Two child protection offences set for overhaul

Potential changes to two criminal offences related to child protection have been put out to consultation by the Scottish Government.

Ministers are proposing to revise the offence of child neglect in s 12 of the Children and Young Persons (Scotland) Act 1937, and the offence of sexual abuse of trust currently set out in s 42 of the Sexual Offences (Scotland) Act 2009.

In the foreword, Minister for Children and Young People Maree Todd explains that the Government's Child Protection Improvement Programme has highlighted the need for legislation that corresponds to modern understanding of neglect and the impact of emotional harm.

"We recognise that updating the s 12 offence is complex and involves consideration of a wide range of factors", she states. "The knowledge, perspective and views of others is essential in shaping a revised offence of child neglect. This consultation is therefore concerned with exploring the key issues both around the operation of the current offence, and what should be considered in reviewing s 12."

Problems with s 12 include that: 

• the extent to which it covers emotional harm is unclear at best; 
• there can be difficulty in prosecuting where there is only a risk of harm as opposed to harm actually caused; there is confusion about whether the perpetrator needs to have intended the consequences of their actions; 
• the age at which a person can be a victim differs from other legal age limits; 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 who is not left in sole charge of a child.

Social workers and other professionals who work directly with children and families have also reported that a perception of the complexities of bringing cases under s 12 acts as a deterrent from reporting cases in the first place.

The revised offence would include clear statutory definitions of the terms "ill-treatment" and "neglect", in language which corresponds to that currently understood in Scots law, along with specific reference to emotional neglect and emotional harm. Ministers are also exploring whether the language of the offence can be simplified by removing the terms "abandonment" and "exposure", as being effectively covered by "neglect".

Terrifying a child, rejecting a child (such as by making them feel worthless, or ignoring their needs) corrupting a child by encouraging inappropriate or illegal behaviour, or deliberately creating conflict between siblings, are all given as examples of behaviours that should be covered by the revised offence.

On the 2009 Act provision, which make it criminal for an adult who engages in sexual activity with a child under the age of 18 in respect of whom they are in a "position of trust", the paper observes that there have been views expressed that the existing definition of a "position of trust" may be seen as too narrow, as it does not include for example sports coaches, music tutors or people providing religious instruction, unless they are then looking after children in an institution such as a school. However it recognises the need to ensure the offence "is sufficiently clearly framed that it does not create uncertainty as to the circumstances in which a person is or is not in a position of trust in relation to a child".

Click here to access the consultation. The deadline for responses is 14 November 2018.