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
Impact of Domestic Abuse and Vulnerable Parents

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Impact of Domestic Abuse and Vulnerable Parents

The consultation highlighted the devastating and long-term impact of domestic abuse on children. This includes harm to children as direct victims as well as the harm caused by living in an environment where domestic abuse is taking place, i.e. directly witnessing the abuse or indirectly where a child is impacted by the effect it has on their parent.

Impact of Domestic Abuse

Views were sought on what steps, if any, could be taken to avoid criminalising parents/carers who have been victims of domestic abuse themselves, and have committed a section 12 offence as a consequence of this domestic abuse.

Q16. What steps, if any, could be taken to avoid criminalising parents/carers who have been victims of domestic abuse themselves, and have committed a section 12 offence as a consequence of this domestic abuse?

This question was open-ended in nature and attracted 55 substantive responses - 22 from individuals and 33 from organisations. Several respondents interpreted the question quite broadly and offered more general observations on whether they felt it was appropriate to penalise victims of domestic abuse.

One of the dominant themes to emerge (from both individuals and organisations) was that evidence gathering in such cases needed to be detailed and robust and take into account the specific circumstances of the abuse and any control being exerted by one adult over another, and which may have influenced the victim's behaviour toward the child. Offending history of the victim who perpetrates against the child should also be considered, it was suggested.

Some suggested that they would like to see greater social work involvement in such cases, earlier intervention and, when a case is investigated, all victims being identified and supported. Indeed, several again commented that parent victims may need to be supported, rather than criminalised:

"Each of us [is] responsible for our own actions but this should not be incompatible with the recognition that some people need help and support rather than simply punishment." [Individual]

This was not a unanimous view, however, and several individuals in particular felt that being a victim of domestic abuse should not be a defence to a criminal charge under section 12 unless there were clear extenuating circumstances, including coercion or impeded capacity:

"Context is important. If the person who has been a victim of domestic abuse has taken adequate steps to engage with services for protection of themselves and their children then I do not think they should be criminalised. Where they have not, this suggests to me a lack of capacity to prioritise their child's needs. Whilst this is understandable, it is not good enough to prevent harm to the child/ren, nor to prevent the cycle repeating." [Individual]

"…establishing a causal link between domestic abuse and the subsequent abusive behaviour of a victim of domestic abuse is very difficult. Whilst the experience of domestic abuse can be pervasive and have unseen consequences the safety and security of a child remains the responsibility of the adults who have the care of them, in whatever context that care occurs…Domestic abuse could, therefore, be seen as a mitigating factor - but not one which automatically and in isolation would absolve someone of any responsibility for abusive behaviours." [Public Sector Organisation]

Indeed, ten individuals and four organisations put forward views to suggest that domestic abuse in itself did not legitimise subsequent abuse of a child by the victim, and one individual expressed that this was a decision best left to the courts who had access to all available facts.

One respondent highlighted what they believed to be the difference between cases where the victim felt unable to protect the child and cases where they had failed in their duty of care for other reasons:

"If the child is harmed as a consequence of that parental abuse (e.g. withholding money, controlling movement and contact etc.) then I believe that the abused parent should not be held accountable for that as they are not fully in control of their actions. In these cases, protection and support should be given to the abused party. If the harm comes as a result of the abused parent "passing on" their own abuse to a child then, whilst I can sympathise with them in their position, this is not an excuse: assuming that they have had opportunity to leave or report the abusive relationship then they are in control of their actions and should be prosecuted." [Individual]

Similar views were expressed by organisations; however, among this group there was greater focus on the need for legislation to recognise victims of domestic abuse as victims and to take their trauma into consideration. Supporting adult victims of domestic abuse to help break the cycle of abuse or offending was emphasised, especially when their behaviour may not have been intentional or carried out under duress:

"It is wholly unacceptable that victims of domestic abuse who have committed a section 12 offence as a consequence of this domestic abuse should be criminalised. This could certainly be avoided, and the responsibility recognised where it belongs, if the law were changed to involve consideration of intent to harm the child, and recklessness. Even if this change is not made, Procurator Fiscals must take the content of domestic abuse into account in their consideration of the public interests of pursuing prosecutions." [Academia]

Diversion from prosecution, family therapy and parenting classes were again all suggested as possible supports for victims in this case. One organisation also noted what they perceived to be a deficit in the current system that allowed access to suitable educative programmes for perpetrators only after an offence had been proven:

"There is a clear deficit in current arrangements in that perpetrators can usually only access programmes to counter incidences of domestic abuse once they have been convicted of such an offence. We would welcome the introduction of relationship programmes and anger management for perpetrators prior to conviction which would help support a reduction in domestic abuse." [Public Sector Organisation]

Several commented that it would be most appropriate for all cases to be handled on their individual merit, and that it was difficult to put in place a 'standard' response to domestic abuse cases:

"We think that it is important for professionals to be very clear about their assessment of situations and that it is important for them to be very clear about where responsibility for concerning behaviour and responsibility for addressing that behaviour, lies, on a case by case basis." [Public Sector Organisation]

There was agreement, however, that where a non-criminal route was pursued, this should only be for cases where to do so would not place the child at further risk:

"The decision not to prosecute where it is not in the public interest should not prevent or discourage other agencies (SCRA, Social Work, etc.) from taking appropriate action to protect the child - the child should be kept at the centre at all times." [Public Sector Organisation]

Two organisations indicated that they considered that it would be worth exploring the possibility of creating a statutory defence in such circumstances. Others commented that they welcomed that this issue may also be addressed by the new Domestic Abuse Act and one organisation indicated that they would welcome "further in-depth consideration and discussion around how a 'subjective recklessness' approach may help to ensure that vulnerable parents, including parents who are victims of domestic abuse, are not unfairly prosecuted."

In contrast, some organisations noted that they felt it would be impossible to frame such a partial or complete defence in this piece of legislation but that this may be covered more appropriately under other offences.

Indeed, some strong views were put forward that there was a need for more focused attention on this issue as a specific concern. Several organisations considered that the current consultation was not the correct vehicle or engagement medium for such a potentially wide ranging, difficult, and sensitive topic to be discussed.

"…the 1937 Act or any replacement is not the appropriate place to address this. Domestic abuse is recognised as distinct from other forms of child abuse. The harm done by perpetrators of domestic abuse is best addressed in a context in which the focus is on the behaviour of the perpetrator. Addressing this through a different context, even within the same proceedings, risks moving the focus away from the particular nature of domestic abuse. It also moves the focus away from the fact that the non-abusing parent is also a victim of the abuse and we remain concerned that, historically, the 1937 Act has been used to prosecute parents who were experiencing domestic abuse." [Third Sector Organisation]

"While the offence in the Domestic Abuse (Scotland) Act 2018 admirably creates new protection for women, and partially reflects the harm done to children by a sentencing aggravator it does not make provision for offences targeted specifically at children… There is a risk that dealing with the impact of domestic abuse on children in child protection legislation completely separates out women's and children's interlinked experiences and will perpetuate the focus within the law being solely on the adult victim." [Third Sector Organisation]

Consequently, several organisations recommended further consultation with relevant stakeholders on this point, including Scottish Women's Aid, among others.

One individual and one organisation indicated that they felt it would be more appropriate to charge the perpetrators of domestic abuse with section offences where either their own or the victim's behaviour negatively impacted on the child (and where the abusive or harmful behaviour was a direct consequence of a parent being a victim of domestic abuse). This may be a deterrent but may also overcome challenges faced by the police with victims not wishing to report abuse carried out against the child for fear of personal repercussions:

"Victims of domestic abuse must not be considered to have committed a section 12 offence as a result of the controls put upon them by the abusing partner. The abusing partner could and should be charged with both coercive control and a section 12 offence." [Third Sector Organisation]

Another third sector organisation suggested that it may also be helpful to have a multi-agency response as standard, in cases where child neglect is considered to be presenting a significant risk of harm, in order that concerns about domestic abuse are considered at the very earliest stages of a response. The same organisation, as well as others, strongly supported the 'Safer Together' approach to domestic abuse, where children are involved, being embedded across social work and police practice in Scotland. Other approaches that could be considered included Signs of Safety and the Caledonian system and wider use of the ACEs toolkit to help protect vulnerable adults and children.

Organisations recognised that there would be difficulties in implementing this change in practice and there were some concerns about how the change may impact on the Children's Hearing System, in particular.

Organisations also focused more on the need for investment in training and awareness raising to improve understanding amongst all agencies and professionals (including legal professionals and the judiciary) on the impact of domestic abuse, including the emotional and psychological harm to victims, the concept of coercive control and the potential impact on victims' parenting. One respondent suggested that professionals should also be trained to be 'trauma aware' in line with the National Trauma Framework.

Others (both individuals and organisations) called for more widespread public awareness raising on the issue of domestic abuse, including media campaigns, as well as parenting classes for parents at risk of offending:

"Continuing to increase awareness of domestic abuse and its impact on children remains important. Particularly in relation to more hidden forms of domestic abuse such as coercive control." [Public Sector Organisation]

Overall, responses to this question supported specific reference in the legislation to domestic abuse and its impact on children, and on the parenting capacity of the victim. The overall intention to ensure legislation captures emotional abuse was also seen as making it easier to prosecute this abuse including where it occurs against a background of domestic violence.

Q17. Are there additional ways in which we can assist courts to be aware of the full context of abuse within a domestic abuse setting, affecting both partners and children?

The consultation also sought views on additional ways in which courts could be assisted to be aware of abuse within a domestic abuse setting, affecting both partners and children. There were 44 substantive responses to the question - 13 from individuals and 31 from organisations. Again, some responses did not directly answer the question and commented more generally on the need for greater understanding per se of the impacts on children of living with domestic abuse.

Specific suggestions included:

  • multi-agency training for all professionals, including, but not limited to the judiciary (including training on coercive control). Training and professional development should be ongoing/continuous, it was felt[4];
  • creation of specialist family courts or development of a cadre of prosecutors who specialise in domestic abuse to deal with incidents of this nature;
  • specialist assessments/social work reports for the court to help inform decision making (including, for example, a retrospective review of the lifestyle of the child/perpetrator to give the courts a better understanding of the environment in which the neglect took place, as well as the mind-set and background of the perpetrator). Victim impact statements could also be included, it was suggested, as well as reports from professionals/experts working in the field (for example, Woman's Aid);
  • appointment/availability of independent advocacy support to speak on behalf of families (including independent children's advocates/children's rights workers being introduced when such cases are going to court to help children's voices be heard);
  • ensuring that the child's experience and voice in relation to the alleged offender/offence is integrated within relevant reports;
  • talking to survivors to understand the impact domestic abuse has had on their lives, including children; and
  • the development of evidence-based guidance for those working in the courts (with guidance possibly being more accessible for members of the judiciary, instead of attending training, it was suggested).

Although multi-agency training was again stressed as being important, perceived barriers included availability/willingness of the judiciary to attend or take part, and costs of providing relevant training (which would need to be endorsed/promoted by the Scottish Government, it was suggested):

"Increased understanding across all partners of the long and short-term impact…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]

Again, alternatives to prosecution were seen as preferential among some respondents and encouraging courts to be aware of these was seen as important:

"All legal professionals should be made aware of the effects of poverty. Poverty and parents' own Adverse Childhood Experiences (circumstances), should be considered against criminal neglect charges. When parents replicate the poor parenting they experienced, including domestic abuse behaviour, they can be helped by experienced professionals to recognise what they went through, what the negative behaviour is and how they can be helped. This can be done while still managing the harm and risk towards the child. Courts should be made aware that engaging in such work will often be more productive than pursuing criminal charges against parents." [Public Sector Organisation]

Others commented that courts/legal professionals may already be sufficiently aware.

Finally, one organisation expressed a view that changing the legislation to try and more effectively cover emotional abuse of children and make it easier to prosecute this kind of abuse, (including where it occurs against a background of domestic abuse), was not the best means of tackling domestic abuse and its impacts:

"[This] will continue to undermine recognition of the distinct nature of domestic abuse as an offence against children, as opposed to other forms of child abuse. An offence of domestic abuse which sits within child protection legislation and identifies domestic abuse of children generally as emotional abuse, will not sufficiently fulfil the core purpose of creating awareness of the impact of domestic abuse on children, nor highlighting that children are equally victims of domestic abuse…We maintain that there should continue to be a focus on recognising a specific offence of domestic abuse on children to address this particular issue." [Third Sector Organisation]

Vulnerable Parents

The consultation noted the concern of some that widening the offence may risk an increase in prosecutions against vulnerable parents, including parents with learning disabilities, which was not the intention. It also acknowledged that the decision as to whether to prosecute is for the Procurator Fiscal. Prosecutions will only be pursued where there is a public interest in doing so, in line with the COPFS' Prosecution Code. Views were sought on what further steps, if any, could be taken to ensure that in changing section 12, vulnerable parents were not unfairly criminalised.

Q18. What further steps could be taken to ensure vulnerable parents are not unfairly criminalised?

A total of 56 substantive comments were received - 21 from individuals and 35 from organisations. Most of the comments received echoed comments made in response to earlier consultation questions, and offered unreserved support for ensuring that vulnerable parents were not criminalised:

"For all parents, criminalisation should be a last resort, only pursued when all other options have failed to achieve change necessary, and the purpose of prosecution is clear. In particular, if parents have limited capacity, then whole family approaches, and joint working across services should be used to avoid financial penalties or custodial sentences. It should be clear that putting in place arrangements to keep children safe and prosecuting parents are separate issues, and separate processes." [Public Sector Organisation]

Among specific suggestions for steps which could be taken, the main ideas were:

  • putting in place a multi-disciplinary team to help and support affected families in both the short and longer term and extending services (especially social work services) available to support vulnerable parents;
  • trying to gather a better understanding of vulnerable parents' experiences, i.e. professionals learning from those with 'lived experience';
  • sensitive questioning/investigate approaches appropriate for this group (ensuring that parents' needs and capacities are assessed by a multi-agency team, as part of the investigation);
  • making professionals aware of the specific challenges faced, including training on supporting parents with learning disabilities being offered as a part of qualifying programmes and continuing professional development;
  • more parenting training being made available for vulnerable parents (as well as early intervention to prevent neglect occurring). Education programmes should be aimed at developing skills in responding appropriately to challenging behaviour, and 'parenting champions' could be made available to support parents on an ongoing basis; and
  • provision/availability of independent advocacy for vulnerable parents during investigations/court proceedings.

"As discussed throughout this response, the focus of collective efforts to protect children from neglect should be on addressing the societal and structural factors (such as poverty) which impact on families' capacity to meet the need of their children; and the provision of high quality, accessible, holistic family support; not criminalisation." [Academia]

Another common theme (also raised earlier in the consultation) was ensuring that terms such as 'wilfulness' and 'recklessness' were clearly defined and require to be advertent rather than inadvertent - this would help to protect vulnerable parents from unfair criminalisation, it was felt. Developing a clear definition of 'vulnerable' was also suggested as well as clarifying the definitions of learning disability/learning difficulty, given the impact of this on determining the level/provision of services made to adults in these categories (i.e. ensuring that eligibility for support remains suitably wide).

One organisation also suggested that there may be merit in exploring the concept of 'good enough parenting' to ensure parents are not too afraid to seek help or assistance for fear of prosecution.

More general comments included reviewing each case on an individual basis, obtaining the views of the child in decision making procedures, ensuring access to suitable financial resources for vulnerable parents and keeping guidance (including the COPFS Code) up to date and evidence-based:

"Again, the use of an evidence-based approach is critical to intervening effectively with families, to ensure vulnerable parents are not unfairly criminalised for behaviour. This would help form the basis for a comprehensive assessment which would take into account the context and vulnerabilities faced by the parent(s) i.e. mental health, learning difficulties, and their ability and willingness to engage with the services on offer." [Public Sector Organisation]

Specific reference was made to ensuring that guidance to the revised offence details the relevant legislation, research and policy specific to the needs of parents with learning disabilities so that professionals do not mistake a lack of support for criminal neglect. One organisation indicated that guidance should include:

  • part 12 Children and Young Persons Act 2014;
  • reference to Human Rights provisions in the UN Convention on the Rights of Persons with Disabilities (article 23) and the UN Convention on the Rights of the Child (article 18); and
  • relevant research as detailed in the report Supporting Parents with Learning Disabilities in Scotland: Challenges and Opportunities (2015)[5].

The same organisation urged that work should begin urgently on the plan to implement the recommendations in the report Supporting Parents with Learning Disabilities in Scotland: Challenges and Opportunities (2015) as agreed by the Parenting Task Group.

One organisation also suggested that were there to be a national adoption of 'care experience' as a protected characteristic under equalities legislation, this would mean that parents whose vulnerability derives from their own upbringing/experience of the care system would be granted additional protections. Another suggested that young carers had been overlooked, as well as refugees and asylum seekers, and people who have additions or are suffering from substance abuse. Young people who have left home could also still be subject to emotional abuse, it was stressed.

Several respondents again used this question to stress that the child's best interest should always be protected:

"… while support is being offered to parents, it is important that appropriate support and protection are offered to the child. Processes of supporting parents to understand the risks of their behaviours and to change can take an extended period of time, and it is important that children are not left at undue risk during this time." [Third Sector Organisation]

This may include taking children (temporarily) into care where parental vulnerability was evidenced, but this was seen as something which should be a last resort: keeping families together (via diversion from prosecution or supporting them to cope) was seen as the preferred approach wherever possible.

Only a very small number expressed views that, if a parent was deemed competent overall, then section 12 should apply in any case, and vulnerability was not a reasonable excuse. A small number also suggested that sufficient processes/steps were already in place. One organisation stressed that the Children's Hearings System and the Criminal Justice System in particular already worked well together to ensure the protection of children and prosecution of parents only where relevant, ensuring that protection of children is the paramount concern.

Finally, one respondent recommended seeking further consultation on this point from relevant stakeholders, including third sector organisations working with vulnerable adults and children.