Slap to head met Children Act offence test: Appeal Court

A summary sheriff erred in holding that a slap to the head of a four year old child by her mother, which the sheriff accepted constituted “ill treatment” in terms of s 12(1) of the Children and Young Persons (Scotland) Act 1937, was not likely to lead to injury to health or unnecessary suffering so as to constitute an offence under the section, the Sheriff Appeal Court has ruled.

The court also decided that it was competent for the reporter to the children's panel to appeal against the finding although the ground of referral incorporating this allegation had been found established in relation to other facts, rejecting an argument for the mother that the appeal amounted merely to an exercise of adjustment of the supporting facts.

The appeal was brought by the Locality Reporter, Stirling in relation to a child S, who was referred to the reporter on three grounds. Her mother, KR, and father, RL, did not oppose grounds alleging lack of parental care, and connection with a person who had committed a scheduled offence (which related to an assault by KR on another daughter). On the ground alleging a s 12 offence against S, they accepted an allegation based on neglect due to the state of their home, but not a separate allegation concerning the slap, which was said to have taken place in a pharmacy.

After hearing evidence the sheriff found KR had struck S once to the side of the head using moderate force, that S was neither injured nor distressed, that S had just bitten KR on the arm, and that the strike was a “momentary fleeting contact”. He held that the likelihood of injury test in s 12 required evidence to support the necessary assessment, and here there was no evidential basis of the potential medical consequences.

On the reporter's appeal KR argued that the appeal was incompetent, as the only matter that could competently be brought under review was whether a ground had been established; that the appeal court should not engage in adjusting the supporting facts to the statement of grounds; and that the appeal was academic.

Sheriff Principal Derek Pyle, sitting with Appeal Sheriffs Alasdair MacFadyen and Norman McFadyen, said the appeal was competent. Section 163 of the Children's Hearings (Scotland) Act 2011 meant the entire contents of an application – grounds of referral and supporting facts – could be appealed. The reporter could have made two separate grounds of referral, in which case the competency argument would not have arisen.

It was an absurd interpretation of s 163 to exclude the Appeal Court's jurisdiction. Far from being adjustment, it was an exercise of addressing the principal question raised in the application to the sheriff and in the appeal. Nor was the appeal academic, as the discussion and decision at the children's hearing might be different depending on the nature of the s 12 offence found proved.

On the merits of the appeal the court concluded: “The fact that this case involved positive ill treatment is relevant. The nature of the action, the blow, and the reaction of the child, the movement of the head, are relevant. Those facts, combined with the shock felt by the pharmacy assistant, who witnessed the incident, clearly point towards the establishment of likelihood of suffering.

“It seems to us that the summary sheriff fell into error by attaching too much weight to the actual apparent absence of immediate ill effect on S as determinative of the issue of likelihood... Simply because the child did not demonstrate any suffering does not mean that there was no likelihood of suffering... In our view the evidence... ought to have persuaded the summary sheriff to conclude that there was a likelihood of S suffering as a result of the blow... Indeed that was the only inference which could have been drawn from the evidence.”

Click here to view the opinion of the court.