Response 452644755

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Consultation questions

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?

Please select one item
Yes
No
Please explain your answer
The items identified as requiring reform are difficult to prove and are clearly difficult to define. As with other attempts to "reform" law - there will be a lack of clear definition of the terms and therefore people will be open to mi-application of the law.

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

Please select one item
Yes, the terms should be defined in legislation
No, the terms should be defined in guidance
No, the terms should not be defined
If so, do you think they should have a meaning which is different from current interpretations?
These terms are clear in a common sense understanding and would need to be proved in a court of law. Seeking to define the terms in guidance and / or legislation will have two effects. Over definition - creating interpretation difficulties which lead to mis-application and loophole creation where badly defined terminology leads to escape from prosecution because the actual event was not defined. Leave the definitions open - and let the courts decide on a case by case basis. Stop interfering in the business of the courts and the jurys.
Further, do you think it is necessary to keep the terms “abandonment” and “exposure to risk” in a modernised offence?
No - it is very clear what "abandonment" and "exposure to risk" are.

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?

Make sure they have enough support from the local authorities - ie: not over worked, not under paid! Make sure they are properly trained and have understanding of laws - such as these.

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?

Neglect is clear. Emotional harm is a subjective term and must not be used without clearly defined boundaries.

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

Please select one item
Yes
No
Please explain your answer.
Emotional abuse is too subjective a term to define. Clear abuse of someone by consistent and determined manipulation can already be dealt with through the current legislation. Addition of this type of terminology is only serving to create a meddler's charter - or creation of "grievance" charges being brought in the event that someone doesn't "like" an approach or feels "uncomfortable".

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?

See comments above. I see no need to the law to be revised.

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

Please select one item
Yes
No
Please explain your answer.
It covers the necessary requirements.

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

Please select one item
Yes
No
Please explain your answer.
Modification to clarify the situation to ensure that illicit drugs and alcohol are included - as well as irrespective of the place or environment of the incident is warranted.

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?

Please select one item
Yes
No
Please explain your answer
It is necessary for this to be tested through judge and jury - that is their function - therefore the definition and test of "a reasonable" person is required.

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?

Please select one item
Yes
No
Please explain your answer.
The specifics and background of all situations should be tested against the actions of a "reasonable" person.

11b). If not, do you think the offence should only apply to those who:

Please select one item
intend to cause harm to a child by their action or inaction?
intend or is reckless as to whether harm is caused?
Comments:
Why should it be either or? I am annoyed by this question as after selecting the option - I am not allowed to select both!!!!!

The point here should be the specifics of the case and the court / judge / jury - given the freedom to do their job and assess the situation / case on it's facts. Creating a one or the other definition - results in limitation of the scope of the testing of the case. The requirement of "reasonable" behaviour is required.

12. Who should be capable of committing the offence?

Comments:
It should stay as it is. Parental responsibilities. [Which I would assume includes "in loco parentis"]. Other parties will be dealt with by existing and alternative criminal law.

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

Please select one item
Yes
No
If yes, what should the age limit be?
12. By the age of 12 reasonable people are clear on the impact that they can have on others in a criminal sense.

14. Do you think that a child should be defined as 18 in relation to the offence?

Please select one item
Yes
No
Please explain your answer
16. 16 is the age at which (within Scotland) responsibilities of adults begin to be conferred on children.

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

Please select one item
Yes
No
Please explain your answer - if yes, what do you believe the appropriate penalties would be?
Definition is clear and can be left to the responsibility of the court to apply in the specifics of the case.

16. What, if any, steps 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?

None. It should not lessen the need to be clear that the actions of a reasonable person are the test bed.

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

Support from social work should assess this.

19. Do you have any comments on whether the definition of a ‘position of trust’ should be extended to cover other positions in which a person is in a position of power, responsibility or influence over a child?

No - someone in a position of trust is not a parent nor "in loco parentis".

About you

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