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 4. Issues with section 12 and proposals for reform

4.1. Summary of identified issues

4.1.1 We consider that the following are the key reasons for reform:

• the language used in the offence is old-fashioned and does not reflect our modern understanding of neglect (outlined in 4.2);
• the extent to which the current offence covers emotional harm is unclear at best (outlined in 4.2);
• there can be difficulty in prosecuting where there has been no harm caused, but only a risk of harm (outlined in 4.3);
• there is confusion about whether the perpetrator needs to have intended the consequences of their actions (outlined in 4.4);
• the age at which a person can be a victim of the offence differs from other legal age limits (outlined in 4.6); and
• the current definition of who can commit the offence means it is not possible to prosecute parents younger than 16 and may be difficult to prosecute a parent without Parental Responsibilities and Rights ( PRRs) who is not left in sole charge of a child (outlined in 4.5).

4.1.2 There have been a number of cases which demonstrate that there can be difficulties with prosecuting under the current offence, highlighted to us by the police and COPFS. Beyond that, we have also heard from social workers and other professionals who work directly with children and families that a perception of the complexities of bringing cases under section 12 acts as a deterrent from reporting cases in the first place. The responses to this consultation will help us better understand how we best go about addressing some of these difficulties, as well as aid our understanding of what some of the adverse effects of legislative change might be.

Question 1

Do you think that the offence in section 12 of The Children and Young Persons (Scotland) Act 1937 would benefit from reform and modernisation?

Yes
No

Please explain your answer.

4.2. Language and emotional harm

4.2.1 The current offence is set out in legislation from 1937 and the language is antiquated. In particular, there is a lack of clarity around terminology used in the legislation, such as ‘mental derangement’ and ‘ill-treats’. Most centrally, the term used in section 12 to describe the type of behaviour which constitutes an offence is ‘cruelty to children’. Section 12 does not use the term child ‘abuse’, but in effect section 12 (by covering ill-treatment, neglect, exposure to risk and abandonment) covers many forms of abuse.

4.2.2 Abuse in its widest sense is understood as any form of maltreatment of a child. The National Guidance for Child Protection in Scotland 2014 specifies abuse most commonly as physical, emotional or sexual abuse, and neglect. Section 11(7C) of the Children (Scotland) Act 1995 defines abuse as "violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress". Other forms of abuse, such as sexual abuse or physical abuse, are covered by other parts of the criminal law as outlined in Annex D. It is not intended that section 12 be broadened to cover forms of child abuse already covered elsewhere in law.

4.2.3 Section 12 currently applies to acts of wilful ill-treatment, neglect, abandonment or exposure to harm. Each of these terms is considered below.

• Abandonment is largely understood as meaning to leave a child to its fate and has been applied in cases where a parent has left a child alone for an extended period ^[13] .

• Exposure is commonly understood in this context to mean to expose a child to risk. This could cover a wide range of behaviour and does not appear to be commonly used.

• Ill-treatment has no statutory definition and is not a term commonly used in child protection practice. "Ill-treatment" is used more frequently where there is a particular action by the accused, such as injury or violence, rather than to describe a lack of care ^[14] .

• Neglect has been described by the courts as a failure to provide "what a reasonable parent, in all the circumstances, would regard as necessary to provide proper care and attention to the child" ^[15] .

4.2.4 Since the offence was drafted in 1937, our understanding of the impact of neglect has developed significantly. We are clear that neglect leads to some of the most profound negative and long-term effects and can continue to have effect well into, and throughout, adulthood.

4.2.5 It is our intention to provide clear statutory definitions of the terms "ill-treatment" and "neglect" as part of a revised offence. We will do this in language which corresponds to that currently understood in Scots law, as referenced above. We also propose to include specific reference to emotional harm (see 4.2.10). Lastly, we will explore whether the language of the offence can be simplified by removing the terms "abandonment" and "exposure" as these elements of the offence are not commonly used and we believe the acts they are intended to cover could be effectively covered by the term "neglect".

Question 2

Do you think that existing concepts of "neglect", "ill-treatment", "abandonment" and "exposure" should be defined in the legislation?

Yes, the terms should be defined in legislation
No, the terms should be defined in guidance
No, the terms should not be further defined

If so, do you think they should have a meaning which is different from current interpretations?

Further, do you think it is necessary to keep the terms ‘abandonment’ and ‘exposure to risk’ in a modernised offence?

Divergence between legal and social work definitions

4.2.6 We know that social workers and other front line professionals who have to define at what point something becomes a criminal matter face difficulty in doing so. This is complicated by the fact that legal definitions are not currently set out in legislation but are instead found in case law.

4.2.7 The definitions used by front line professionals differ from those used in law. Brigid Daniel and Jane Scott’s 2016 " Child Neglect in Scotland: Follow-up survey" asked Child Protection Committees ( CPCs) if a formal definition of neglect was used by practitioners to identify children experiencing neglect. All except one replied that a formal definition was in place and reflected the definition provided in the National Guidance for Child Protection in Scotland (2014) ^[16] .

4.2.8 The National Guidance defines neglect as follows;

"..[T]he persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development. It may involve a parent or carer failing to provide adequate food, shelter and clothing, to protect a child from physical harm or danger, or to ensure access to appropriate medical care or treatment. It may also include neglect of, or failure to respond to, a child’s basic emotional needs. Neglect may also result in the child being diagnosed as suffering from ‘non-organic failure to thrive’, where they have significantly failed to reach normal weight and growth or development milestones and where physical and genetic reasons have been medically eliminated. In its extreme form children can be at serious risk from the effects of malnutrition, lack of nurturing and stimulation. This can lead to serious long term effects such as greater susceptibility to serious childhood illnesses and reduction in potential stature. With young children in particular, the consequences may be life-threatening within a relatively short period of time." ^[17]

4.2.9 Not all neglect which requires practitioner or social work involvement would necessarily also be serious enough to lead to criminal prosecution. As set out in section 2.3 above, the Children’s Hearings System plays an important role in ensuring that measures are taken for children where the referral ground of ‘lack of parental care’ is established. In many cases, it may not be in the best interest of the child or the public interest for the parent/carer to also face criminal prosecution. While we will reconsider the legal definitions in section 12 (see 4.2.5), it is not our intention to equate legal and practitioner definitions. However, it may be appropriate for practitioner definitions to be provided in guidance to make it clearer what constitutes ill-treatment or neglect for the purposes of the criminal law. The difficulties the police and front line practitioners experience in bringing cases for prosecution under section 12 indicates that more can be done to improve how the two tests work together.

Question 3

Do you have any thoughts on how professionals dealing with children and families can be supported to identify when cases reach a criminal threshold?

Question 4

Do you have any thoughts on how we can support legal professionals to further understand the impact of neglect and emotional harm on children and young people?

Emotional abuse and harm

4.2.10 One of the key concerns with the current section 12 offence is that it is unclear whether it covers emotional abuse and harm. The National Guidance contains the following definition of emotional abuse:

"Emotional abuse is persistent emotional neglect or ill treatment that has severe and persistent adverse effects on a child’s emotional development. It may involve conveying to a child that they are worthless or unloved, inadequate or valued only insofar as they meet the needs of another person. It may involve the imposition of age – or developmentally – inappropriate expectations on a child. It may involve causing children to feel frightened or in danger, or exploiting or corrupting children. Some level of emotional abuse is present in all types of ill treatment of a child; it can also occur independently of other forms of abuse" ^[18] .

4.2.11 Section 12 defines harm as: "unnecessary suffering, or injury to health (including […] mental derangement)". The inclusion of this term provides some acknowledgement that neglect and ill-treatment may cause emotional as well as physical harm to children. However, little attention has been paid to the term ‘mental derangement’ in case law, suggesting it has not been frequently used since the Act was introduced in 1937 and it is therefore unclear whether emotional harm is covered by the offence.

4.2.12 In England, a leading case from the House of Lords suggested that neglect only captures a child’s physical needs rather than their emotional needs ^[19] . As this case has not yet been applied by the Scottish courts it is possible that the offence is wider in Scotland, but at the moment it is unclear.

4.2.13 Notably, there has been one case before the Second Division of the Court of Session where the sheriff considered a case of neglect under section 12 and described the harm caused as "emotional harm" ^[20] . However, this judgment was in relation to a children’s hearings case and there is no clear criminal case law supporting conviction explicitly on the basis of emotional harm or the effect of the behaviour. Further, there is ambiguity about whether the finding actually rested on the likelihood that the children concerned could have sustained physical injuries rather than the fact they had been subjected to non-physical neglect. The case law therefore remains unclear.

4.2.14 We think it is desirable to put this beyond doubt and make it explicit in the legislation that "neglect" includes emotional neglect and "harm" includes emotional harm.

4.2.15 A study commissioned by Action for Children, encompassing 31 jurisdictions found that in 25 of the jurisdictions surveyed, emotional harm is explicitly criminalised. The study conceded that the position in Scotland is not clear; only in Washington State and in England and Wales did the law not encompass emotional harm (though English and Welsh law has since been amended to explicitly cover psychological harm, see 2.1.3).

4.2.16 The Scottish Government considers that the lack of clarity around emotional abuse in section 12 is not acceptable for a modern country where the safety and wellbeing of children is paramount. As we are clear about the impact of emotional abuse on children and young people, there should be a clear route to prosecution. Further, if we do not take the necessary steps to ensure that emotional abuse is effectively and clearly covered in criminal law for the most serious cases, we risk sending a message that it is somehow less ‘serious’ than physical abuse. This is contrary to our understanding of emotional abuse not only for children, but also in adult relationships. The Domestic Abuse (Scotland) Act 2018 recognises that protection from all forms of harm from partners should be provided for in law; we consider the same protection should be provided for children.

4.2.17 Examples of behaviours that are commonly accepted as constituting emotional abuse follow. This list is not intended to be prescriptive or exhaustive, but is included to illustrate the level of seriousness of the behaviour that we consider should be reflected in any revised offence.

• Terrifying: to threaten a child (or someone the child loves) with physical violence, abandonment, or death. The adult may threaten the child verbally; they may yell, scream, or curse or use other tactics to intimidate and terrorise the child. They may swing from rage to warmth to rage, ridicule the child, and/or force the child to watch inhumane acts.
• Rejection: to reject a child, to push them away, to make them feel that they are useless or worthless. The adult may seem irritated by the existence of the child, and constantly belittle them. The adult may seem indifferent towards the child’s needs, or ignore those needs, or make the child feel that their opinions, views or feelings are worthless.
• Corrupting: to tolerate or encourage inappropriate or illegal behaviour; to expose the child to antisocial role-models or violence and anger; and advocate bullying of others. The adult may reward the child for substance abuse or bigotry; promote illegal activities; and/or reward the child for such behaviours as lying, stealing, etc.
• Conflict with siblings: This is the deliberate creation of conflict between children. For example, a father will talk to Child A about Child B and say how he is upset with Child B because Child B said some terrible things about Child A. Child A will then be angry with Child B for both hurting her feelings and also for making the father sad. Child A and Child B will rarely discuss the incident because the parent has set up the children to distrust one another. In extreme cases, this could result in a level of emotional harm that may make it suitable for prosecution.

4.2.18 It should be noted that for the purposes of this consultation, we have used the term "emotional" rather than "psychological" to refer to the type of harm we wish to see captured by section 12. This is because it is the terminology already in use among frontline practitioners working with children and their families, and a definition exists within the National Guidance. We do not consider that there is a practicable difference between "emotional" and "psychological" for the purposes of the section 12 offence. However, the term "psychological" is more commonly used within legislation, and this may be reflected in any amended offence.

4.2.19 We consider that section 12 should be amended to address emotional abuse to reflect a contemporary understanding of neglect. This would remove any doubt about whether the emotional abuse of children can be prosecuted. Further, we also intend to remove the term ‘mental derangement’ from the offence as the term is archaic and not consistent with modern day terminology.

Question 5

Do you think that children in Scotland should have clear legislative protection from emotional abuse?

Yes
No

Please explain your answer.

Question 6

Do you have examples of the sorts of behaviours and their effect on children that should or should not be captured by any revised offence?

Deeming provision (2)(b): death of a child caused by suffocation while in bed with a person under the influence of drink

4.2.20 As set out in Part 3 above, the current offence includes two deeming provisions, namely:

• where there has been a failure to provide or procure "adequate food, clothing, medical aid, or lodging" for a child; and

• where the death of a child under 3 is caused by suffocation (not caused by disease or the presence of a foreign body) while the child was in bed with an adult who was under the influence of alcohol.

4.2.21 In these two circumstances, the behaviour is deemed to be neglect and an offence is committed under section 12 whenever it can be evidenced that the conduct was ‘wilful’ in the sense of being deliberate (see part 4.4). This differs from all other forms of neglect or abuse because the deeming provisions do not require the court to establish that the behaviour amounted to neglect, or that harm or risk of harm had occurred as a result of a failure of care.

4.2.22 The Scottish Government is not aware of any reason why the first deeming provision 12(2)(a) regarding the failure to provide adequate food, clothing, medical air, or lodging should be amended or removed and therefore we do not intend to propose any amendments to that section.

4.2.23 With regards to the deeming provision in section 12(2)(b), which deems the suffocation of a child under 3 while in bed with an adult under the influence of alcohol to be child neglect, the Scottish Government intends to propose amendments. We agree with the U.K. Government’s 2015 decision to amend section 1 of the Children and Young Persons Act 1933 to also apply to persons under the influence of illicit drugs, as well as those under the influence of alcohol. We intend to change the deeming provision in Scottish legislation to similar effect. We also intend to extend the deeming provision to include situations where the adult and child are lying on any kind of furniture or surface being used for the purpose of sleeping, not just beds.

4.2.24 Amending section 12(2)(b) to also include persons under the influence of illicit drugs forms part of our wider agenda of modernising section 12 and bringing it in line with our current understanding of what should constitute criminal behaviour.

Question 7

Do you think the provision in section 12(2)(a) concerning failure to provide adequate food, clothing, medication, or lodging should be changed?

Yes
No

Please explain your answer.

Question 8

Do you think the provision in section 12(2)(b) concerning the suffocation of a child while in bed should be changed?

Yes
No

Please explain your answer.

4.3 Risk of harm

Proving a likelihood of harm

4.3.1 We know from stakeholders that there can be difficulty in proving that the offence has been committed without proving that harm to the child has taken place. It raises questions regarding how effective the legislation is in circumstances where the accused has put a child in a position of significant risk, but no harm has actually come to the child. This is particularly relevant when considering whether the offence should explicitly include emotional abuse, the effect of which is often long-term and may not be immediately demonstrable to the court.

4.3.2 The Law Society of Scotland commented, in response to the Scottish Government’s consultation on wilful neglect or ill-treatment with regard to services for children, that "it may not always be clear that neglect or ill-treatment took place without proving that harm resulted" ^[21] .

4.3.3 COPFS tell us that establishing that the neglect is likely to cause the child unnecessary suffering can be potentially problematic when prosecuting cases under section 12 if actual harm has not occurred. For example, in a case where the standard of hygiene in the home was considered by the experienced police officer dealing with the case to be the worst he had seen in his career, the court determined that no actual harm had come to the child and the offence was not proven.

4.3.4 The current offence requires the court to establish that unnecessary suffering, or injury to health was "likely", but does not require the court to establish that actual harm has occurred. Whilst it is not necessary to prove harm has been caused, the risks of suffering or injury to health cannot be entirely speculative ^[22] . This can cause problems for prosecuting cases, such as in the case of alleged neglect where no physical harm has actually befallen the child, the risks are often speculative in nature. We know that there can be difficulty for the courts in establishing or accepting that the necessary level of risk has been reached.

4.3.5 To provide clarity, we propose that the revised offence could include a requirement that a "reasonable person" would consider the accused’s behaviour to be likely to cause the child physical or psychological harm, before the offence is committed.

4.3.6 The phrase "reasonable person" is frequently used in law. It refers to a hypothetical person in society who exercises average care, skill, and judgment in their behaviour. This test requires the "reasonable person" (in a criminal case the judge or jury) to apply their minds to the behaviour of the accused and decide objectively whether that behaviour would be likely to cause harm to the child. There does not need to have been any actual harm caused; it would be sufficient that a reasonable person considers it likely that the behaviour would result in the victim suffering physical or emotional harm.

4.3.7 This approach is considered appropriate as it ensures that COPFS is not required to prove that the victim did in fact suffer physical or emotional harm, which might in many cases require the victim to provide painful evidence. In line with the approach in section 4 of the Domestic Abuse (Scotland) Act 2018, we propose making it explicit in the legislation that the commission of an offence would not depend on the victim actually suffering any harm. However, it would remain open to COPFS to lead evidence of actual harm caused to a victim if they considered it appropriate to do so in individual cases.

Question 9

Do you think that the test for establishing whether harm or risk of harm occurred should include a requirement that a ‘reasonable person’ must consider the behaviour likely to cause harm?

Yes
No

Please explain your answer.

Subsection (3)(a) and (b): harm obviated by the action of another person or instances where the child dies

4.3.8 Section 12(3) provides that a person may be convicted of an offence even where actual suffering or injury to health was prevented by the action of another person and in cases where a child has died.

4.3.9 The leading Scottish text, Gordon’s Criminal Law, suggests that this provision has not been the subject of significant case law, causing some difficulties in terms of interpretation – particularly in cases of abandonment ^[23] .

4.3.10 As we have not been made aware by stakeholders of any difficulties in applying this subsection in practice, we do not currently propose any substantive changes to this element of section 12.

Question 10

Do you think a provision equivalent to section 12(3) should be included in any revised offence, either in its current form or amended?

Yes
No

Please explain your answer.

4.4 The mental state of the perpetrator

4.4.1 From consideration of reported cases, it is apparent that the courts have encountered some difficulties in grappling with the meaning of the word "wilfully" in the phrase "wilfully ill-treats, neglects, abandons or exposes…".

4.4.2 The main issue for the courts has been whether the offence just requires that the act of neglect or ill-treatment is committed "wilfully", or whether the accused must also have been "wilful" about the fact that their actions were likely to cause unnecessary suffering or injury to the child. The question has been whether a person commits an offence if they committed the act of neglect or ill-treatment intentionally, even if they were unaware that those actions could cause the child any harm. The mental state, or mens rea, is an essential ingredient in most offences.

4.4.3 The confusion has largely been caused by the fact that the English courts have adopted a different interpretation of "wilful" to that of the Scottish courts. In England, the court will take into account whether or not the accused intended harm, or was reckless about whether harm was caused ^[24] . In Scotland, the fact a person did not intend to cause suffering or injury has been held to be irrelevant ^[25] . While the precedent set by the English courts does not bind Scottish courts, Scottish courts may have regard to English case law – and have in a number of cases. This has led to some uncertainty about whether the English test of wilfulness applied in Scotland or not ^[26] .

4.4.4 The current position in Scotland is that for an offence to be committed under section 12, it must be proved that the accused’s acts or omissions were committed "wilfully". This means that the act must be committed intentionally, rather than by accident or inadvertently ^[27] . The most recent case law in Scotland ^[28] confirms that it is not necessary, in Scots law, to show that any harm caused by the act was also intentional. So, for example, in a circumstance where a parent might leave a pot of boiling water in reach of their toddler, who then is scalded as a result, the wilful act is the leaving of the pot of boiling water in reach. It is not necessary to prove that the parent intended to harm the child in doing so.

4.4.5 As a result, a person could potentially be prosecuted in Scotland for wilfully neglecting a child in circumstances where they were unaware that their actions were likely to cause any harm. The test for neglect is therefore principally an objective one in Scotland. It might even be said that the courts have treated this as a strict liability offence. The mental state or level of awareness of the accused is irrelevant if their actions are deliberate and objectively harmful to the child.

4.4.6 The most recent Scottish case to consider the wording of section 12 was J M v Locality Reporter ^[29] . This was an Inner House decision, where the court declined to follow the English approach to wilfulness. Lord Carloway’s interpretation was based in part on the fact that the purpose of the legislation and its predecessors was to protect children from cruelty:

"The term ‘wilful’ necessarily serves to exclude accidental or inadvertent conduct, as opposed to the accidental or inadvertent consequences of deliberate conduct, from the scope of the offence. It is unnecessary, and contrary to the statutory purpose, to restrict the scope of the offence by reference to the subjective awareness of the individual of the harmful nature of the conduct in question."

4.4.7 The other two judges considering the case took slightly different approaches to their interpretation of section 12. In particular, Lord McGhie voiced concerns about the offence operating without consideration of the accused’s intentions to cause harm and suggested that the legislature might want to reconsider the policy behind this offence. The Law Society of Scotland commented in their response to the Scottish Government’s consultation on wilful neglect that "[t]he recent case of JM v Locality Reporter highlighted the problems inherent in deciding whether "wilful" should be directed to the act or neglect and/or to the consequences of the act/neglect and so greater clarity on this would be helpful" ^[30] .

4.4.8 We think that the mens rea (mental element) of the offence should be clarified. We propose clarifying that it is not necessary for the accused to have been "wilful" about the fact that their actions were likely to cause unnecessary suffering or injury to the child. This will reaffirm the existing objective liability test which already applies in Scotland.

4.4.9 As outlined in section 4.3 above, we are also proposing to introduce a requirement that a "reasonable person" would consider the ill-treatment or neglect to be likely to cause the child physical or psychological harm. This will clarify that the likely consequences of the neglect or ill-treatment is assessed objectively, and the accused does not need to have "wilfully" caused the child harm.

4.4.10 We think it should be the case that the subjective mental state or level of awareness of the accused as to the risk of harm is irrelevant to proving the offence, as long as the accused’s actions are wilful/deliberate and objectively likely to be harmful to the child. We think it is necessary for actions which are accidental or inadvertent to continue to be excluded from the scope of the offence.

4.4.11 Another approach is to introduce a more subjective test, whereby the court must be satisfied that the accused must have intended to cause harm, or been reckless as to whether such harm was caused. However, introducing such a test would require the court to undertake an assessment of the intentions of the accused and their awareness of risk, which could make the offence more difficult to prove than is currently the case. We do not wish to make it harder to prosecute offences which are designed to help protect vulnerable children.

Question 11

Do you think that the offence should apply wherever a person wilfully and deliberately acted or neglected to act in a way which caused harm or risk of harm, regardless of whether they intended the resulting harm/risk?

Yes
No

If not, do you think the offence should only apply to those who:

intend to cause harm to a child by their action or inaction? Or;
intend or are reckless as to whether harm is caused?

Please explain your answer.

4.5. Who can commit the offence

Relationship to the child

4.5.1 The offence currently can only be committed by someone who "has parental responsibilities in relation to a child or to a young person under that age [16] or has charge or care of a child or such a young person". 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".

4.5.2 Therefore the current offence can be committed by a parent with parental responsibilities, any other person with parental responsibilities or any person who has "charge or care" of a child, which could cover those people temporarily responsible for looking after children, such as wider family members who might commit an offence while babysitting, as well as professionals such as social workers who would have "charge or care" of a child for temporary periods while transporting them.

4.5.3 This current definition could, however, be difficult to apply to a non-resident partner of a parent who was not left in sole charge of a child and who does not have parental responsibilities. We welcome views on whether it would be helpful to change section 12 in this regard.

Question 12

Who should be capable of committing the offence?

Age of the person committing the offence

4.5.4 The current offence further specifies that the offence can only be committed by a person aged 16 or over.

4.5.5 Prosecutions of people under the age of 18 in relation to section 12 offences are very rare. Indeed, Scottish Government statistics show that there have been 3 prosecutions of people under 18 for a section 12 offence since 2010, and none at all since 2013.

4.5.6 Parents under 18 are often in need of significant additional support. The Scottish Government has therefore considered whether to raise the age at which the offence can be committed to 18. However, we consider that there are circumstances in which it would be appropriate for a prosecution to be brought against someone under the age of 18.

4.5.7 Another option would be to remove specific reference to the age of the perpetrator in the offence altogether. In theory, this could raise the possibility of, for example, a child aged 14 who is babysitting their younger siblings being charged with the offence should something happen to the younger sibling. We consider that it would be inappropriate for criminal liability to be conferred on a child placed in that position of responsibility. Rather, liability should remain with the parent/carer who has placed the child/children in that position.

4.5.8 There are also risks in building an age overlap in the offence such that the age at which it could be libelled is lower than the age limit to which it affords protection. This could create the unintended situation where a 16 year old could be charged with an offence in relation to a 17 year old if they are under their care.

4.5.9 As both of the above examples illustrate, if the age limit were removed there are circumstances in which the Procurator Fiscal would require to use professional judgment in assessing whether, in all of the circumstances of the case, it is in the public interest to prosecute. We propose that the age of the perpetrator should not be defined in legislation to allow discretion to be applied by the Procurator Fiscal in bringing cases forward ^[31] .

Question 13

Do you think the legislation should set out the age of a perpetrator?

Yes
No

If yes, what should the age limit be?

4.6 The age at which a person can be a victim of the offence

4.6.1 The current offence can be committed in relation to any "child" or young person under the age of 16 years.

4.6.2 The UN Convention on the Rights of the Child defines a child as everyone under 18 unless, "under the law applicable to the child, majority is attained earlier" ^[32] . The UK has ratified this Convention.

4.6.3 In Scotland, a child can be defined differently in different legal contexts. For example, 16 is the school leaving age, and the age of marriage/civil partnership. The Children (Scotland) Act 1995 makes it clear that virtually all parental responsibilities – and all parental rights – cease when the child attains the age of 16.

4.6.4 Accordingly, different legislative provisions establish different age limits, so that children and young people progressively acquire rights but nevertheless may benefit from specific protections under the law until the age of 18. The priority in the current context is to ensure that a vulnerable young person who is, or may be, at risk of significant harm is offered support and protection.

4.6.5 The Scottish Government’s position is that, considering all of the factors outlined above, the offence should apply to a child or young person up to the age of 18. This would mean that a child or young person under the age of 18 could be considered a victim of the offence.

Question 14

Do you think that a child should be defined as aged 18 or younger in relation to the offence?

Yes
No

Please explain your answer.

4.7 Penalties

4.7.1 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.

4.7.2 We welcome stakeholders’ views on whether the current penalties should be revised. We know that the impact of childhood abuse and neglect can have long-term, devastating effects on the victim well into and throughout adulthood. We want to ensure that the penalties for this offence are proportionate to the severity of the crime, as well as consistent with penalties for similarly severe offences. Where it is considered by stakeholders that the current penalties are insufficient, we would welcome examples of where this was the case.

Question 15

Do you think the current penalties for a section 12 offence should be amended?

Yes
No

Please explain your answer. If yes, what do you believe the appropriate penalties would be?

4.8. The impact on a child of domestic abuse

4.8.1 The Scottish Government is clear that domestic abuse of a parent has a devastating and long term impact on children. Children are harmed by living in an environment where domestic abuse is taking place, whether directly from witnessing the abuse or indirectly where a child is affected by the effect it has on their parent.

4.8.2 We know that children suffer from the consequences of abuse of their non-abusing parent or carer, for example where an abuser withholds money from a parent or restricts engagement with friends or relatives, as well as through the impact that the abuse can have on the non-abusing parent or carer’s ability to look after the child, and the effect that has on the relationship between that parent and the child. We also know that the effect of witnessing the abuse of a parent can cause great fear, alarm and distress to a child.

4.8.3 The Domestic Abuse (Scotland) Act 2018 addresses some of these issues as part of the creation of a new offence which criminalises conduct between partners, or ex-partners over a cumulative period as a single new offence. It specifically recognises the harm that can be caused to children by the abuse of their parent or carer through the creation of a statutory sentencing aggravation to the offence. This aggravation applies when a perpetrator involves a child in the commission of the abuse, or where a child sees, hears or is present when the abuse is taking place, or where a reasonable person would consider it likely that a child living with the victim or perpetrator would be adversely affected by the abuse. The aggravation requires to be taken into account by the court when sentencing the perpetrator with a view to enhancing the sentence to be imposed. Where the aggravation is proven, this will be formally recorded by the court and be noted on the offender’s criminal record.

4.8.4 It is important to recognise that, where their parent or carer is being abused, children of course can also themselves be direct victims of abuse by the perpetrator of the abuse towards their partner or ex-partner. This may include threatening and abusive behaviour or ill-treatment that can be prosecuted using the existing criminal law as well as psychological or emotional abuse which may be difficult to prosecute using the existing criminal law.

4.8.5 The Scottish Government is determined to ensure that children are afforded the proper legal protection from those forms of harm and abuse. Reforming the existing section 12 offence contained in the 1937 Act to ensure it more effectively covers emotional abuse of children will make it easier to prosecute this kind of abuse, including where it occurs against a background of domestic abuse. This consultation provides an opportunity to hear your views on what psychological abuse and coercive and controlling behaviour look like in relation to parent/child relationships. We also want to hear your views on whether amendments could be made to the section 12 offence to capture those behaviours, and how we can reflect the effect they have on children.

Question 16

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?

Question 17

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?

4.9 Vulnerable parents

4.9.1 We are aware of concerns by some that widening the offence risks leading to an increase in prosecutions against vulnerable parents, including parents with learning disabilities. It is not our intention in proposing amendments to section 12 to increase prosecutions against vulnerable parents.

4.9.2 We do not think it is likely that a parent or carer who has taken all reasonable steps to access the support of relevant services to help overcome difficulties would be said to subsequently have committed a wilful act of ill-treatment or neglect if harm is solely caused by the lack of such support being provided.

4.9.3 Specifically, stakeholders highlight the prevalence of parents with learning disabilities entitled to support under Part 12 of the Children and Young People (Scotland) Act 2014 having their children taken into care. We do not think that the changes proposed in this consultation would increase the chances a child being taken into care in these circumstances or the chances of the parent being convicted. We are aware of the importance of ensuring that any revised offence does not increase the likelihood of criminalising parents in those specific circumstances.

4.9.4 Further, while we acknowledge concerns related to a revised offence, the decision as to whether to prosecute is one for the Procurator Fiscal. Prosecutions will only be pursued where there is a public interest in doing so. The factors considered in deciding whether to prosecute are outlined in COPFS’ Prosecution Code. The Code specifies that consideration must be given to the circumstances of the accused in determining whether there is a public interest in prosecuting.

4.9.5 We must ensure that in changing section 12 we do not unfairly criminalise vulnerable parents. We therefore want to hear your views and specific concerns about the implications of an amended criminal offence, as well as what steps you think the Scottish Government should take to address these.

Question 18

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

4.10 Summary of the Scottish Government’s position

4.10.1 This consultation has set out the following intentions for a revised section 12 offence:

• We propose to provide clear statutory definitions of the terms "ill-treatment" and "neglect" as part of a revised offence. Definitions will help provide clarity to practitioners and ensure that the offence is capable of covering cases where emotional harm is caused. Further, we will explore whether the language of the offence can be simplified by removing the terms "abandonment" and "exposure" as we believe the behaviours concerned are covered by the term "neglect".

• We intend to remove archaic terms like ‘mental derangement’ from the offence as we do not consider these to be consistent with modern day terminology.

• The offence would continue to deem a failure to provide adequate food, clothing, medical aid or lodging as wilful neglect likely to cause harm. The deeming provision relating to a child suffocating in a bed where the child is in bed with a person under the influence of alcohol would also remain, but would be extended to cover persons who are under the influence of illicit drugs.

• The new offence could set out requirements that need to be met before the offence is committed. We think those could be that:
  
  a) the person wilfully neglects or ill-treats the child, or causes or procures him to be ill-treated or neglected; and
  
  (b) a reasonable person would consider the ill-treatment or neglect to be likely to cause the child physical or psychological harm.

• We intend to include a provision to clarify that the commission of an offence does not depend on the neglect or ill-treatment actually causing a child to suffer harm.

• We are seeking views on whether the current offence should be extended to explicitly cover parents without Parental Responsibilities and Rights ( PRRs). We propose that offence should be capable of being committed by a person of any age.

• The offence would apply in relation to the neglect or ill-treatment of any child under the age of 18, as opposed to 16 as is currently the case.

• We intend to review the penalties to this offence and, if necessary, bring them in line with the penalties of similarly serious criminal offences.

• We are seeking views on what measures can be taken to ensure vulnerable parents and parents who are victims of domestic abuse are not unfairly criminalised.