The criminal law and child neglect: - Action for Children

The criminal lawand child neglect:an independent analysisand proposal for reform

ForewordChild neglect is a deep-rooted andextremely damaging form of child abuse.It is a problem which requires a multi-facetedresponse in policy and practice across arange of agencies. In general, we knowthat social care responses need to move toearlier intervention with families both to stopand to prevent neglect, but this is not thewhole picture. Sadly, there are some casesof child neglect which require victims to beprotected by the criminal law. In this regard,the Children and Young Persons Act 1933is unfit for purpose.I am pleased to endorse the work of Actionfor Children and of the independent groupof experts and advisors that have draftedand tested the alternative framework of lawcontained within this report. The currentlaw explicitly fails to recognise the fullrange of harm done to neglected children,and creates problems of practice andinterpretation for legal professionals.This cannot be our best effort as lawmakers at protecting neglected children,and so I am determined to see througha reform of the law in this area. I invite myfellow parliamentarians to support this asa matter of great importance and urgency.Baroness ElizabethButler-SlossFormer President of the Family Divisionof the High Court and Chair of theCleveland child abuse inquiry2.

IntroductionIn April 2012, Action for Children launcheda campaign asking the Government toreview the criminal law on child neglect, ascontained in the Children and YoungPersons Act 1933.As part of this work, a group of independentexperts was convened by Action for Childrento provide informed and objective guidanceto their campaign. Members were invitedfrom a range of backgrounds and fieldsof expertise, including legal practice andacademia, specialist child psychiatry andsocial work. Representatives from a numberof relevant organisations are also part of thegroup, including Cafcass, BASPCAN, andthe NSPCC.Laura HoyanoHackney Fellow & Tutor in LawWadham College, University of OxfordAs Chair of the Advisory Group, I wouldlike to thank my fellow members who havegiven time and energy this critical subjectand important campaign, as well as ensuringthat the issues were subject to a robustdebate. The contributions of a number ofdistinguished colleagues have helped formthe arguments contained within this report.I also am very grateful to the staff of Actionfor Children for the strong logistical supportthey have provided to the Advisory Group.The Children and Young Persons Act 1933will be 80 years old in April 2013, withsections of the Act dating back to 1868.The time has come for us to treat childneglect with the same seriousness weafford physical and sexual abuse, and toreplace the antiquated, confusing andultimately inadequate criminal law againstthe neglect of children.3.

Why neglect mattersChild neglect 1 is the most common form ofchild abuse in the UK today 2 , and the mostcommon reason for a child protection referralacross the UK. 3 For some children, neglect isso profound that they starve to death or diebecause of accidents associated with lack ofsupervision. We know that too many childrenexperience chronic neglect throughout largeparts of their childhood and do not get thehelp they need when they need it.Neglect is the most common reason thatchildren are made subject to child protectionplans. Neglect is identified in 60 per centof all Serious Case Reviews. 4 These childprotection statistics are just the tip of theiceberg, with empirical studies suggestingup to 10 per cent of children in the UKsuffer from neglect. 5There is significant evidence about thesevere impact of neglect upon children’swellbeing and development. 6Neglect can take different forms, rangingfrom obvious physical signs such as beinginadequately clothed to young childrenbeing left alone in their home or on thestreets for long periods of time. Childrenmay lack parental support to go to school,miss health appointments, and be ignoredwhen distressed.Of all forms of maltreatment, neglect leadsto some of the most profound and longtermnegative effects on a child’s brain andother physical development, behaviour,educational achievement and emotionalwellbeing. 7 Neglect is also commonlyassociated with children being looked afterby the local authority: recent statistics forEngland show that 52 per cent of all childrenwho started to be looked after in the yearending 31 March 2010 first engaged withsocial care services because of abuse or1As defined by HM Government, ‘Neglect is the persistent failure to meet a child’s basic physical and/or psychologicalneeds, likely to result in the serious impairment of the child’s health or development.’ See HM Government, WorkingTogether to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children, (HMGovernment, London 2010).2NSPCC Statistics on child neglect June 2012, http://www.nspcc.org.uk/Inform/resourcesforprofessionals/neglect/statistics_wda89685.html.3C. Burgess, B. Daniel, J. Scott et al., The state of child neglect in the UK: an annual review by Action for Children inpartnership with the University of Stirling (Action for Children, 2013).4M. Brandon, P. Sidebotham, S.Bailey et al., New learning from serious case reviews: a two year report for 2009-2011,(Department for Education, 2012).5NSPCC Statistics on child neglect June 2012, http://www.nspcc.org.uk/Inform/resourcesforprofessionals/neglect/statistics_wda89685.html.6R. Gilbert, C.S. Widom, K. Browne et al., Burden and consequences of child maltreatment in high-income countries,The Lancet 373, pp. 68–77.(2009)7C. Burgess, B. Daniel, J. Scott et al., Child Neglect in 2011: an Annual Review by Action for Children in Partnership withthe University of Stirling, (Action for Children, 2012).4.

neglect – an increase from 47 per cent in2006. 8 Neglect is not only damaging in theearly years; its effects on teenagers are oftenoverlooked. 9 There is also a growing bodyof evidence that many young offenders havesuffered from neglect, which impaired theirbrain development. 10Neglect tends to attract less public attentionthan child sexual abuse, physical abuseand online exploitation, at least until a childdies. 11 Criminal justice systems in the UKhave tended to prioritise the prosecutionof sexual and physical abuse, but there ismounting evidence that neglect is at leastas harmful to a child’s long-term welfare ascontact abuse. 12case results in death.Typical examplesinclude: parents knowing that their childhad consumed a drug and not seekingtimely medical assistance, resulting in death;children in the care of an intoxicated parentwho died as a result of an accident, whichcould have been avoided had they beensupervised; and a child with poor attachmentto their mother witnessing domestic violenceand subsequently going on to commit aserious sexual assault.Serious Case Reviews (SCR) provide achronology of how harmful and persistentneglect occurs within the life of a child.Neglect can manifest as emotional and/or physical harm. Its impact, as seen in fartoo many SCRs, is life-altering and in some8Department for Education, Children Looked After by Local Authorities in England (including adoption and care leavers),http://www.education.gov.uk/rsgateway/DB/SFR/s000960/index.shtml. Accessed 5 February 2013.9M. Stein, G. Rees, L. Hicks and S. Gorin, Neglected adolescents: literature review, (Department for Children, Schools andFamilies, 2009).10N. Hickey, E. Vizard, E. McCrory et al., Links between juvenile sexually abusive behaviour and emerging severepersonality disorder traits in childhood , (Home Office, Department of Health and National Offender Management Service,2006); J. Cashmore, ‘The link between child maltreatment and adolescent offending: Systems neglectof adolescents’ Family Matters 89 (Australian Institute of Family Studies, 2011), p. 31–41.11C. Burgess, B. Daniel, J. Scott et al., Child Neglect in 2011: an Annual Review by Action for Children in Partnership withthe University of Stirling, (Action for Children, January 2012).12R. Gilbert, C.S. Widom, K. Browne et al., Burden and consequences of child maltreatment in high-income countries,The Lancet 373 (2009), pp. 68–77.5.

The current criminal lawOn 13 April 1933, The Children and Young Persons Act 1933 (CYPA) was enacted to punishcruelty to children. 13The criminal offence is contained within the Children and Young Person’s Act (1933).Part 1: Prevention of Cruelty and Exposure to Moral and Physical DangerSection 1: Cruelty to persons under sixteen(1) If any person who has attained the age ofsixteen years and has responsibility for anychild or young person under that age, wilfullyassaults, ill-treats, neglects, abandons, orexposes him, or causes or procures him tobe assaulted, ill-treated, neglected,abandoned, or exposed, in a manner likelyto cause him unnecessary suffering or injuryto health (including injury to or loss of sight,or hearing, or limb, or organ of the body,and any mental derangement), that personshall be guilty of a misdemeanour, and shallbe liable—(a) on conviction on indictment, to a fine...or alternatively,..., or in addition thereto,to imprisonment for any term notexceeding ten years;(b) on summary conviction, to a fine notexceeding £400 pounds, or alternatively,..., or in addition thereto, to imprisonmentfor any term not exceeding six months.(2) For the purposes of this section—(a) a parent or other person legally liable tomaintain a child or young person, or thelegal guardian of a child or young person,shall be deemed to have neglected him ina manner likely to cause injury to his healthif he has failed to provide adequate food,clothing, medical aid or lodging for him, orif, having been unable otherwise to providesuch food, clothing, medical aid or lodging,he has failed to take steps to procure it tobe provided under the enactmentsapplicable in that behalf;(b) where it is proved that the death of an infantunder three years of age was caused bysuffocation (not being suffocation caused bydisease or the presence of any foreign body inthe throat or air passages of the infant) whilethe infant was in bed with some other personwho has attained the age of sixteen years,to bed, under the influence of drink, bedeemed to have neglected the infant ina manner likely to cause injury to its health.The current offence requires that the prosecution prove beyond reasonable doubt that aperson: who has attained the age of 16 and has responsibility for any child or young personunder that age wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes orprocures him to be assaulted, ill-treated, neglected, abandoned, or exposed in a mannerlikely to cause unnecessary suffering or injury to health (including injury to or loss of sight,or hearing, or limb, or organ of the body, and any mental derangement).13It also made it illegal to assault, ill-treat, abandon or expose a child, although those terms are not further defined inthe 1933 Act.6.

Problems with the current lawFailure to cover the range ofharm done to childrenThe current offence only applies tophysical harm done to a child. Although theobsolete term ‘mental derangement’ mayhave been directed at non-physical harm,in 1981 the House of Lords restricted theoffence to a child’s ‘physical needs ratherthan its spiritual, educational, moral oremotional needs.’ 14In the 80 years since the ChildrenandYoung Persons Act 1933 was draftedour understanding of the harm causedby childhood neglect has developedsignificantly, especially in regard toemotional neglect and the non-physicalconsequences of neglect. Research hasshown that children who are emotionallydeprived are more likely than their peersto develop mental health problems, havepoor social and relationship skills and arevastly over-represented in the criminal justicesystem. 15 The current criminal offence doesnot reflect this knowledge, and so childneglect of a non-physical nature, howeverharmful it may be to the child and howeverlasting the consequences, is not a criminaloffence in England and Wales.A Victorian lawThe first statutory response to neglect wasthe section 37 of the Poor Law AmendmentAct 1868, which made it an offence fora parent to: “wilfully neglect to provideadequate food, clothing, medical aid, orlodging for his child… whereby the health ofsuch child shall have been or shall be likelyto be seriously injured”, with responsibilityon the ‘Poor Law guardians’ of the day toprosecute offenders. This wording remainstoday, within section 1(2)(a) of the Childrenand Young Persons Act 1933.This part of the Poor Law Amendment Actwas passed in response to specific concernsabout a sect, the Peculiar People. ThePeculiar People believed that the sick shouldbe treated through prayer and anointing, andthat seeking or providing medical assistancewould be evidence of a lack of faith in God.Members of the Peculiar People, whoseill child had died, had previously beenacquitted of manslaughter because theybelieved that their decisions were in thechild’s best interests. The phrase ’wilfullyneglect‘ was intended to capture such casesof intentional failure to act, and in this sensecreates a criminal offence of the positive actof neglect.14R v Sheppard [1981] AC 394 (HL) Lord Diplock: “To “neglect” a child is to omit to act, to fail to provide adequately forits needs; and, in the context of section 1 of the Children and Young Persons Act 1933, its physical needs rather than itsspiritual, educational, moral or emotional needs. “15N. Hickey, E. Vizard, E. McCrory et al., Links between juvenile sexually abusive behaviour and emerging severe personalitydisorder traits in childhood , (Home Office, Department of Health and National Offender Management Service, 2006)7.

This is counter to the modern understandingand definition of neglect as the omissionor ‘persistent failure to meet a child’s basicphysical or psychological needs’, 16 andleaves the current offence ‘replete withobsolete and confusing terminology’ 17that was drafted 145 years ago.The current offence is further antiquatedby the phrase ‘unnecessary suffering’.The Children and Young Persons Act 1933describes the offence of child cruelty whencommitted in a manner likely to cause‘unnecessary suffering or injury to health’.This somehow suggests that the suffering ofchildren may otherwise be necessary, whichis at odds with modern views of children andtheir rights.‘Wilful’ neglectSection 1 of the Children and Young PersonsAct 1933 provides that cruelty to a child mustbe ‘wilful’ to be considered a criminal offence.The term ‘wilful’ has been defined in case lawto mean advertent recklessness – i.e. that thedefendant was aware that some harm mightbe caused to the child if they did not act,and nevertheless ran that risk when it wasunreasonable to do so. However, this differsfrom the common understanding of the wordwhich has strong connotations of deliberateand intentional actions. As neglect istypically an omission, a difficulty arises asto how a failure to act can be regarded asa deliberate action.The term ‘wilful’ has presented numerousdifficulties in the context of neglect,particularly for juries and lay magistrateswho must ‘conceive how, as a matter ofordinary language, an omission can be wilfulbut not deliberate’, 18 and is regarded as aterm that is ‘beset by lack of clarity’. 19The five conduct elementsThe current offence can be committed inone of five different ways, namely assault,ill-treatment, neglect, abandonment andexposure. In addition to the difficulty thatall these forms of conduct must be ‘wilful’,several other problems arise:1. Assault is essentially covered by theoffence of ‘common assault’.2. Ill-treatment has no statutory definitionor accepted definition within case law (thealternative term ‘maltreatment’ is usedwidely by those working in child protection).3. Neglect (problems detailed above and below).4. Abandonment is an out-dated term withno reported prosecution since 1957.5 Exposure is an out-dated term that isignored in the sentencing guidelines, withno reported prosecution since 1910.16HM Government, Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promotethe welfare of children, (HM Government, London 2010) & Office of the Children’s Commissioner for Wales (2008) AllWales Child Protection Procedures17R. Taylor and L. Hoyano, “Criminal Child Maltreatment: the Case for Reform”, Criminal Law Review (2012), pp. 871-882.18Ibid.19D. Ormerod, Criminal Law Review (2008), p. 280.8.

Differences between the civiland criminal lawIn civil law, which governs local authoritychild protection and family court proceedings,the following definition of neglect is usedin England in statutory guidance under theChildren Act 1989: 20‘neglect is the persistent failure tomeet a child’s basic physical and/orpsychological needs, likely to result in theserious impairment of the child’s health ordevelopment … [and] may involve a parentor carer failing to provide adequate food,clothing and shelter …, protect the childfrom physical and emotional harm or danger,ensure adequate supervision (including theuse of inadequate caregivers), ensure accessto appropriate medical care or treatment, andneglect of, or unresponsiveness to, a child’sbasic emotional needs.’ 21These definitions are widely accepted andsubject to ongoing review by the Departmentfor Education. 23 This is in stark contrast to theantiquated definitions within the Children andYoung Persons Act 1933, as detailed above.The differences between the civil and criminallaw regarding child neglect also presentreal, practical difficulties, as the police areguided by one definition and social careprofessionals by another.Emotional abuse is defined as ‘the persistentemotional maltreatment of the childsuch as to cause severe and persistentadverse effects on the child’s emotionaldevelopment’. 2220This also applies in Wales. The Welsh definition of neglect is as follows: “Neglect is the persistent failure to meet a child’sbasic 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 care-giver failing to provide adequate food, shelter and clothing, failing to protect a child fromphysical harm or danger, or the failure to ensure access to appropriate medical care or treatment. It may also includeneglect of, or unresponsiveness to, a child’s basic emotional needs. In addition, neglect may occur during pregnancy as aresult of maternal substance misuse.”21HM Government, Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promotethe welfare of children, (HM Government, London 2010), para. 1.36.22Ibid., para. 1.34.23It is expected that a new version of Working Together will be published in 2013, including a limited further refinement tothe definition of neglect.9.

Our proposed alternative offenceThe Advisory Group has sought to drafta succinct, clear and workable alternativeoffence, and to:• cover the full range of harm done toneglected children, specifically includingnon-physical harm;• replace the widely misunderstoodterm ‘wilfully’ with the clearer termof ‘recklessness’;• provide a criminal law counterpart to thecivil law (Children Act 1989, sections 17and 39), facilitating shared practicesin collecting and evaluating evidenceacross agencies by the use of commondefinitions and information; and• avoid the criminalisation of vulnerableparents who are in need of guidancerather than punishment for their behaviour.We believe that the case for reform isoverwhelming, and that tinkering with thecurrent provision will not suffice. We areproposing to repeal section 1 of the Childrenand Young Persons Act 1933 – removingall five conduct elements of the currentoffence, the term wilfully, antiquated termssuch as ‘unnecessary suffering’, ‘mentalderangement’, and the entirety of section1(2)(b) which is an anachronistic statutoryexample of the offence concerning cosleepingwith an infant in a bed whilst whiledrunk from alcohol.A new offence of childmaltreatment“s.1Child maltreatment(1) It is an offence for a person who has attainedthe age of 16 years with responsibility fora child intentionally or recklessly to subjectthat child or allow that child to be subjectedto maltreatment, whether by act or omission,such that the child suffers, or is likely tosuffer, significant harm.(2) For the purposes of this section:(a) ‘recklessly’ shall mean that a personwith responsibility for a child foresaw arisk that an act or omission regarding thatchild would be likely to result in significantharm, but nonetheless unreasonably tookthat risk;(b) ‘responsibility’ shall be as defined insection 17; 24(c) ‘maltreatment’ includes:(i) neglect (including abandonment),(ii) physical abuse,(iii) sexual abuse,(iv) exploitation, and(v) emotional abuse;(d) ‘harm’ means the impairment of: 25(i) physical or mental health, or(ii) physical, intellectual, emotional, social orbehavioural development.(3) Where the question of whether harm sufferedby a child is significant turns on the child’shealth or development, that child’s healthor development shall be compared with thatwhich could reasonably be expected of asimilar child.” 2624As amended by the Children Act 1989.25Definition drawn from Children Act 1989, s.31(9), but with ‘ill-treatment’ omitted, as being circular and also illogical sinceill-treatment is conduct, not a consequence.26Section adopted from the Children Act 1989 section 31(10).10.

Replacing ‘wilfully’with ‘recklessly’Given the numerous difficulties with theuse of the term ‘wilful’ we are proposing toreplace it with the more commonly used andaccepted term ‘reckless’.The introduction of ‘reckless’ is in line withthe interpretation in the 1981 Sheppardruling, 27 and also with the interpretationof recklessness recently delineated bythe House of Lords in R v G. 28 The term‘recklessly’ was identified in the Sheppardruling as preferable to ‘wilful’. ‘Wilful’ isconsidered difficult to interpret, as it is unclearwhether it applies to someone’s action orfailure to act, or instead, or additionally, totheir failure to foresee future consequencesof their action or inaction. This causes aparticular problem in cases of child neglectwhich typically involve the failure to providecare, food, supervision, safe environment etc.child would be likely to result in significantharm, but nonetheless unreasonably ran thatrisk’. This means parents or carers who makea deliberate decision to act or not to act, orwhere they simply do not care, will be opento prosecution. At the same time, it will alsoserve to protect parents and carers wherethere is any doubt that their action or inactionwas due to mental incapacity or excusableignorance of parenting skills. The useof the term ‘unreasonably’ is adoptedfrom Lord Bingham’s 2003 definition ofrecklessness in R v G; it will confirm theexclusion from liability of, for example, carersagreeing to high-risk medical treatmentwhere there is no better medical option fora gravely ill child.Building on Sheppard, the new offence takesthe term ‘recklessly’ to apply to ‘a personwith responsibility for a child [who] foresawa risk that an act or omission regarding that27Sheppard [1981] AC 394 [418] (Lord Keith): “as a matter of general principle, recklessness is to be equiperated withdeliberation”. Lord Diplock noted that the judicial explanation of the state of mind denoted by “wilfully” in relation to thedoing of a positive act was not necessarily wholly apt in relation to a failure to act at all (at 403).28R v G [2003] UKHL 50 [41] (Lord Bingham): “A person acts recklessly within the meaning of section 1 of the CriminalDamage Act 1971 with respect to -(i) a circumstance when he is aware of a risk that it exists or will exist;(ii) a result when he is aware of a risk that it will occur;and it is, in the circumstances known to him, unreasonable to take the risk.”11.

Replacing ‘ill-treatment’with ‘maltreatment’‘Ill-treatment’ has no statutory definitionor accepted definition within case law.‘Maltreatment’ is used in the proposed newoffence. It is the term currently used by childprotection professionals and researchersto encompass all forms of what wasconventionally described as ‘child abuseand neglect’. It is used throughout thestatutory child protection guidance WorkingTogether to Safeguard Children as well as2012 legal aid legislation in the context ofthe abuse of children and vulnerable adults. 29Finally, the use of ‘maltreatment’ would alsosatisfy international pressure to standardiseterminology and definitions to enhance thecomparability of research data. 30Whilst the term maltreatment differs from‘ill-treatment or the impairment of health ordevelopment’ as contained in the ChildrenAct 1989 s.31(9), it is important that the term‘ill-treatment’ is not included in the proposedoffence. Preserving the term ill-treatment,but not the other four conduct elements bywhich the current offence can be committed,would create significant difficulties, which wewish to avoid.Replacing ‘unnecessarysuffering’ with‘significant harm’By using the term ‘significant harm’ in theoffence, the intention is both to removethe antiquated concept of ‘unnecessarysuffering’, and to align terminology withthe civil law as contained in the ChildrenAct 1989. 31 This will provide a consistentthreshold of when action can be takenacross different agencies, particularlyduring multi-agency child protectionconferences, with the different standards ofproof maintaining the necessary distinctionbetween criminal and civil proceedings.29Legal Aid, Sentencing and Punishment of Offenders Act 2012 Sch.1 Pt 1 paras 3(5), 13(3).30The United Nations Committee on the Rights of the Child has called for standardised clear operational legal childwelfare-based definitions: General Comment No.13 (2011): The Right of the Child to Freedom from All Forms of Violence,(UNCRC, April 2011), para.18. “Child maltreatment” is the preferred compendious public health terminology of the WHOand the Atlanta Centers for Disease Control (World Health Organisation and International Society for the Prevention ofChild Abuse and Neglect, Preventing Child Maltreatment: a Guide to Taking Action and Generating Evidence (2006), pp. 3,9; R.T. Leeb and others ., Child Maltreatment Surveillance: Uniform Definitions for Public Health and Recommended DataElements, Version 1.0 (Centers for Disease Control and Prevention and National Center for Injury Prevention and Control,2008), pp.3–5, 11). See also D.A. Wolfe and L. Yuan, Conceptual and Epidemiological Framework for Child Maltreatment(Health Canada, 2001), pp.4–5.31Children Act 1989, ss.17, 31(9) and (10).12.

Domestic violenceThe alternative offence would, for the firsttime, criminalise perpetrators of domesticviolence who cause significant emotionalharm to a child who witnesses their abuse.Safeguards that may be necessary to protectvictims of domestic violence from beingcriminalised are outlined later in the report.ExploitationExploitation is included as part of theproposed offence in order to be consistentwith articles 19, 32, 34, 36 and 39 of theUN Convention on the Rights of the Child,article 17(1)(b) of the European SocialCharter, and other international guidanceon child maltreatment. 3232World Health Organisation and International Society for the Prevention of Child Abuse and Neglect, Preventing ChildMaltreatment: a Guide to Taking Action and Generating Evidence (2006), p.7; E. Krug, World Report on Violence andHealth, (World Health Organisation, 2002), Ch.3, pp.59–60 (analysing common elements of definitions of abuse from 58countries); Public Health Agency of Canada, Canadian Incidence Study of Reported Child Abuse and Neglect 2008, (HMthe Queen in Right of Canada, 2008).13.

What do police officers and social workers think?Action for Children held a number of focusgroup discussions with social workersand police officers to explore front-lineunderstanding and use of the currentcriminal law on child neglect. The groupsalso discussed the proposed alternativeoffence as above.The current offenceThe main concern raised by social workerswas that the current offence limits the extentto which police are able to respond in casesof non-physical neglect. They reportedthat police generally only intervene whenthere is tangible physical evidence, and thatthere are obvious different definitions ofwhat constitutes neglect between the twoagencies. The involvement of the police incases of neglect is seen as positive, whetheror not a prosecution is pursued, to reinforcethe need for changing behaviour.The police reported that the term ‘wilful’ isa significant barrier to prosecuting casesof neglect, being very difficult to prove andcreating confusion amongst some officers.None of the police officers taking part infocus groups were aware that ‘wilful’ hadbeen legally interpreted to mean ‘reckless’by the Sheppard ruling (as described above).Instead, one officer described his practicalunderstanding of ‘wilfully’ in these terms:‘The ’33 Act relates to a time when somany children were neglected because ofpoverty, which is why they needed to include‘wilfully’. It’s not relevant today.’The police shared the frustrations of socialworkers about not being able to intervene,and that this is directed by the limitationsof the current offence because it does notinclude non-physical harm. As one officerput it, neglect can only be acted upon whenit has led to physical harm ‘like an accidentor a child burning itself’. 3333To some extent, the views reported at the focus groups demonstrate a misunderstanding of the current offence, inparticular where police officers did not recognise that it covers prospective physical harm.14.

The proposed offenceSocial workers welcomed the inclusion ofnon-physical abuse, particularly as a meansof encouraging the police to see the issue asa legitimate concern. As one person put it:‘Emotional harm has been ignored fortoo long, so it’s good to see it within theproposed law. It may be difficult to measurebut has to be in the law.’Regardless of whether a criminal prosecutionis pursued, social workers considered that aunified definition in criminal law, based on thecivil law, would help them in two key ways: 341. being able to warn parents anddemonstrate the seriousness of theirbehaviour; and2. allowing the police to collect evidencethat would be of use in child protectionproceedings, helping to improve thequality of evidence and speeding updecisions in care or other proceedingsin the family courts.Social workers welcomed the changeto ‘reckless’ from ‘wilful’, particularlybecause this would clearly protect parentswith significant learning difficulties fromprosecution (as described above).The police were strongly in favour of thealternative offence, particularly the changeto ‘reckless’, which would provide muchneeded clarity to officers. The change toencompass emotional harm was also warmlywelcomed, responding to current frustrationsat not being able to intervene unless anduntil physical harm occurs. Additionally,police commented that these proposedchanges would directly help in the trainingof new officers regarding child neglect.34In addition to the points raised by social workers, a clear view emerged from specialists in the advisory group thata unified definition across criminal and civil law would have the positive impact of speeding up access to specialisttherapeutic services for those children who have been identified as suffering a ‘criminal’ level of psychological and otherforms of abuse.15.

Fit with recent and forthcoming developmentsNew domestic violenceguidanceIn September 2012, the Governmentannounced that the definition of domesticviolence would be widened, with newguidance to recognise forms of emotionalabuse in domestic violence cases, as well asextending the current law to include youngpeople aged 16 and 17.The new definition recognises that patternsof behaviour and separate instances ofcontrol can add up to abuse – includinginstances of intimidation, isolation, deprivingvictims of their financial independence ormaterial possessions and regulating theireveryday behaviour. 35The UN Convention on theRights of the Child (UNCRC)The UK Government is due to report backon progress towards meeting its obligationsunder the UNCRC in January 2014. In 2008the UN Committee on the Rights of theChild identified a range of issues in the UK,including the ‘alarming’ high prevalence ofviolence, abuse and neglect of children,including in the home, and the lack of acomprehensive nationwide strategy to tacklethese problems. 36The new provision would bring the UK into agreater degree of compliance with article19of the UNCRC and articles 7(10) and 17 ofthe European Social Charter.The prospect of the new guidance is to bestrongly welcomed, but further exposes thefailure of the Children and Young PersonsAct 1933 to protect children under 16 fromnon-physical harm. Older young peopleand adults will now be protected from suchemotional abuse whereas children under 16still are not.35Women’s Aid, Government changes the definition of domestic violence to include coercive control and recognise 16/17year olds, http://www.womensaid.org.uk/domestic-violence-press-information.asp?itemid=2914&itemTitle=Government+changes+the+definition+of+domestic+violence+to+include+coercive+control+and+recognise+16%2F17+year+olds&section=0001000100150001&sectionTitle=Press+releases. Accessed 5 February 2013.36UN Committee on the Rights of the Child, Consideration of reports submitted by States parties under article 44 ofthe Convention: Committee on the Rights of the Child: concluding observations: United Kingdom of Great Britain andNorthern Ireland, (UNCRC, 2008).16.

Education Select CommitteerecommendationIn the Education Select Committee’s report,Children first: the child protection systemin England, 37 the Committee questionedwhether the 1933 Act defined neglecttoo narrowly and caused problems withprosecutions. It recommended that theGovernment investigate thoroughly whetherthe narrow scope of the definition containedin the Children and Young Persons Act 1933is causing problems in bringing criminalprosecutions for neglect. At the time ofwriting, the Government had not respondedto the specific recommendations in thereport, but the Secretary of State MichaelGove recently said, “Too many children areleft for far too long in homes where theyare exposed to appalling neglect andcriminal maltreatment”. 3837House of Commons Education Select Committee, Children first: the child protection system in England, (House ofCommons, 2012), http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeduc/137/13702.htm. Accessed 5February 2013.38Michael Gove, “The failure of child protection and the need for a fresh start”, speech given on 16 November 2012.17.

Avoiding criminalising vulnerable parents and carersIt is the view of the Advisory Group thatwhere there are concerns about child neglectthe vast majority of parents and carers canbe effectively supported to improve theirparenting, and that agencies must alwaysstrive to work in a child’s best interest, whichusually will require strenuous efforts to keepfamilies together.The proposed new offence seeks to protectthe most vulnerable children by capturingextreme cases of child neglect. It is notintended to criminalise vulnerable parentsand carers, including those who do nothave the capacity to change their behaviour.In these cases a social care response isrequired, which can mean removing childrenfrom their homes as a last resort and ifnecessary, so the criminal law would notbe appropriate. It is also important tostate that this proposed offence does notaim to prosecute parents who havedifficulty physically or financially providingfor their children.Under the current offence, the numberof detected criminal cases of neglectalmost trebled between 2001 and 2010 39 ,suggesting that the current offence is opento arbitrary and inconsistent interpretation,which cannot be good children, families oragencies working within child protection.The alternative offence proposed inthis report seeks to create a commonunderstanding by bringing the criminal lawdefinition of neglect in line with the civil law.This will enable professionals to work moreeffectively together to protect vulnerablechildren, and will remove barriers to takingeffective action. It is not intended to lowerthe threshold so that many more parentsbecome the subject of criminal proceedings.Whilst definitions will be aligned, it is rightthat the more stringent standard of proof forcriminal justice prosecutions remains.39Ministry of Justice, Criminal Justice Statistics :Quarterly Update to December 2010 (London, Ministry of Justice, 2011),Tables A4.4 and A4.5.18.

What safeguards exist?In any potential prosecution, using either thecurrent law or our proposed new offence, theCode for Crown Prosecutors requires thatevery case where there is sufficient evidenceto provide a realistic prospect of convictionbe subjected to a further test to seewhether it is in the public interest to pursuea prosecution. For example, if an individualis suffering from significant mental ill health,this is listed as a factor to be consideredagainst prosecution. 40 The public interestalso provides safeguards for individualsunder the age of 18, as a starting point, theyounger the suspect, the less likely it is that aprosecution is required. 41 The public interesttest also offers the CPS the opportunity toconsider whether it is in the best interestsof the child to prosecute a parent or carer(often requiring consideration of whether it isbest to keep a family together to safeguardthe child, and whether strategies can be putin place to improve parenting). We hope thatthe CPS would develop specific guidancefor prosecutors to govern their decisions oncases under the reformed offence.Alongside these existing safeguards,the proposed new offence also providesprotection for vulnerable parents throughthe use and interpretation of the term‘recklessly’. As explained above, we areusing the same interpretation of the term‘recklessly’ as identified in the Sheppard andR v G rulings, so where there is any doubtwhether the behaviour of parents or carerswas attributable to inherent incapacity tounderstand or change their behaviour, theywill not be prosecuted.Finally, existing sentencing guidance sets outthat consideration will be given to whetherthe sentence is in the child’s best interests,as well as any mitigating factors that shouldbe taken into consideration such as:• mental illness/depression;• inability to cope with the pressuresof parenthood;• lack of support;• sleep deprivation;• extreme behavioural difficulties in the child,often coupled with a lack of support; and• inability to secure assistance or supportservices in spite of every effort havingbeen made by the offender. 4240Crown Prosecution Service, “The Full Code Test”, http://www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.html. Accessed 5 February 2013.41Ibid.42Crown Prosecution Service, “Cruelty to a Child – sentencing manual”, http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/cruelty_to_a_child/. Accessed 5 February 2013.19.

Protecting victims of domesticabuse from criminalisationThe criminal law concerning domesticabuse contains some safeguards againstcriminalisation. Prosecutors are requiredto take the rights and interests of childrenand young people into account at allstages of domestic violence cases, 43with sentencing guidance on personalmitigation including the criterion of an‘offender [being] dominated by an abusiveor stronger partner’. 44The existing application of the lawconcerning child protection and domesticabuse has been criticised by those workingwith survivors of abuse for failing to addressthe responsibilities of the abusive parentand potentially unfairly penalising thenon-abusive parent, particularly if the latterfeels unable to leave the relationship. 45 It isnot appropriate to give a form of blanketexemption to victims of domestic violencefrom responsibility for child maltreatment,because they are not necessarily renderedincapable of protecting and caring fortheir children. Moreover, it is possible thata blanket exception for parents or carersattributing their failure to protect their neglectof their children to alleged violence againstthemselves would open up the possibility ofthe concoction of a defence.Under our proposed offence new CPSprosecutorial guidance is required, to providenecessary and adequate safeguards toidentify the real perpetrator of the harm tothe child, and to protect a vulnerable parent.Further frontline training is also required forpolice officers and prosecutors to identifyand understand the issues involved in thesecases, and we welcome the work currentlybeing done by the CPS in this area.43Crown Prosecution Service, “Policy for Prosecuting Cases of Domestic Violence”, http://www.cps.gov.uk/publications/prosecution/domestic/domv.html#a12. Accessed 5 February 2013.44Crown Prosecution Service, “Cruelty to a Child – sentencing manual”, http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/cruelty_to_a_child/. Accessed 5 February 2013.45L. Radford, R. Aitken, P. Miller, J. Ellis, J. Roberts and A. Firkic, Meeting the needs of children living with domesticviolence in London, (Refuge/NSPCC, November 2011).20.

Broader issues to beconsideredDuring discussions about the need for reformof the criminal law on neglect, a number ofassociated concerns have been raised byAdvisory Group members which are outsidethe scope of our current exercise, yetwarrant inclusion here as possible avenuesfor future consideration. These include:• The need for detailed guidance forrelevant agencies on the proposedoffence. We recognise that, as in allareas of child protection, professionaldiscretion will have to be exercisedin each case, but greater consistencyin decision-making can be achievedwhen that discretion is guided by aset of criteria which encourage thedecision-makers to consider the entirecircumstances of the family inascertaining what is in the best interestsof the child.• Whether criminal offences relating tochild maltreatment should apply toparents under the age of 18. Asdetailed above, our alternative childmaltreatment offence does not seek tochange the age of responsibility from thecurrent age of 16. However, concernswere raised about the particularvulnerability of parents and carersbetween 16 and 18, and the fact thatthis is reflected in the civil law definitionof childhood under the Children Act1989, extending fully to age 18.• The need for a systematic reviewof evidential rules and proceduresapplicable in the family andcriminal courts. It is vitally importantthat practitioners in each court ‘lookover the wall’ to the other court whichmay be considering the same allegationsof child abuse. In particular, issuesrelating to the sharing of informationbetween the two systems of justice,and third-party disclosure, requireurgent consideration.21.

ConclusionChild neglect is the most common formof child abuse in the UK. It causes bothphysical and psychological harm, andcan have life-long and life-threateningeffects upon children and young people.If unchecked in a particular case, it alsorisks escalation into very serious physicalharm and even death as recent high profilecases such as Connolly and Barker(‘Baby P’) tragically illustrated.Tackling the issue of child maltreatmentrequires not just effective interventions atlocal level and successful inter-agencyworking, but also that we get the frameworkstatutory regulation and guidance right, withcivil and criminal law that is clear, succinctand helpful to those charged with protectingchildren. To that end, section 1 of theChildren and Young Persons Act 1933 standsout as out-dated and indisputably unhelpful.The proposed alternative offence of childmaltreatment would recognise the full rangeof harm done to children who are neglected.It would replace the numerous antiquatedand obscure terms and definitions thatcurrently exist, and it would also align thecriminal law with the current civil law, offeringthe opportunity for clear, unified and efficientevidence collection and decision-makingacross the two jurisdictions. We stressthat our first and primary objective is tohelp families, and that we regard criminalprosecution as a last resort where otherinterventions have failed, or are likely to befutile. We as an independent Advisory Groupsubmit this carefully considered proposal tolawmakers for England and Wales.22.

This report has been compiled in consultation with a widerange of individual experts. Particular thanks are owed to:Naomi Angell, Co Chair of the Family Law Committee of the Law SocietyRuth Gardner, NSPCCRichard Green, CafcassLaura Hoyano, Hackney Fellow & Tutor in Law, University of OxfordLisa McCrindle, NSPCCGillian Rivers, Family Law SolicitorElizabeth Smaller, Criminal Law BarristerDavid Spicer, Barrister, BASPCANRachel Taylor, Departmental Lecturer in Family Law, University of OxfordDr Eileen Vizard CBE, Forensic Child & Adolescent PsychiatristHuw Williams, Associate Professor in Clinical Neuropsychology,University of ExeterProduced in association with Action for Children, February 201323.