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

Part 2. Section 12: Background and Context

2.1. Background

2.1.1 Neglect is one of the primary maltreatment issues that children currently face in Scotland. Evidence is clear that neglect is extremely damaging to children in the short and long term. The experience of neglect affects physical, cognitive and emotional development; relationships, behaviour and opportunities. Of all forms of maltreatment, neglect leads to some of the most profound negative and long term effects on brain and other physical development, behaviour, educational achievement and emotional wellbeing ^[2] .

2.1.2 What happens to us as children shapes who we are and can have a huge impact on us throughout our lives, especially if those experiences are adverse ones involving abuse, neglect, harm, violence or poverty. This is why in September last year we made a number of commitments in the Programme for Government to reduce the impact of Adverse Childhood Experiences ( ACEs) and to support the resilience of children and adults affected by ACEs.

2.1.3 For many years the offence of ill-treatment of children was framed in both Scotland, and, England and Wales, in almost identical terms. In 2013, however, an Independent Advisory Committee on Child Maltreatment reviewed the offence in England and Wales and concluded that section 1 of the Children and Young Persons Act 1933 was not fit for purpose, as "it fails to recognise the full range of harms done to neglected children, and creates problems of practice and interpretation for legal professionals". The 1933 Act has therefore been amended, via section 66 of the Serious Crime Act 2015, to clarify that it is an offence to ill-treat a child "whether physically or otherwise". The provision further clarifies that the suffering or injury resulting from, or likely to result from the harm, may be of "a psychological nature".

2.1.4 At 31 July 2017, there were 2,631 children on the Child Protection Register in Scotland. Emotional abuse is the most common concern that leads to children being placed on the child protection register, accounting for 38% of cases ^[3] . Parental substance misuse, domestic abuse, and neglect were the next most common concerns which led to children being registered (parental substance misuse in 38%, domestic abuse in 37%, and neglect in 36%).

2.1.5 In addition, that ‘the child is likely to suffer unnecessarily, or the health or development of the child is likely to be seriously impaired, due to a lack of parental care’ ^[4] is the most common reason for referral to the Scottish Children’s Reporter Administration ( SCRA), accounting for 6,609 referrals in 2017.

2.2. Section 12 in the context of Child Protection and GIRFEC

2.2.1 The Scottish Government considers early intervention as the primary approach for working with children and families, supported by the principles of Getting it Right for Every Child ( GIRFEC). Early intervention is key to addressing problems in their early stages to prevent them escalating and so to protect vulnerable children from neglect and cruelty.

2.2.2 There is clear recognition across all services that neglect is damaging to children. There are examples across Scotland of considerable efforts going into supporting individual children and their families, as well as into developing more effective frameworks for multi-disciplinary practice and evaluating outcomes. We know that embedding relationship-based empathic protective support for children and families within the context of communities, informed by an understanding of what best protects children and promotes their wellbeing, is critical for tackling neglect.

2.2.3 Our approach is to ensure that the right support is provided by the right people at the right time to ensure that children, young people and their families are supported to avoid crises occurring. Child protection must be seen within the wider context of supporting families and meeting children’s needs through GIRFEC.

2.2.4 Over the last 10 years we have undertaken significant investment to support parenting, to better prevent neglect, and to address the issues which give rise to neglect. Examples of these investments include the Early Years Change Fund, Public Social Partnerships, the Partnership Drugs Initiative, the expansion of free childcare, the Universal Health Visitor Pathway, and the Family Nurse Partnerships.

2.2.5 We also acknowledge that, for families where voluntary supports have not been effective, the Children’s Hearing system plays a fundamentally important role in providing support to children and families who need it.

2.2.6 We consider that it is in the best interests of children and their families that they are given support at an early stage to overcome difficulties. We will continue to explore and support early intervention and family support approaches that will help parents, carers, families and communities to build better lives for themselves and their children. We will also continue with the work around neglect identified as part of the CPIP.

2.2.7 However, promoting early intervention and prevention is not the whole picture. The Scottish Government considers that it is essential to have the right laws in place for when it is necessary to prosecute cases of neglect, abuse or harm to children.

2.2.8 We have undertaken a number of legislative programmes in recent years to ensure that children’s rights and safety are protected in law, and this reflects our developing understanding of those rights. We have comprehensive existing legislation that protects children from physical and sexual harm, and forms of exploitation.

2.2.9 Annex D provides details of the key pieces of legislation that exist to protect children. Child protection agencies work with the law relating to the protection of children. We do not intend that any changes to the criminal offence in section 12 should affect the operation of the Children (Scotland) Act 1995, the Children’s Hearings (Scotland) Act 2011, the Children and Young People (Scotland) Act 2014, or any other legislation applying to the protection of children. We will work with legal professionals and others to avoid any unintended consequences of changing the law in this area.

2.2.10 We also launched a consultation on 16 May 2018 on potential changes to Part 1 of the Children (Scotland) Act 1995 and on related matters. This consultation seeks views on how the interests of children and their need to form and maintain relationships with key adults in their lives can be at the heart of contact and residence cases. It covers a wide range of issues that affect children including how the court considers the views of the child, support for the child, who a child should have contact with and how contact should happen, how children and victims of domestic abuse can be protected and how we can improve the process for children and young people.

2.3. Children’s Hearings

2.3.1 It is important to recognise that the abuse and neglect of children is also addressed through the Children’s Hearings System, not just the offence in section 12. It is this system which puts in place measures to protect and care for children who have been neglected or abused. The criminal law plays an important role in ensuring that offenders are brought to justice, but it is separate from the civil measures that are put in place by Children’s Hearings to protect a child from any further harm.

2.3.2 The Children’s Hearings System consists of a lay tribunal, known as a Children’s Hearing, which makes decisions about whether compulsory measures of supervision are required on welfare or offence grounds for children, as set out in the Children’s Hearings (Scotland) Act 2011.

2.3.3 Where the police, social workers or others suspect that a child is being neglected or abused they are referred in the first instance to the Scottish Children’s Reporter Administration ( SCRA). The Reporter then gathers more information and determines if the case should go before a Hearing to consider if the grounds of referral are met ^[5] and if compulsory measures are required. There are a wide range of reasons for referral to the Children’s Hearing System (‘grounds’), and these grounds are established by a Sheriff using the civil law standard of proof (i.e. on the balance of probabilities), with the exception of grounds relating to criminal offences committed by the child, where the criminal standard of proof applies.

2.3.4 A child may be referred to a Children’s Hearing where any offence listed in Schedule 1 of the Criminal Procedure (Scotland) Act 1995 (Offences Against Children Under the Age of 17 Years to which Special Provisions Apply ^[6] ) has been committed in respect of the child, including an offence under section 12 ^[7] . There does not need to have been a prosecution of the perpetrator for a child to be referred on that ground. The sheriff could determine whether or not an offence has been committed on the balance of probabilities for the purpose of the referral, even where there has been no prosecution of the perpetrator.

2.3.5 A child may also be referred to the Children’s Hearings System on the ground that "the child is likely to suffer unnecessarily, or the health or development of the child is likely to be seriously impaired due to a lack of parental care". Referral under this ground can be for any number of reasons, including impeded development or health as a result of emotional abuse, neglect, or harm. This ground is the most common reason for referral to SCRA, with 6,609 referrals in 2017.

2.3.6 An offence under section 12 and a referral for ‘lack of parental care’ constitute separate grounds for referring a case to the Children’s Hearings System, so the two are not the same, nor dependent on one another. ‘Lack of parental care’ envisages a broader range of circumstances which may fall short of the standards required for proving an offence under section 12. We know that ‘lack of parental care’ is the most common reason for referral. Children’s Hearings have an invaluable part to play in ensuring that children in need of protection receive the appropriate help, and also in supporting their parents in ways that reduce the potential for harmful behaviours for which they might be charged and convicted.

2.3.7 While the purpose of section 12 is primarily to establish criminal liability in the criminal courts, we recognise that reforms to section 12 need also to be considered in light of the use of the offence to establish grounds of referral in the Children’s Hearings System. We will work with SCRA and others to avoid any unintended consequences in the development of any new legislation.