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
Revision of Section 12(2)

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Revision of Section 12(2)

The current offence includes two deeming provisions, namely:

  • 12(2)(a) - where there has been a failure to provide or procure "adequate food, clothing, medical aid, or lodging" for a child; and
  • 12(2)(b) - where the death of a child under 3 is caused by suffocation (not caused by disease or the presence of a foreign body) while the child was in bed with an adult who was under the influence of alcohol.

A section 12 offence is committed whenever it can be evidenced that the conduct was 'wilful' in the sense of being deliberate in relation to either of the above.

Failure to Provide

In relation to the first of these provisions, views were sought on whether it should remain unchanged, and remain within the legislation, as written.

Q7. Do you think the provision in section 12(2)(a) concerning failure to provide adequate food, clothing, medication, or lodging should be changed?

  Number Percentage Valid Percent
Yes 36 16% 54%
No 31 14% 46%
No response 153 70% -
Total 220 100% 100%

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

A large proportion of respondents (70%) did not answer this question and, among those who did, there was perhaps some misinterpretation of the question, with some answering in response to the change proposed to section 12(2)b instead of in relation to not changing 12(2)a.

Among those who gave a response, an almost equal number supported the proposal as opposed it. Reasons given in support of change included:

  • the existing provision was too narrow;
  • there was a need to update the language/use more modern terms;
  • there was a need to change reference to 'medication' and 'lodging' in particular, to make the legislation clearer and provide objective definitions;
  • what constitutes 'deliberate' failure to provide may be unclear; and
  • broadening the provision would allow more cases to be prosecuted.

The term 'lodging' in particular attracted comments for being not commonly understood, as well as being outdated. It could be replaced with the term 'accommodation' or 'shelter', it was suggested. Reference to 'medical aid' could also be broadened or changed to 'failure to meet a child's health needs', it was suggested.

Some caveats were presented to change, including that consideration would always need to be given to individual cases, especially where poverty was a contributing factor to a parent's inability to provide food, clothing, etc. Where poverty, rather than parental intent to neglect is a cause for the failure to provide, a different response may be needed, it was suggested (again, supporting rather than criminalising the most vulnerable families):

"This also needs to be considered around the impact of poverty and whether parents would be criminalised for lack of finances and resources." [Public Sector Organisation]

Views were also expressed that the wilful and repeated nature of failure to provide would be key to evidence neglect, since one-off instances may be justifiable, in some cases:

"The word "wilful" qualifies the parent's failure before the act becomes criminal but that might protect only those who are wholly free from fault... If the word is to remain (or something similar) then the concept of wilfulness should perhaps be tightened - in this context only - to mean an act of deliberately withholding shelter as opposed to actions that lead to an inability to provide shelter." [Individual]

"[Organisation] believe that every effort must be taken to ensure that parents are not unfairly prosecuted. A failure to adequately provide for their child could be as a result of issues that are out-with their control, such as poverty, homelessness or the impact of trauma and abuse. Only in the event that such failure to provide food, clothing, medication or lodging is 'reckless', or 'deliberate', for example, a parent deliberately withholding medication or food from their child as a way of punishing them, should a conviction be considered, and this must be clearly stated within the provision. The risk of keeping the provision as is, is that parents may become subject to unfair convictions." [Public Sector Organisation]

The focus of the legislation (as currently worded) on provision of material goods, was seen as inappropriate in times of austerity and increasing levels of material poverty and there was a strong sense that vulnerable parents needed to be protected (consistent with other areas of the consultation). There was a need to delineate physical privation of material poverty from privation of emotional poverty, it was felt (and one respondent suggested adding 'failure to nurture' to the provision). This included not only those living in poverty, but also those with learning disabilities or mental health challenges which may impact on their failure to materially provide:

"Parents with learning disabilities should not be penalised when lack of support is misread as neglect. There needs to be clarification that if information is not provided in an accessible format and/or parents are not provided with the right support they should not be seen as criminally guilty." [Third Sector Organisation]

Among those who felt that the legislation should remain unchanged, the main reason given was the legislation was important to ensure that all children had their basic needs met. The existing provisions were sufficiently clear, it was felt, and failure to provide adequate food, clothing, medication, or lodging should remain a key part of legislation on neglect as well as to protect children's human rights.

The other main reason, similar to those given by respondents who said that the legislation should change, included that overly prescriptive changes may bring a risk of criminalising poverty/parents living in poverty (and who are unable to provide food, clothing, etc.):

"There are families that can't subsist on the money they have. This results in there being not enough food in the house and such poverty should not be conflated with neglect. We cannot criminalise and risk further ostracising families in poverty that might be trying without success but are not neglectful. The "wilful" part of neglect is very important. If parents do not have adequate food because of debt and poverty, they are not neglectful or doing anything "wilful" that would harm the child." [Public Sector Organisation]

Finally, some organisations that did not provide a closed response to this question also raised the possibility that the legislation should recognise in some way that failure to provide could be used by a perpetrator of domestic abuse as a way of exerting control over the family. Partners may be victims in this case and therefore care would need to be taken in considering if/how parents subject to the controlling behaviour of a partner in this regard should/would be held accountable:

"Due to domestic abuse, a parent or carer may be unable (practically or emotionally) to undertake the necessary tasks (such as access money to purchase food, or leave the house to collect medicines/attend health services) to avoid failing to provide what is necessary under these provisions. If the court is not required to establish that such behaviour amounted to neglect, but this is automatically held as the deeming provisions have been breached, this could lead to victims of domestic abuse being inappropriately held criminally responsible." [Academia]

Suffocation of a Child

With regard to the deeming provision in section 12(2)(b), which sets out that the suffocation of a child under 3 while in bed with an adult under the influence of alcohol to be child neglect, the consultation proposed two changes. Firstly, that this should be extended to apply to persons under the influence of illicit drugs, as well as those under the influence of alcohol. Secondly, that it should include situations where the adult and child are lying on any kind of furniture or surface being used for the purpose of sleeping, not just beds. Views were again sought on this proposal.

Q8. Do you think the provision in section 12(2)(b) concerning the suffocation of a child while in bed should be changed?

  Number Percentage Valid Percent
Yes 54 24% 81%
No 13 6% 19%
No response 153 70% -
Total 220 100% 100%

Note: Seven respondents (3%) who did not provide a closed question response gave a qualitative comment

Again, a large number of respondents did not answer this question (70%).

Among those who did provide a response, most (81%) agreed that the provision should be changed in line with the proposals.

A large number of respondents agreed specifically that it was important to widen the provision to include illicit drugs as well as alcohol as this would mirror more closely the substance misuse trends of modern society. Several suggested that 'intoxication' of any kind should be captured:

"An extended provision should include suffocation in any circumstances where the parent/carer is 'intoxicated', whether through drink or other substances." [Third Sector Organisation]

Some wanted to see the provision broadened to include prescription medication, which they perceived could be equally as damaging if used irresponsibly.

Several others also explicitly welcomed the inclusion of co-sleeping on surfaces other than beds in the proposed change, again reflecting modern practices in some families (especially those living in poverty). While welcomed, however, two organisations suggested that this may be difficult to prove and another indicated that it would be difficult to balance culpability against what was in the best interests of the bereaved family and the interests of the public:

"There are questions of parental capacity and public interest, which may determine prosecution in these tragic circumstances, that may well cause total disintegration in the lives of those that are culpable, and in the ecology of their family circumstances." [Public Sector Organisation]

Importantly, some organisations again stressed that families experiencing these types of challenges may need to be supported, rather than criminalised, especially as it was unlikely that suffocation in this way would ever be intentional (and loss of a child would be punishment enough):

"Whilst there may be cases where it is considered appropriate to prosecute parents or carers in these circumstances, for many it is likely that those individuals (and their families) in such tragic circumstances will require support. Such prosecutions should progress only if they are genuinely in the public's interest, and supports to the family (including other children in the household) are paramount." [Academia]

Other more disparate comments included three respondents who questioned why the age was set at 3, and did not cover other vulnerable children including, for example, those with disabilities of an older age. One organisation suggested that the changes would reflect current research and evidence and so was welcomed while another suggested that all cases should be considered individually on their own merit. One respondent also commented that this change may benefit from further discussion with health professionals such as midwives and health visitors in relation to the advice given to parents on co-sleeping. One respondent welcomed updating the legislation for all of the reasons above:

"It is too limited in its definition and is of its time. This section requires to reflect current social habits which are potentially harmful to children so as to take account of alcohol and drug misuse, domestic violence, coercive control and carers' mental ill health, etc." [Public Sector Organisation]

Others expressed that the proposed changes would add clarity more generally and one suggested that consideration be given to providing two offences, i.e.:

"Sleeping when under the influence of alcohol or any other substance which effects physical or mental control where suffocation is proven"; and

"Where there has been co-sleeping and no other reasons for death has been established, however significant intoxication of alcohol or any other substance which effects physical or mental control is established." [Public Sector Organisation]

Among the 13 who did not support the proposal, no explanations were given except one individual who commented that personal experience meant they would like to see the provision retained (although they made no comment regarding the proposed changes). One organisation also commented that the provision may not be required, as it was covered elsewhere in the section 12 offence.

For the most part, responses to this question were supportive of the need to broadening the offence to cover any person who is under the influence of alcohol or any other substance which effects physical or mental control and to broaden the reference from simply a bed to any place where sleep or rest was taking place.