Risk of Harm
The consultation highlighted that it can be difficult to prove a section 12 offence in cases where no actual harm has resulted but where actions of the accused have put a child in a position of significant risk. It also recognised that these difficulties may be compounded if emotional harm was to be included in any revised legislation.
Proving a Likelihood of Harm
The current offence requires the court to establish that unnecessary suffering, or injury to health was "likely", but does not require the court to establish that actual harm has occurred. To strengthen the legislation, it was proposed that the revised offence could include a requirement that a "reasonable person" would consider the accused's behaviour to be likely to cause the child physical or psychological harm, before the offence is committed. The phrase "reasonable person" refers to a hypothetical person in society who exercises average care, skill, and judgment in their behaviour.
Q9. Do you think that the test for establishing whether harm or risk of harm occurred should include a requirement that a 'reasonable person' must consider the behaviour likely to cause harm?
Note: Fourteen respondents (6%) who did not provide a closed question response gave a qualitative comment
Two thirds of respondents did not answer this question (66%).
Among those who did, the majority agreed that the test should include the reasonable person requirement (84%). The main reasons given in support were that this test was an objective requirement that was well established in law, that it would make the legislation clearer (especially if accompanied by guidance) and would remove subjective bias, as well as removing the burden of responsibility on victims to evidence that an offence has occurred:
"The reasonable person test provides a basis/ 'benchmark' on which to support decision making in individual cases. It is also well understood in law and would provide valuable clarity for PF, Sheriffs and Judges who would also be able to explain this concept to Jury members where required." [Public Sector Organisation]
"The movement of the legal test to consider the accused behaviour as likely to cause physical or psychological harm before the offence, is welcomed and will reduce the burden on victims providing evidence." [Third Sector Organisation]
One organisation indicated that this change may simplify the approach that COPFS and the Children's Reporter require to take in establishing these cases.
One respondent stressed that they felt this test would also remove any ambiguity which might otherwise be introduced by the context of the offence:
"In keeping this test, it removes any mitigating factors that the parent may feel are appropriate, and looks at the context that the offence or risks arose. This then removes the influence that the circumstances that the parent was raised in which may influence their actions (or lack of) and looks at what is reasonable for the young person if they were in a more typical or usual environment. I think that this must remain in place." [Individual]
Another offered support primarily on the basis that a need to prove actual harm was insufficiently protective or preventative:
"It would be unacceptable to have legislation which could only be pursued after a child was harmed. Although it would not mean that children would be left at risk, as there are other means of protecting the child, it could potentially mean that other children could be at risk of harm in the future." [Public Sector Organisation]
While several respondents supported the change on the basis that it would add clarity and help to reduce risks to children and young people, several caveated their support by stressing a need for the reasonable person test to be clearly defined, for it to be evidence-based (and not based on societal assumptions) and for it to be clearly understood by members of the general public as well as professionals:
"It must be so that a parent or someone else would reasonably see this as a risk not someone who is an expert in this type of thing which could not reasonably be foreseen by the averagely educated lay person." [Individual]
"While we recognise this is an established phrase in law already, we note some reservations in relation to how robust a 'reasonable person' test is in capturing cultural diversity." [Public Sector Organisation]
"We consider that the introduction of a 'reasonable person' test would increase understanding and the predictability of the application of the law, given that the 'reasonable person' is well known to the courts and a concept easily understood by the wider public." [Legal Profession]
In line with comments made earlier in the consultation regarding 'reasonable parenting' and emotional abuse, several respondents again stressed that the definition would need to be unbiased against religious or minority groups, in particular and would also need to protect against different forms of parenting:
"Possibly provided the reasonable person is acceptable to the parents and understands and respects the parents' views and, if appropriate, religion." [Individual]
"Parents know their children best. If a parent behaves towards their child in a way that they believed would cause no harm, and which in fact does not cause any harm, the law must be cautious about criminalising the parent on the basis of a reasonable person's assessment that harm was likely." [Third Sector Organisation]
Vulnerable parents, including those with learning disabilities (where capacity may be an issue), and those living in situations of domestic abuse, would also need to be carefully considered, it was stressed:
"We also query how the "reasonable person" test relates when the person to whom the behaviour applies is particularly vulnerable, such as a parent with learning difficulties, or in a situation where coercion is involved, such as a relationship characterised by domestic abuse." [Public Sector Organisation]
"Whilst we understand the intent behind, and largely support this, it is with a clear need for robust guidance, including thresholds, accountability and dissent and escalation. The risks in developing this model without a clear legislative and accountable framework would see additional risk for vulnerable groups and the potential of inconsistency geographically." [Public Sector Organisation]
Others again stressed the need to consider the complex interplay between neglect, structural inequalities and trauma and suggested that the introduction of a 'reasonable person' test may result in some parents being prosecuted in circumstances where it would not be in the child's best interest.
Overall, some further guidance on how a reasonable person would be defined was seen as necessary, including detail on how cultural differences, learning difficulties and other vulnerabilities would be taken into account.
Among those who did not support the requirement, the main reasons were that:
- the notion of a 'reasonable person' was too subjective;
- the reasonable person test needed to reflect vulnerability of the victim; and
- that it would risk bringing more vulnerable parents into the criminal justice system/leaving them unsupported within that system.
A small number of respondents also stressed that, while they welcomed the introduction of the 'reasonable person' test, thresholds for establishing abuse and neglect would also still need to be clearly evidenced and wilfulness was also still a key consideration:
"The 'reasonable person' requirement would be a key element of the test. It is well established in law and provides an appropriate level of objectivity in the assessment. However, it is still critical that appropriate thresholds are established for the offence. The definitions of neglect and ill-treatment, or whatever other terms are used, must be clear and sufficiently serious to warrant the intervention of the criminal law." [Third Sector Organisation]
Some respondents expressed a preference for professional judgement over a reasonable person test since they felt that the area of child abuse and neglect was complex, and the subtleties and nuances of the offence were unlikely to be well understood by non-professionals or those not au fait with the evidence base:
"As we as professionals start to learn more about the long-term impact of neglect and emotional abuse, including the increased risks to physical and mental health as identified in the ACEs study, and the increased risk of additional vulnerabilities that we see daily in our work, we are aware that public understanding of this area is not likely to be widespread. We are therefore not sure that the 'reasonable person' test would fully cover what we understand to be the risk of harm from neglect and emotional abuse." [Third Sector Organisation]
Another organisation also suggested that the introduction of the reasonable person test could complicate existing professional practice and that they too felt that professionals would be best placed to decide where prosecution was appropriate:
"Professionals require clear thresholds and standards by which they can assess their clients, justify actions taken to keep children safe (including accommodation), and explain how their parenting did not meet the required standard. A 'reasonable person' test is not well-enough defined and could complicate the process." [Public Sector Organisation]
The same respondent suggested that reference to clear standards, for example those in the Adverse Childhood Experiences (ACEs) toolkit, would be more reliable.
Again, it was felt that the focus should be on supporting rather than criminalising families. The reasonable person test may negatively impact vulnerable adults:
"We think the use of 'reasonable person' is problematic. We need to focus on supporting families and children, taking into account any social, cultural and economic challenges or for that matter, additional support needs they may be experiencing. It is the duty of the state to support families and families should not be criminalised if due to a failure of the state, they are unable to access services and/or support." [Third Sector Organisation]
Section 12(3) provides that a person may be convicted of an offence even where actual suffering or injury to health was prevented by the action of another person and in cases where a child has died. Given that there have been no problems with this part of the legislation historically, it was proposed that this element of section 12 remain unchanged. Views were sought on the appropriateness of this position.
Q10. Do you think a provision equivalent to section 12(3) should be included in any revised offence, either in its current form or amended?
Note: There were no respondents who did not provide a closed question response who went on to give a qualitative comment
Nearly three quarters of respondents did not answer the question (73%).
Among those who did, a large majority (78%) agreed that the provision should be retained and the main reason given in support was that prevention of harm should not diminish culpability:
"A person who intended to neglect a child should be convicted of wilful neglect even if actual suffering or injury to health, or the likelihood of such suffering or injury, was avoided due to the action of another person, and the death of that child should not be a bar to conviction." [Individual]
Existing provision was seen to be largely non-problematic but the terminology could, perhaps, be modernised to ensure clarity and include reference to emotional abuse/harm. One respondent suggested amending the term 'obviated' to something more commonly understood, such as 'prevented' and one respondent suggested that this provision could be further explained in guidance relating to the sort of circumstances that it could be applied to. Overall, however, the position of 'no change' was accepted.
Indeed, many who answered 'no' to this question offered similar sentiments (i.e. existing legislation was considered appropriate), and so it seems that they may have misinterpreted the question. That is, they commented that 'no' changes were required and they supported inclusion of the provision in its current form. One organisation suggested that the provision was otiose.