Committing the Offence and Penalties
Two questions were included in the consultation to gather views on who should be capable of committing section 12 offences, specifically in terms of the perpetrator's relationship to the child and the perpetrator's age. One question also explored who should/could be classed as a victim. Views on penalties for the offence were also sought.
Relationship to the Child
Section 27 of the 1937 Act provides that "any person to whose charge a child or young person is committed by any person who has parental responsibilities in relation to him shall be presumed to have charge of the child or young person" and "any other person having actual possession or control of a child or young person shall be presumed to have the care of him". As such, it includes people temporarily responsible for looking after children, (such as babysitters), as well as professionals with temporary "charge or care". There is, however, some concern that it could potentially exclude a non-resident partner of a parent who was not left in sole charge of a child and who does not have parental responsibilities.
Q12. Who should be capable of committing the offence?
There were 57 responses to this question. Comments mainly focused on broadening of the criteria to include anyone with the care of children, not only people who hold parental rights and responsibilities, including wider family members, professionals and anyone left to care for or in charge of a child:
"We think the offence should be extended to include anyone who is caring for a child, sharing care of a child, in a position of trust or in loco parentis. This should apply regardless of the degree of responsibility the adult has. All adults have a responsibility to protect children and if a child is harmed by acts of commission or omission by a person with capacity to care for them then that person may have committed an offence. This should include professional staff such as teachers, social workers and police." [Public Sector Organisation]
A large number of respondents also commented that they felt the offence should apply to 'any' or 'all' adults more generally.
Some caveated their views that adults should only be held accountable if they had capacity to have been left in charge of a child, and some commented that specific relationships in individual cases would need to be carefully considered:
"However, we believe that the individual relationship should be taken into account (e.g. siblings) as it is vital that individual circumstances are considered..." [Third Sector Organisation]
"A possible exception would be in the case of parents who are children themselves. Young parents who are still developing themselves and qualify as children shouldn't necessarily be punished the same way as adults." [Public Sector Organisation]
Several comments were also made that 'care', 'caring responsibilities' or 'caring roles' would need to be carefully and clearly defined (and made clear to the public):
"We think that the offence should be extended to people who are in a caring role in respect of the child at the time of the offence occurring - and that the detail of the 'caring role' should be fully defined." [Public Sector Organisation]
"Clear guidance around what constitutes care and control is required. E.g. should a friend or older sibling who agrees to 'keep an eye on the children' while the parent goes for a bath, makes dinner, etc. be considered to have care and control of the child? We believe that the implications of providing clarity around this should be communicated widely to the general public to be clear regarding the responsibilities of being around children." [Public Sector Organisation]
Some agreed that only minor change was needed to the definition, to close the identified loophole regarding non-resident partners or parents, and this was seen as particularly important in domestic abuse cases.
A small number of respondents indicated that they felt that the legislation should remain as it was, primarily because it was felt that other parties would be dealt with by existing and alternative criminal law. The other reasons given were that:
- the Act was designed to replicate common law which was limited to those with pre-existing duties to the child (and others would be covered under the criminal law of assault);
- basing the change on the one type of individual identified i.e. non-resident partner of a parent, seemed like insufficient justification for change (and, again, these people may be captured under other legislation/criminal law); and
- extending the definition too far would unnecessarily make too many people subject to legislation which was primarily and correctly designed for those with specific duties.
"It is designed to apply to this narrow range of people, as they have particular responsibilities to the child, and it is the neglect of these responsibilities which constitutes an offence. Whilst we see the benefit of ensuring the inclusion of non-resident partners who are jointly responsible for the care of a child within this narrow range, care should be taken not to unintentionally extend this range beyond its intended scope." [Academia]
Age of the Perpetrator
Existing legislation specifies that the offence can only be committed by a person aged 16 or over. The Scottish Government sought views on whether the age of the perpetrator should be removed from the definition in legislation to allow discretion to be applied by the Procurator Fiscal in bringing cases forward.
Q13. Do you think the legislation should set out the age of a perpetrator? If yes, what should the age limit be?
Note: Seven respondents (3%) who did not provide a closed question response gave a qualitative comment
A large proportion of respondents did not answer this question (73%). Among those who did, there was an equal split in opinion as to whether the legislation should set out the age of a perpetrator.
For those who felt the age should be set out, the suggested minimum age ranged from the age of criminal responsibility or capacity in Scotland (age 8) up to 18 and above. The small number who suggested the lower age of 8 did so on the basis that the legal age of responsibility was already established in Scots Law and one respondent who suggested age 12 did so because they perceived that, by the age of 12, reasonable people are clear on the impact that they can have on others in a criminal sense.
Roughly half who agreed that an age should be specified felt that the current age of 16 was appropriate but some caveated this view that it was essential that other measures remained in place to respond to equivalent acts of harm, abuse or neglect committed by those under 16 (e.g. CIVIL HEARINGS or Children's Hearings):
"The current age limit of 16 years would seem appropriate in relation to responsibility. If absolutely necessary there are other legal options for prosecution of and other constructive responses to young people involved in harmful or potentially harmful behaviours." [Public Sector Organisation]
For those who felt that an older age should be specified, this was typically because they felt that those under 18 may be in need of additional support themselves and that a rehabilitative response may be more appropriate for responding to acts of abuse or neglect committed by this age group:
"A child (under-18) who has parental responsibility can be neglectful. Their neglect could reach a criminal threshold but as a child they still require support themselves. Legislation should not necessarily criminalise them if parenting support is preferable after an assessment of parent and child's needs. The wider good is not served by charging a 15-, 16- or 17- year-old with neglect when they are vulnerable themselves. Therefore, the threshold should be 18 years of age below which a child cannot be charged with neglect." [Public Sector Organisation]
Indeed, one of the main concerns among respondents who felt that the specified age should remain, and be either 16 or 18, was the need to avoid criminalising young people unnecessarily, especially those such as siblings left in charge of younger peers, etc. Removing the age specification may make this less clear, it was felt, and leave some young carers more vulnerable to prosecution:
"We would be concerned about the example of an incident between a sibling babysitting a younger sibling and the possibility of a criminal charge accruing from that. We are particularly concerned about the possibility of children who are young carers, through no fault of their own, becoming the focus of a criminal charge…To avoid this we would want the relationship between child and perpetrator to be robust and clear in respect of liability." [Public Sector Organisation]
Other reasons given for supporting an age limit of 18 included that:
- the age limit of 18 was consistent with the Children and Young People (Scotland) Act 2014;
- it was important to align the age of the perpetrator with the age of the victim ("to avoid situations of a younger young person being held criminally responsible for the neglect of an older young person they have been charged with care of" [Academia]); and
- it was difficult to envisage any circumstance in which it would be helpful to prosecute a young person, rather than supporting them.
Finally, one respondent stressed that the legislation needed to take into account parents' responsibility to ensure that their child is not placed at risk by who they allow to have sole care and responsibility and another expressed a view that children aged 14 or younger should not be placed in a position of such responsibility or charge of care. Others made more general comments that the age specification should remain since they would feel uncomfortable with charges relying on the discretion of the Procurator Fiscal (although this was mentioned by only a few respondents):
"We suggest that a higher risk of wrongful prosecution of (potentially vulnerable) young people would occur if there is no age limit specified in law and that decisions are left to local PFs." [Third Sector Organisation]
Among those who felt that the age should not be specified, the main reasons given were that anyone should be held responsible, subject to the specific context being considered, that in some cases in may be more appropriate to charge the parents of the perpetrator instead (e.g. if older siblings are left in charge of younger siblings who come to harm), and that level of maturity may be a better indicator than chronological age.
Two organisations stressed that the relationship between the perpetrator and the victim was of more importance in considering liability than age:
"…the age of the perpetrator does not need to be determined in statute. Instead there should be a strong definition of nature of the relationship which requires to be in place between the child and the alleged perpetrator at the time of the offence. This will mean that parents under the age of 16 could be responsible for the offence." [Public Sector Organisation]
Another third sector youth organisation commented that there should not be a definitive age, as this black and white approach would not allow for a full and proper consideration of the specific circumstances of each individual case.
Again, some respondents who felt the age should be removed also did so on the basis that they did not wish children to be unnecessarily criminalised:
"We would also like to see safeguards to avoid the unintended consequence of potentially prosecuting a young person who has been left to look after their younger siblings or other children in the absence of a parent and where the young person does not have the understanding or capability to provide safe care for the younger children." [Public Sector Organisation]
One respondent specifically stated that, while in principle they did not agree with criminalising children, they broadly agreed with the Scottish Government's proposal that the age limit should not be defined to allow for discretion when required and others commented more generally that removing the age would allow Procurators Fiscal flexibility to make the best decisions in individual cases, based on whether it was in the public interest to prosecute. One legal organisation commented that no change was needed as there was no evidence to suggest that COPFS were not already exercising their discretion appropriately.
Given the wide mix of views expressed in response to this question, it was difficult to infer any dominant theme, except, perhaps, that most respondents wanted to avoid unnecessary criminalisation in cases where young carers may have been left in positions of responsibility that were beyond their capacity.
Age of the Victim
The current offence can be committed in relation to any "child" or young person under the age of 16 years but, as part of the consultation, views were sought on whether this be changed so that the offence should apply to a child or young person up to the age of 18 (i.e. if any child or young person under the age of 18 could be considered a victim of the offence).
Q14. Do you think that a child should be defined as aged 18 or younger in relation to the offence? Please explain your answer.
Note: Thirteen respondents (6%) who did not provide a closed question response gave a qualitative comment
Again, a large proportion (72%) of respondents did not answer this question. Among those who did, two thirds agreed that a child should be defined as aged 18 or younger in relation to the offence, and one third did not.
Reasons given in support of increasing the age included that this would be consistent with other legislation regarding children, that the definition would accord with the UN Convention on the Rights of the Child (UNCRC) and that all those under 18 might be considered 'vulnerable' and so in need of legislative protection. Some aged 16-18 (and even older) may still be in school, and so were likely to be under the care/control of others (potentially leaving them vulnerable).
Two organisations that agreed in principle to raising the age to 18 suggested that this may be difficult to implement in practice, not least given the age limitations currently on the jurisdiction of the Children's Hearings system. Further thought by the Scottish Government may be needed, it was suggested, on how support and protection would be offered in real terms, and by whom, for those aged 16 to 18.
Similarly, one other organisation expressed a view that this change would fundamentally alter the nature of the offence, or at least its congruence with other law and, although this respondent was generally supportive of raising the age, it would need to be carefully handled to ensure it was still congruent with other legislation. Addressing the more widespread inconsistencies was, however, seen as beyond the scope of this consultation.
Some also expressed concerns that individual circumstances may need to be taken into account for 'older' children (e.g. those aged 17) where their activity may be outwith the control of the parents but where parents may still be considered to be neglectful if the legislation was changed (e.g. should the parent of a 17-year-old who intentionally takes illicit drugs in the knowledge of the parents be considered as neglectful?) Similarly, more thought would be needed as to whether younger siblings or carers could be held accountable for neglecting children older than themselves, e.g. could a 16-year-old be prosecuted for neglecting a 17-year-old? Although such anomalies and challenges may occur, one respondent stressed that they thought the number of such cases was likely to be small. Another organisation that believed the legislation should be for persons 17 years and under also recognised that some of the provisions may be more relevant to younger children.
Other considerations raised included:
- whether a young person's view on whether or not they perceive the experience as harmful would be taken into account;
- if left at 16, would guidance be put in place to deal with children over 16 who have other factors that may increase their vulnerability;
- if/how increasing the age would ensure greater protection for children transitioning between children and adult services; and
- if the change would mean that it would be possible for the offence to be committed by a spouse, in cases where children aged 16 were married.
One organisation suggested that the age of protection should be raised to 21 for care experienced young people, recognising their uniquely vulnerable experiences.
Reasons given for not changing the age included that age 16 seemed to work well in current practice and was the age at which responsibilities of adults are conferred on children in Scotland (including ability to marry and to hold parental responsibilities and rights) and that children of this age were able to know right from wrong and be sufficiently mature.
Another concern was that changing the age would fundamentally alter the legislation (similar to views expressed above), since it would no longer relate only to those people (i.e. children) who are under the scope of special duties of care (which is presently 16). It should therefore remain unchanged, it was felt:
"…we need to ask, not when a child becomes an adult, but when a child no longer comes within the scope of special duties of care. And that age is, at present, 16. Most parental responsibilities and parental rights (and all the crucial and substantive ones) come to an end when the child reaches 16 and so all the pre-existing duties of care end then…If the age of the victim is raised to 18 then the whole nature of the offence in s. 12 changes from one of neglect of existing duties, to causing harm to persons under 18." [Individual]
The same respondent perceived that the proposed change would also make the issue of relationship between perpetrator and victim irrelevant and they felt that the possible rationale for such a fundamental change to the legislation had not been sufficiently justified in the consultation. As such, they suggested that the legislation should remain unchanged.
One organisation also stressed that the law should remain unchanged on the basis that the change was too fundamental and had wide-reaching implications for other areas of the law. The law regarding the age of a child would need to be completely reviewed in a more holistic approach, they suggested.
One respondent also suggested that those aged over 16 may be old enough to take preventative and abortive actions against neglect which may mean that they should be considered potential 'victims' (e.g. being able to source food, shelter, safety for themselves, etc.). Two others said that they felt the age should be 16 but apply to those under 18 who have significant care needs or are at increased risk of harm, as they may be functioning at a level below their chronological age:
"15, 16 or 17 is arbitrary and it may be only in teenage years the neglect could come to light. Trying to legislate for every possible set of circumstances is near impossible. Therefore, childhood should be assessed on a case-by-case basis." [Public Sector Organisation]
Overall, among both those who agreed and disagreed with this proposal, there were views that the definition needed to be cross-referenced/consistent with other legislation to avoid any ambiguity and to aid the work of professionals and practitioners working in this field:
"…having varying definitions of what constitutes a child in Scotland causes confusion and tensions amongst practitioners and eligibility to access services can be impacted upon where legislation and policy/guidance contradict one another. It would be extremely beneficial to have one definition of a child to work from." [Public Sector Organisation]
The current penalty for the offence on indictment is an unlimited fine and/or a maximum term of 10 years imprisonment. On summary conviction, a person is liable to a fine not exceeding the prescribed sum (£10,000) and/or 12 months' imprisonment. The consultation welcomed stakeholders' views on whether the current penalties should be revised.
Q15. Do you think the current penalties for a section 12 offence should be amended? If yes, what do you believe the appropriate penalties would be?
Note: Nine respondents (4%) who did not provide a closed question response gave a qualitative comment
Again, a large proportion of respondents did not answer the question (76%).
Among those who provided a substantive response, just over half (57%) agreed that the penalties should be amended and just under half did not (43%).
Most of the individuals who indicated that the penalties should be amended expressed a desire to see them increased or made harsher as they perceived current penalties were too lenient, especially for serious offences. Views included that prison was more appropriate than financial penalties since the severity of this measure was more proportionate to the severity of the likely impacts of abuse or neglect on children:
"Neglect should have penalties equivalent to a serious offence because of the serious, debilitating and life-long impacts on the children who suffer them. As it stands, the maximum sentence is not enough for cases where children suffer permanent injuries, including brain damage, and/or the lifetime of psychological suffering that results from serious neglect." [Public Sector Organisation]
One respondent suggested that higher fines could be introduced which could be diverted to the child (victim) to support restoration/rehabilitation. Another suggested that, although tougher penalties would not lessen the impact on victims, they may provide victims with a sense of justice and help them to 'move on'.
Others (especially organisations) wanted to see a wider range of community disposals considered, especially for lower level offences. Concerns were voiced that vulnerable families, in particular, may benefit from staged interventions which could address the root causes of harm and prevent future offending. Financial penalties and imprisonment may not be in the best interests of some children living in vulnerable families, it was stressed:
"…further consideration needs to be given to the impact of large financial fines on families already living in poverty, as well as the loss of income by incarcerating a parent who was the main breadwinner." [Public Sector Organisation]
"In general terms, we believe that penalties should be proportionate in relation to the offence, however acknowledge that imposing a fine may have the unintended consequence of adversely impacting on the child. We would therefore suggest that a suite of penalties is introduced, for example court enforced attendance of parenting classes; community payback orders and custodial sentences when the severity of the offence merits it." [Public Sector Organisation]
Indeed, for the most vulnerable families, restorative, educative and rehabilitative responses were seen by some as being more appropriate than criminal responses and could, in some cases, be in the better interests of the child, i.e. avoiding secondary harmful effects for children and helping to prevent re-occurrence of neglect.
Some who supported a review of penalties simply commented that they would like to see a range of disposals available which could be used flexibly to address the circumstances of individual cases:
"Courts require sufficient flexibility to ensure any penalties fully reflect the range of potential seriousness of offences and issues of intentionality and culpability, etc." [Public Sector Organisation]
For those who indicated that the penalties need not be revised, the main reasons given were that the current maxima seemed appropriate for most cases, and that there was already sufficient flexibility to accommodate variances in the degree of seriousness of the crime (although one respondent expressed a view that, in the most serious cases, the penalties for murder might seem appropriate).
Other more general comments (made by just one respondent each) included that:
- consideration needed to be given to a child's understanding of the punishment for the adult;
- court decision making should always be informed by a Criminal Justice Social Work Court Report as this would include relevant contextual, aggravating or mitigating factors which courts need to consider;
- the person convicted should be prevented from having more children, from adopting or fostering children, and as far as possible from working with or having contact with children for a defined period, if not forever; and
- there should be due assessment of the person and circumstances to assist judicial discretion.
One organisation also sought clarity around the requirement to disclose the acceptance or establishment in the Children's Hearings System of a (b) ground for referral in respect of a Disclosure Scotland application or Protection of Vulnerable Groups (PVG) check.
Overall, across responses, there was a strong feeling that any penalties needed to be flexible and proportionate, reflecting the severity of the case at hand while also supporting vulnerable families.