Protecting children: review of section 12 of the Children and Young Persons (Scotland) Act 1937 and section 42 of the Sexual Offences (Scotland) Act 2009 - consultation

Footnotes

1 J. Scott and B. Daniel: ‘ Background Paper 1: Follow-up survey 2016’ ( CCWP, April 2018); ‘ Background Paper 2: Rapid review of the literature on intervention’ ( CCWP, April 2018); ‘ Background Paper 3: Rapid review of the legislation and policy’ ( CCWP, April 2018).

2 Review of Child Neglect in Scotland, Daniel, Burgess and Scott (Scottish Government, Edinburgh, 2011)

3 Since 2012, multiple concerns can be recorded at each case conference (rather than just the main category of abuse). This means that the total number of concerns is larger than the total number of registrations, and that figures on concerns identified from 2012 onwards are not comparable to previous data on category of abuse/risk. For the 2,631 children on the child protection register at 31 July 2017, there were 6,410 concerns at the case conferences at which they were registered – an average of 2.4 concerns per conference.

4 section 67(2)(a) of the Children’s Hearings (Scotland) 2011 Act.

5 The grounds of referral are set out at section 67 of the 2011 Act.

6 https://www.legislation.gov.uk/ukpga/1995/46/schedule/1

7 Section 67(1)(b) of the 2011 Act ("a schedule 1 offence has been committed in respect of the child")

8 Section 27 of the Act.

9 R v Senior [1899] 1 W.B. 283 at 290-291 and H v Lees; D v Orr, 1993 S.C.C.R. 900

10 H v Lees, 1993 J.C. 238, page 245.

11 See H v Lees, 1993 J.C. 238 where the court stated that "..it cannot be assumed that such neglect will be likely to cause the child unnecessary suffering or injury to health, as this cannot be left to speculation. There must be some evidence to support the inference that this was likely to occur."

12 R v Sheppard (James Martin) [1981] A.C. 394 HL at 404.

13 See Gordon, Criminal Law, (vol 2, 3 ^rd edn by Michael Christie), paragraph 31.06.

14 See e.g. M v Locality Reporter, Glasgow [2015] CSIH 58. In this case the father had picked the children up using one hand, causing them injury involving a significant degree of force or pressure. In that case Lord Carloway stated that "the court must be able to categorise the conduct as ill-treatment, in the sense of involving what can reasonable be described as cruelty" (para 51)

15 H v Lees; D v Orr, 1933 J.C. 238.

16 This guidance provides a national framework within which agencies and practitioners at local level - individually and jointly - can understand and agree processes for working together to support, promote and safeguard the wellbeing of all children. It also serves as a resource for practitioners on specific areas of practice and key issues in child protection.

17 National Guidance for Child Protection in Scotland (Edinburgh, Scottish Government, 2014) p. 37.

18 Ibid p. 35.

19 R v Sheppard [1981] AC 394 HL at 404, per Lord Diplock: "To neglect a child is to omit to act, to fail to provide adequately for its needs; and, in the context of section 1 of the Children and Young Persons Act 1933, its physical needs rather than its spiritual, educational, moral or emotional needs."

20 Kennedy v S, 1986 S.C. 43.

21 The Law Society of Scotland, ‘ Response to consultation on proposals for the creation of an Offence of Wilful Neglect or Ill-treatment with regard to services for Children under the age of 18 – further engagement’ (2 Nov 2015)

22 See H v Lees, 1993 J.C. 238 where the court stated that "..it cannot be assumed that such neglect will be likely to cause the child unnecessary suffering or injury to health, as this cannot be left to speculation. There must be some evidence to support the inference that this was likely to occur."

23 G. H. Gordon, Criminal Law in Scotland, edited by Michael G.A. Christie, 3 ^rd edn (Edinburgh: SULI: W. Green, 2000), para. 31.07. Emphasis added.

24 R v Sheppard [1981] 1 AC 394.

25 Clark v HM Advocate, 1968 J.C. 53.

26 See e.g. S v Authority Reporter 2012 S.L.T. (Sh Ct) 89 , and Dunn v McDonald 2013 SLT (Sh Ct) 34 , both of which were considered in JM v Locality Reporter [2015] CSIH 58.

27 Clark v HM Advocate 1968 JC 53.

28 JM v Locality Reporter [2015] CSIH 58.

29 [2015] CSIH 58. Concerned injuries sustained by infant twins as a consequence of the father’s method of lifting them using only one hand. The Inner House refused the father’s appeal and found that the deliberate act of lifting the twins in a manner causing harm was sufficient to establish the harm was "wilful" without needing to establish subjective awareness of the harm caused.

30 Ibid fn21.

31 Stakeholders may also wish to note that a Bill to raise the age of criminal responsibility to 12 is currently being considered by the Scottish Parliament.

32 Article 1, the UN Convention on the Rights of the Child.

33 See the Guidance at http://www.gov.scot/resource/doc/316712/0100858.pdf and in particular Chapter 2, concerning ‘regulated work’.

34 The current prescribed sum under the Criminal Procedure (Scotland) Act 1995 is £10,000.

35 By virtue of the Criminal Proceedings etc. Reform (Scotland) Act 2007 s.45 the maximum period of imprisonment on summary conviction of an offence under this section is to be read as a reference to 12 months rather than 6 months.