Mental State of the Perpetrator
Historically, there is evidence that the terms "wilfully" in the phrase "wilfully ill-treats, neglects, abandons or exposes…" has caused problems in the courts. Specifically, there has been ambiguity around whether the offence just requires that the act of neglect or ill-treatment is committed "wilfully", or whether the accused must also have been "wilful" about likelihood of their action causing unnecessary suffering or injury to the child. The question has been whether a person commits an offence if they committed the act of neglect or ill-treatment intentionally, even if they were unaware that those actions could cause the child any harm. The mental state, or mens rea, is an essential ingredient in most offences.
Wilful and Deliberate Actions
At present, in Scotland, for an offence to be committed under section 12, it must be proved that the accused's acts or omissions were committed "wilfully" (i.e. intentionally, rather than by accident or inadvertently). It is not necessary, in Scots law, to show that any harm caused as a consequence of the act was also intentional. As a result, a person could potentially be prosecuted in Scotland for wilfully neglecting a child in circumstances where they were unaware that their actions were likely to cause any harm.
In the consultation, the Scottish Government proposed to reaffirm the existing test of intent which already applies in Scotland, outlined above. They also proposed to introduce a requirement that a "reasonable person" would consider the ill-treatment or neglect to be likely to cause the child physical or psychological harm (see 'Risk of Harm' above). This will clarify that the likely consequences of the neglect or ill-treatment are assessed objectively.
Q11a. Do you think that the offence should apply wherever a person wilfully and deliberately acted or neglected to act in a way which caused harm or risk of harm, regardless of whether they intended the resulting harm/risk?
Note: Thirteen respondents (6%) who did not provide a closed question response gave a qualitative comment
Seventy per cent of all respondents did not answer this question. Among those who did, most (74%) supported the proposal and 26% did not.
The main reason given in support was that this would add clarity and reinforce what was already established practice although a clear definition of wilful activity would be needed, it was felt:
"…it would be helpful if statute could further clarify the mens rea requirement to put the matter beyond argument or doubt." [Public Sector Organisation]
Including and clarifying the reasonable person test would also mean that minor acts of indiscretion or accidental injury would not wrongly end up in court, it was felt (although one respondent questioned how effective the test was):
"In general, with a reasonable person test of the risk of harm, it should be sufficient for the mens rea to attach to the behaviour and not its consequences. However, the law must tread carefully where harm was neither intended nor occurred." [Third Sector Organisation]
Other comments included that a requirement to intend to do actual harm may create a loophole which would not be in the best interests of children or victims and that a need to prove intent may also exclude cases which were cumulative over time, i.e. repeated acts of wilful behaviour which over time result in neglect.
Two respondents commented that they perceived that if the intent to harm was a requirement of an offence then such acts would constitute physical or emotional abuse rather than neglect and one other commented that the proposed approach was consistent with the wider intervention ethos, i.e. harm need not have occurred for intervention (criminal justice or otherwise) to still be relevant.
Several respondents commented that it was important that capacity of the perpetrator was always taken into account, to protect the most vulnerable, i.e. it should only apply if it can be proven that the person has the capacity to understand. Some flexibility for atypical cases should also be built in, one suggested:
"We believe that the concept of wilfulness should continue to be a major consideration in determining level of intent and criminality. However, there will inevitably be exceptions which, we feel, should be responded to with additional provision of support and guidance. National guidance on this matter would be welcome." [Public Sector Organisation]
Similarly, several respondents commented that, while they supported the proposed change, it was also important that some discretion remained in cases where it could clearly be evidenced that parents had not deliberately set out to harm their children:
"We know that the majority of parents do not deliberately set out to harm their children, especially when circumstances are neglectful. The parents own lived experiences and level of understanding needs to be taken into consideration along with their ability to act on advice and guidance provided." [Public Sector Organisation]
Again, safeguarding and mitigating against risk were highlighted by some as key considerations to avoid cases reaching the stage of criminal prosecution and some comments in support of the proposal focused on how it would be important to always ensure that the child's bests interests were upheld.
Among those who answered 'no' to this question, the main reason given against the proposal was that intention to cause harm should be evident. One respondent stressed that they felt the offence should only apply in the case of advertent recklessness:
"The offence should apply only to those who intend to cause harm to a child by their action or inaction, or who are subjectively reckless as to whether harm is caused - that is, the recklessness must be advertent. Advertent recklessness occurs where the accused is aware of a risk of harm, but nevertheless takes that risk by failing to act in circumstances in which a reasonable person would have acted to avoid it. Inadvertent recklessness applies where the accused fails to act to avoid a risk which a reasonable person would have recognised, even though the accused may not even have considered the possibility of there being such a risk." [Individual]
One response from the legal profession highlighted that they felt it was more appropriate that a more subjective test be introduced (as set out in the consultation document, whereby the court must be satisfied that the accused must have intended to cause harm, or been reckless as to whether such harm was caused):
"We would understand that option as requiring proof of three elements: proof of the act or omission; satisfaction of the 'reasonable person' test that such act or omission would objectively cause harm; and either an intent to cause harm or recklessness as to whether harm was caused…In our opinion that is because proof of intent or recklessness can often reasonably be inferred from the proven acts or omissions of the accused and from the overall circumstances disclosed in the evidence of any given case." [Legal Profession]
This organisation noted that, while the consultation favoured a 'lower test', this would potentially leave the legislation open to failure.
Another view put forward by several respondents was that the law needed to protect parents with serious mental health problems or learning disabilities where accidental/inadvertent actions may occur, which fall within criminal thresholds:
"We are therefore concerned that these parents might be criminalised and might be in danger of losing their children not because they have intentionally abused or neglected their children but because they haven't been able to access the right support to enable them to parent their children and effectively meet the needs of their children." [Legal Profession]
Indeed, there was some strong reservation with regard to this proposal from some, and views that this proposal required significantly more consideration before being implemented, with due regard given to wider structural influences on behaviour. In particular, it was felt that some vulnerable adults may face prosecution for failing to take reasonable steps to protect their children against a backdrop of not being able to access the services that they needed:
"[Organisation] is particularly concerned that the proposal to clearly define in law an objective test of liability for neglect, without regard to the mens rea of the offence is at odds with the Scottish Government's broader understanding of the relationship between structural inequalities; the potential lifelong impact of unresolved childhood adversity and trauma; and neglect…." [Third Sector Organisation]
Comments were made that the proposals could result in increasing prosecutions of parents who are trying their best to look after their children in the face of structural inequalities and while struggling with their own unaddressed experiences of childhood adversity. Several organisations, in particular, suggested that this part of the proposed legislative change be given much more consideration.
Intention to Cause Harm
Q11b. If not, do you think the offence should only apply to those who:
- intend to cause harm to a child by their action or inaction?
- intend or are reckless as to whether harm is caused?
Those who did not agree were asked who they felt the offence should apply to. While only 17 people provided a negative response to the preceding question, 23 answered the follow-up question. Of these, there was an even split between those who felt it should only apply to those who intend to cause harm to a child by their action or inaction (n=11, 48%) and those who felt it should only apply to those who intend or are reckless as to whether harm is caused (n=12; 52%).
Among those who felt that the offence should only apply to those who intend to cause harm to a child by their action or inaction, there was only one further comment given:
"The point here should be the specifics of the case and the court/judge/jury - given the freedom to do their job and assess the situation/case on its facts. Creating a one or the other definition - results in limitation of the scope of the testing of the case. The requirement of 'reasonable' behaviour is required." [Individual]
Among those who felt that the offence should only apply to those who intend or are reckless as to whether harm is caused, specific comments included that intention to cause harm infers a reasonable responsible attitude and that the effect on the child/young person in question should be the key element of the offence, rather than a person's specific action or actions; or their failure to act; not whether the harm caused was intentional.
Three respondents who did not answer the closed component of this question went on to provide further relevant comments, including that:
- in situations where there is inaction, there needs to be further exploration regarding the situation of the parents (to explore, for example, if learning disabilities or mental health issues have been contributing factors);
- that further considerations are necessary where harm is not intended; and
- it may be sensible to consider recklessness in establishing an offence where it refers to a parent or carer who foresees the risk of harm of particular actions (or inaction), yet acts unreasonably regardless of the risk (again, ensuring that criminalisation of vulnerable groups is avoided).
Finally, one respondent commented that they felt it was important to engage families directly in determining intent:
"We support the idea of considering the support offered to families in determining recklessness and intent. The assessments of practitioners working alongside families to support changes in behaviour are a valuable source of information about a parent/carer's capacity to understand the need for change, their ability to make the changes required, and their motivation to do so." [Academia]