Faculty highlights problems in criminalising child emotional abuse

The criminal offence of child cruelty should be reformed, but care must be taken to prevent everyday discipline from being criminalised, the Faculty of Advocates said today.

Faculty was responding to a Scottish Government consultation on possible changes to s 12 of the Children and Young Persons (Scotland) Act 1937, which prohibits neglect and cruelty. In particular, the review is considering making it explicit that the offence covers emotional harm.

The Scottish bar's professional body agrees that the wording in the 1937 Act is "archaic, a product of its time", and that "modernisation is overdue to bring the offence into line with modern thinking and modern understanding of child abuse and child neglect".

It observes that the lack of definitions of the key terms of the legislation makes it difficult to know whether any particular act or omission is outlawed by the Act.

However, while supporting "clear legislative protection" from emotional abuse, it comments that "this is easier said than done, especially with a view to ensuring conduct which should not be criminalised is not covered by any future legislation".

Faculty continues: "In our opinion, the legislation should be framed such that acts or omissions which the ‘reasonable parent’ may employ which may upset the child (such as grounding the child or taking away a mobile telephone or games console after poor behaviour) are not even potentially criminalised… It may be that some particular level of emotional harm should be specified, to ensure that otherwise normal parenting is not criminalised."

On how professionals can be helped to identify when cases reach a criminal threshold, the response adds: "It may also be the case that a consistent line cannot be drawn, because what happens in one household in particular circumstances may be seen to reach the criminal threshold, while the same act or omission in a different household may not, perhaps because of particular mitigatory factors present in that household. This question, and the difficulty in answering the question properly, would appear to lie at the heart of the entire project of reform of the law in this area."

For similar reasons Faculty also believes the offence should apply to "those who intend or are reckless as to whether harm is caused", rather than any lower test. And the minimum age of the perpetrator should be 18, with matters below that age being dealt with civilly.

The consultation also covers the offence of sexual abuse of trust and whether the existing definition of a "position of trust" should be widened.

Faculty observes that the offence involves consensual sex with someone over 16, and while criminalising sexual relations between, for example, a teacher and a pupil is "entirely appropriate", there are "very real difficulties with an extension of the definition of people who are in such a ‘position of trust’ such that normal sexual relationships would or could be criminalised".

Click here to view the full response.