, as well as giving professionals access to syntheses of research in the area:

"There is a vast range of research-based evidence around the impact of ACES which is becoming very popular at present. Educational psychology services, CAMHS and other organisations would be well able to provide information (evidence based and anecdotal) regarding the immediate and current impacts to young people experiencing neglect and emotional harm, as well as the medium-term impact (e.g. supporting an adolescent who was neglected as a toddler). There is also a vast range of evidence on the impact on a range of outcomes which could be drawn upon. Perhaps this could be pulled together into a documentary or similar." [Individual]

Encouraging legal professionals to think about circumstances within a children's rights framework was also encouraged, as well as embedding SHANARRI well-being indicators into everyday practice. One organisation also suggested that there would be merit in legal professionals being familiar with and understanding the principles of 'Safe and Together'[3] when dealing with cases of domestic abuse.

Several respondents commented more generally that more could be done to raise awareness of ACEs, not only within the legal profession, but among members of the public and wider professional community:

"The far-reaching consequences of ACEs and trauma need to be better understood by the justice system to consider how they can develop a more trauma informed approach to practice and policy." [Third Sector Organisation]

"Increased understanding across all partners of the long- and short-term impact of neglect, trauma informed practice, equality and ACES…This would require commitment both through leadership and resources from both the Scottish Government and national bodies in order to evoke cultural change and embed change." [Public Sector Organisation]

Two organisations commented that they felt that legal professionals already probably had appropriate awareness of the impact of neglect and emotional harm on children and young people and that the key issue at hand was more how to overcome the complex challenges inherent in proving or pursuing these cases under the current legislation:

"We are aware of difficulties experienced in practice in terms of proving emotional harm in a court setting, irrespective of the understanding of the impact of such harm. Acknowledging this, and exploring solutions is arguably more crucial." [Academia]

Finally, while not answering the question directly, one organisation stressed that there was also a need for legal professionals, and police officers, to be aware of potential implications of section 12 charges on ongoing child protection work. Specifically, it was felt that more awareness was needed around the barriers to engagement that can be created when cases are taken into a criminal justice forum which can cause delays to social workers managing to put in place essential interventions to protect vulnerable children.

Overall, there was evidence of a strong desire to see sharing of good practice, joint learning and support from different sectors in ensuring that all working in the field could achieve outcomes that were in the best interests of the child:

"Professionals within the legal setting for child protection cases should receive additional bespoke training/awareness to enhance their overall knowledge of child protection including neglect and emotional harm. By sharing understanding of how to apply relevant national guidance to the legislation, taking cognisance of child welfare, professionals can ensure that any actions taken will result in outcomes that are in the best interests of the child." [Public Sector Organisation]

Emotional Abuse and Harm

One of the key concerns with the current section 12 offence is that it is unclear whether it covers emotional abuse and harm. The consultation sought views on whether this ambiguity should be removed by making it explicit in the legislation that "neglect" includes emotional neglect and "harm" includes emotional harm.

Q5. Do you think that children in Scotland should have clear legislative protection from emotional abuse?

  Number Percentage Valid Percent
Yes 186 85% 95%
No 10 4% 5%
No response 24 11% -
Total 220 100% 100%

Note: Ten respondents (5%) who did not provide a closed question response gave a qualitative comment

This question generated one of the largest volumes of qualitative response across the consultation, with almost all individuals (97%) providing a response, and 66% of organisations. Many of the responses from individuals were very similar in nature and this question may arguably be one which received a large response as a result of an organised campaign.

A large majority of those who provided a response (95%) 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 long-term impact from emotional abuse is huge for the victim affecting them not just through childhood but throughout their adult lives. Legislative protection if enforced would show children [and] adults that it will not be tolerated and that there are serious consequences for not caring for children both physically and emotionally". [Public Sector Organisation]

Understanding of the complexities of abuse and neglect, including emotional harm, was much more advanced and sophisticated than when the legislation was first developed, it was suggested, and so the updated legislation should reflect advancements in research and evidence.

Bringing Scotland in line with other jurisdictions that already recognise emotional abuse was also seen as important by some, as well as ensuring that the legislation reflects Article 19 of the UN Convention on the Rights of the Child (UNCRC).

Despite a strong expressed desire for including emotional abuse in the legislation, there were also some strong caveats to support. The main concern (expressed by a large number of individuals, in particular) was that reassurances and a clear and explicit definition would need to be in place so that religious organisations as well as parents would not be penalised for exposing their children to instruction and training or any teaching which may be considered counter to the mainstream:

"There must be safeguards to stop families being targeted just because children are being raised in a way that does not conform with today's culture." [Individual]

Indeed, many individuals expressed concern that 'emotional' was a subjective term and that they would not wish to see legislation which would allow people with different social or religious philosophies being targeted, penalised or criminalised because of it, nor the government trying to define how families should conform to what is seen to be 'the norm':

"It seems to me there must be safeguards to prevent families being 'targeted' just because their children are being raised by loving parents in a way that differs from the cultural norms of today - norms with which the parents, for well-established reasons, may not completely agree." [Individual]

"We accept that it is important to tackle serious emotional abuse. However, it is important that in doing so a clear and proportionate definition of emotional abuse is used. In particular, it is important that basic rights such [as] the right to freedom of thought, conscience and religion and the right to manifest religious belief are not inappropriately curtailed." [Third Sector Organisation]

"Children should always be protected from abuse, but problems could arise if the definition of abuse is not clear and precise. For example, there are people who regard it as abusive to bring up a child in a minority faith with views that go against the public consensus. Parents should not have to live in fear, otherwise they may be reluctant to seek help for their child." [Individual]

Avoiding creating a "climate of fear" through very carefully managing the legislative change was central to several of the comments received.

Several respondents spoke about the need to avoid state interference in parenting and teaching of religious beliefs per se, as well as avoiding legislation which may be misused by pressure groups to impose their own preferred parenting style.

Some also commented that a clear definition of what would constitute emotional abuse was needed to protect against children who may not be content with 'reasonable' parenting decisions trying to use the legislation inappropriately:

"Any form of abuse of children is wrong and should be prevented, it is however crucial to have a clear and well-defined way of assessing emotional abuse as good parenting involves making decisions that a child will often find distressing. Loving parents will at times make decisions that are unpopular with their children, this is not emotional abuse it is an important part of a parent's role." [Individual]

In this respect, there may be merit in including a 'reasonable person' test for emotional harm, it was suggested:

"In our opinion the legislation should be framed such that acts or omissions which the 'reasonable parent' may employ which may upset the child (such as grounding the child or taking away a mobile telephone or games console after poor behaviour) are not even potentially criminalised…In our opinion there should be a broad but precise legal definition put in place to assist understanding... incorporating a 'reasonable person' test as to the likelihood of, in this case, the suffering of some level of emotional harm. It may be that some particular level of emotional harm should be specified, to ensure that otherwise normal parenting is not criminalised." [Legal Profession]

Other caveats mainly centred on a preference among some to use the term 'psychological' instead of 'emotional' since it was perceived that this was a more established term in legislation and was less subjective.

Some comments were made that the National Guidance for Child Protection in Scotland (2014) contained a workable definition which could be used as a baseline or adopted and improved upon to inform the legislative change. Specific comments were also made, however, that emotional harm may require an assessment of resilience, as compared to psychological harm, since emotions were responses to acts, and would be differentially variable between people:

"Emotional is too broad a term and open to too wide an interpretation. How does one determine a threshold for emotional harm? What may harm one person emotionally may not harm another and it may be that different children respond differently to interventions which are not in themselves harmful but which they may respond to negatively emotionally. A negative emotional response is not in itself evidence of harm. This is particularly true with regard to different parenting styles. It is quite conceivable that emotional harm might be read into a parental action merely due to the subjective preferences of the observer when there is no emotional harm to the child whatsoever. There must be a clear threshold as to what is considered harm and there must be an objective quality to the assessment of any harm that may or may not have taken place." [Individual]

As such, one organisation indicated that further scoping work on the extent of the definition was required which included taking into account research in respect of resilience and the presentation of a child or young person to authorities. Another suggested that the interface with domestic abuse, including coercive control, also needed to be considered. One organisation suggested that other factors to be taken into account included whether the harm was ongoing or a one-off act, the intention of the perpetrator, and any cultural sensitivity.

Other organisations indicated more generally that more work would need to be done to finalise a workable definition and that it may be inappropriate to comment further until this was presented.

Others (who supported the change) commented on the problems that may be involved in proving or evidencing emotional harm:

"Yes, we agree that children should have the same protection as adults…However, we acknowledge the complexity of defining emotional abuse and the difficulties in the collection of evidence to support prosecution where appropriate. This requires a sophisticated understanding of emotional abuse and the nature of persistence and intent." [Public Sector Organisation]

"It is a term that requires work to define. It is obvious to see but very hard to prove. Emotional abuse is seen as being very vague by lawyers so they are reluctant to try to prove it." [Public Sector Organisation]

Several comments were also made that a very clear definition of emotional harm would be needed to avoid wrongful (either intentional or unintentional) accusations which could potentially waste police time, use of social work service resources, etc.:

"A broad law would also have considerable potential to waste police time. The Government must therefore take care that it does not undermine its attempts to improve the law, either by creating greater uncertainty in this area or by leaving children at real risk of abuse in danger, as a result of misdirected child protection resources." [Third Sector Organisation]

One specific concern was also raised about how malicious accusations would be identified and two individuals commented that they were concerned that excessive legislation in this area could contribute to increasing the cost of policing, health services, legal and other public services.

It is worth noting that, while a large number of responses to this question focused on not penalising or criminalising what might be considered by some as reasonable parenting, there were also views (mainly from organisations) that, where parenting practices do go beyond what might be considered acceptable, a punitive response may not always be best for tackling or resolving the neglect:

"Again, it is vital to reiterate that whilst we support ensuring robust legislative protection is in place for children from emotional harm, the criminal prosecution of parents or carers for this offence should be pursued only in the most serious cases. The response from practitioners who work with children and their families experiencing neglect wherever possible (and in the vast majority of cases) should be supportive as opposed to punitive or criminalising." [Academia]

"The themes of deliberate intent, wilfulness and understanding are prominent throughout much of the consultation, and we feel should be considered here. For a variety of reasons including, for example, learning disability and care experience, many parents do not have an understanding of what care is required or is developmentally appropriate. It is important that parents are provided with adequate support and guidance and do not fall through the net while also ensuring that children are safe." [Third Sector Organisation]

"It is our opinion that the best approach to protecting children is through early identification, early intervention and the provision of needs-led family support, which can in many circumstances mitigate the likelihood of risk of harm occurring or the emergence of neglectful or abusive behaviours…it is our experience, from working with vulnerable families every day, that if you identify and address such concerns early through preventative measures and needs-led support, then it is likely that the risk of emotional abuse or neglect will diminish." [Third Sector Organisation]

There may be scope for considering breaking generations of abuse or harm through better education with new (especially younger) parents to ensure that historic abuse does not manifest itself in future generations, it was noted:

"…since troubling numbers of parents were themselves treated in exactly this manner during their childhood, surely support, education and training for parents should precede criminalisation. I have long been distressed that despite all our investment in education there seems to be little or no preparation or training for parenthood!" [Individual]

Q6. Do you have examples of the sorts of behaviours and their effect on children that should or should not be captured by any revised offence?

Respondents were invited to put forward examples of the sorts of behaviours and their effect on children that should or should not be captured by any revised offence. This again attracted a large response (176 comments, representing 80% of the total respondent group, with many again coming from individuals, with some likely generated from a campaign).

In line with responses to the preceding question, many individual respondents highlighted that they would not like to see parenting practices which run counter to the mainstream being captured by the legislation, including religious or moral education which runs counter to the dominant cultural views at any point in time. This did not constitute emotional abuse, it was felt:

"Parents must have the right to teach their children the tenets of their own moral code, even when this moral code is contrary to what the state promotes as normative…The state has no right on the basis of its own ethic alone to pass judgement on the harmfulness of another moral or religious ethic upon children." [Individual]

Indeed, a large number of individuals expressed again that they felt the legislation should not cover traditional, religious upbringings. Several references were made to the Supreme Court declaration that "Within limits, families must be left to bring up their children in their own way" and indicated that this should be applied to section 12 (recognising the diversity of modern family life and the plurality of different parenting styles that exist). Without reassurances that 'reasonable parenting' would be excluded from the legislation (as determined by a 'reasonable person' test), there was concern that many parents may live a life in fear of being criminalised and that reasonable liberty would be taken away from parents.

While this was the dominant view expressed in response to this question, other more specific factors that respondents felt should not be covered by the legislation (mentioned by just one or two respondents each) included:

  • parents withholding their children from sex education classes (including preventing education around sexual orientation/gender identification), something mentioned again with reference to freedom of religious beliefs;
  • parents' authority to prevent their children from watching certain television/online content/use of social media, etc. as well as control over what written material/books children can read;
  • preventing children from taking part in various religious or pagan festivals that run counter to the parents' beliefs;
  • parents preventing children socialising at certain types of event/at certain hours/with certain people;
  • temporary grounding of children;
  • monitoring of a child's computer or mobile phone use;
  • removal of a child's property as a punishment;
  • making children put other's interests before their own, if; appropriate: and
  • mild chastising language.

Several respondents commented that they did not agree with the consultation document that indicated that 'corrupting' may be an example of behaviour that was commonly accepted as constituting emotional abuse. Specifically, the reference that it would be wrong for an adult to reward the child for bigotry was questioned:

"One man's bigotry is another man's common sense." [Individual]

"I have been troubled by the reference in the consultation document to 'rewarding a child for bigotry' as being emotional abuse. Does this mean that if I encourage my grandchildren, with the approval of their parents, to have strong religious beliefs which may clash with the prevailing culture norms, I will be guilty of emotional abuse? Is it an offence to regard some lifestyles as morally wrong or is it the intention of the Government, through this legislation, to insist that 'anything goes', that there are no moral absolutes? Where will this take us?" [Individual]

While several respondents stressed that they did not support those who stir up hatred or express prejudice against particular minority groups, there was a perception that some religious beliefs were being labelled as bigotry which may be creating a climate within the public sector whereby disagreement with 'free thinking' was being taken as prima facie evidence of bigotry.

Again, religious teaching was beyond the scope of the legislation, it was felt, although some did acknowledge that while it was important that freedom remained for people to teach their children according to their own faith, inciting hatred of different religious views should not be tolerated:

"As a safeguard, such parental beliefs and convictions should obviously not teach hatred towards those with opposing views." [Individual]

A wider range of suggestions for factors that should be covered by the legislation were put forward (mentioned by just one or two respondents each), including:

  • verbal abuse, such as shouting, using threatening or using abusive language, derogatory or belittling language or undermining a child (including invoking alarm, fear and embarrassment for the child);
  • exposure to harmful online/internet behaviours;
  • subjecting a child to witness abusive acts and exposing a child to sexually abusive or inappropriate content (including emotional harm caused by seeing or hearing harm to another e.g. domestic abuse);
  • coercion (including forcing a child to commit an offence) and using blame, shame, judgment or guilt to condemn a child for the behaviour of others;
  • intentionally creating conflict between a child and the other parent (used as a form of domestic abuse against the other parent but also emotional abuse of the child) including intentional parental alienation;
  • bullying, including cyber-bullying or scapegoating a child in a family group;
  • nutritional neglect (covering faltering growth and obesity as forms of neglect);
  • preventing a child from socialising and playing, as well as exclusion, separation, seclusion or lack of stimulation (contrary to others who viewed that this should rightfully be curtailed by parents, if they deemed it appropriate, especially in the case of older/teenage children);
  • threatening or harming pets;
  • not setting boundaries/children left to own devices;
  • providing or enabling a young person to use or abuse tobacco, alcohol, illegal substances, or substances which they do not have a prescription for;
  • having expectations beyond the developmental stage of the child/placing unreasonable expectations on children (e.g. to perform well at school or to take on caring responsibilities beyond their capacity); and
  • failure to engage with relevant services e.g. education and health (including not facilitating the young person to attend health care appointments).

Other suggestions included risk and fear caused by exposure to dangerous animals/aggressive dogs, etc., unequal opportunity and parents leading by bad example, including lying to professionals in front of children. One organisation also suggested that 'exploiting' as a broader theme should be included in the legislation.

Several comments were made that individuals' acts alone should not be the only factor considered to constitute emotional harm, since often emotional abuse occurs over the long term, and is cumulative, sometimes emanating as a response to physical or other abusive behaviours that are repeated over time:

"It will be important to provide guidance that not only deals with these aspects but that deals with the cumulative impact of factors that may lead to neglect and how the impact may not always be immediately apparent. It is a fact that some children are more resilient than others and may learn how to deal with and accommodate to the neglect and in these instances the impact is much harder to identify. It is also important to stress that the navigation of all of these factors will require professional judgement to be applied so it would not be a good fit with prescriptive factors laid out in legislation." [Public Sector Organisation]

Several other respondents felt that a 'list' of behaviours was not appropriate and may be too prescriptive and that the legislation should instead be accompanied by guidance which would allow all cases to be considered on their individual merits:

"A clearer definition of neglect in legislation with supporting guidance would be more helpful than having a specific list as this could be limiting for practitioners, however examples in guidance may be helpful…The focus should be on how the behaviours impact on the individual child." [Public Sector Organisation]

In particular, all acts needed to be considered 'in context' it was felt in order for their appropriateness to be understood and assessed. This may include consideration of levels of vulnerability, thresholds, shifting contexts and gradation of effect. Examples may be better placed in guidance than in the legislation, it was felt.

A small number of comments were again also made that, given the subjective nature of emotional abuse, it would be important that children's subjective views did not carry a disproportionate weight in some cases, where a reasonable adult may consider the behaviours appropriate:

"Too much emphasis is placed on children's rights. Children's thinking isn't the same as adults and often they think things aren't fair when in fact it could be harmful for them." [Individual]

"…harm must not be measured by the subjective response of the child to a parental intervention which is intended to safeguard their emotional well-being and their healthy development…Any legislation must be framed in such a way as to respect the normal range of parenting decision that parents have had the liberty to practice without state intervention for millennia." [Individual]

Although not offering specific example of what should/should not be included, more general comments were made that the legislation on emotional harm would need to be accompanied by clear guidelines or strategies for working with parents facing mental health challenges and those with learning disabilities (where understanding of emotions and emotional responses may be impaired). Similarly, the challenges faced by families with children who have learning disabilities or mental health challenges would need to be carefully considered:

"We recognise that emotional abuse may take place unwittingly for a number of reasons and may be best responded to through education and support as opposed to criminalisation. We would want to ensure that parents who are vulnerable as a consequence of mental health or learning disability are protected from criminalisation." [Public Sector Organisation]

Ensuring effective and accessible support for parents and carers to understand the impact of emotional abuse, and what constitutes emotional abuse, was also seen as critical. More research and evidence may be required before a full understanding of the types of behaviours that should be included could be posited.

Overall, the impact on individual children should be considered on a case-by-case basis, and in context, it was stressed:

"There could be a list in the guidance rather than in legislation but it should be clear that this is not exhaustive and the impact or potential impact of behaviour on the child is of more importance." [Public Sector Organisation]