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 3. Section 12: The current offence

3.1 Section 12 of the Children and Young Persons (Scotland) Act 1937 ("the Act") is the legislation used to prosecute offences of neglect and cruelty to persons under the age of 16.

3.2 Section 12(1) provides that an offence is committed where a person who has parental responsibilities in relation to a child or young person, or has charge or care of a child or young person:

"wilfully ill-treats, neglects, abandons or exposes him, or causes or procures him to be ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering, or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement)" (the full text of section 12 is at Annex E).

3.3 The offence can only be committed by a person who is aged 16 or over and who either has parental responsibilities in relation to the child, or has charge or care of them. The Act presumes that certain persons have charge or care of a child. These are (a) a person who has been placed in charge of the child by a person with parental responsibilities and (b) any other person who has actual possession or control of a child ^[8] .

3.4 Only children or young people under the age of 16 can be victims of the offence.

3.5 The neglect or ill-treatment must be committed wilfully for the offence to be committed. This has been held to mean that the act or omission must be deliberate and intentional – not accidental or inadvertent ^[9] . The term "wilfully" does not mean that a person must also have intended to cause suffering or injury to a child, although this has previously been the subject of some conflicting case law.

3.6 The term "neglect" is not defined in section 12. However, it is generally understood to mean a failure to provide proper care and attention, and is usually committed by omission. In H v Lees, Lord Justice General Hope described the appropriate standard as "what a reasonable parent, in all the circumstances, would regard as necessary to provide proper care and attention" ^[10] .

3.7 In addition, section 12(2) itself deems that certain circumstance amount to neglect in a manner likely to cause injury to health. These are:

(a) where a child or young person’s parent or guardian fails to provide (or take steps to procure) adequate food, clothing, medical aid or lodging for the child; and

(b) where it is proved that a child under 3 died by suffocation (not caused by disease or the presence of a foreign body) while the child was in bed with a person (who is aged 16 or over) who was under the influence of alcohol when they went to bed.

3.8 Whereas neglect is usually committed by an omission to provide care, "ill-treatment" is usually committed by a positive action by the accused.

3.9 Before an act of neglect or ill-treatment etc. can be an offence under section 12, it must be shown that the act or omission was committed in a manner likely to cause suffering or injury to health. It is only necessary to show that such suffering or injury was likely – not that it actually occurred. However, the risks of suffering or injury to health should not be entirely speculative ^[11] and it can be difficult for the Crown to prove.

3.10 It is unclear whether "suffering or injury to health" includes emotional or psychological harm to a child. In England, the courts held that the phrase was limited to a child’s physical needs rather than its emotional needs ^[12] . In Scotland the position is currently unclear.

3.11 Section 12 makes further provision to clarify that a person may be convicted of an offence even where actual suffering or injury to health was obviated by the action of another person, and in cases where a child has died (section 12(3)).

3.12 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.

3.13 There were 657 charges recorded by the police as cruelty to and unnatural treatment of children in 2016/17 (it should be noted that the Scottish Government crime statistics under this category cover not only section 12 offences but also other, lesser used offences classified as unnatural treatment of children). Between 2010/11 and 2016/17, Scotland has seen a 60 percent decrease in charges recorded.

3.14 In 2016/17 COPFS reported that 150 prosecutions were taken forward against persons for offences under section 12. Of these, 106 were found guilty by a court.