The criminal law and child neglect: - Action for Children

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.