My Lords, I wish to speak also to Clause 62 stand part.
Amendment 40BZA would introduce to this very good clause three additional small changes to the Children and Young Persons Act 1933. These are issues that have been raised with us by various children’s organisations, including Action for Children. The first part of the amendment seeks to probe the age to which a person may have responsibility for a young person. The Act currently applies to someone over the age of 16 who also has responsibility for someone “under that age”. The first part of this amendment therefore questions whether the responsibility should be for anyone under the age of 18, rather than 16, given that we have had numerous changes in the definition of children of late, and it varies from one bit of law to another.
The second element of the amendment would add the word “recklessly” after “wilfully”. This was contained in the Private Member’s Bill of my honourable friend Mark Williams MP in another place. Action for Children has suggested that we need to insert “recklessly” alongside “wilfully”. The introduction of “recklessly” would be in line with the interpretation of the 1981 Sheppard ruling, and with the interpretation of recklessness recently defined by the House of Lords in R v G. The term “recklessly” was identified in the Sheppard ruling as preferable to “wilfully”, which is considered difficult to interpret because it is unclear whether it applies to someone’s action or failure to act, or to their failure to foresee future consequences of their action or inaction. We suggest that “recklessly” is added to clarify this.
There can be a particular problem in cases of child neglect, which typically involve the failure to provide care, food, supervision, a safe environment and so on, so we need to cover foreseeing the future consequences of actions as well as the actions themselves. Adding “recklessly” also serves to protect parents and carers where there is any doubt that their action or inaction was due to mental incapacity or excusable ignorance of parenting skills. This is because, under the recklessness test, if there is any doubt that the behaviour of parents or carers was attributable to inherent incapacity to understand or change their behaviour, they will not be prosecuted. This would therefore protect them. “Recklessly” would also confirm the exclusion from liability of, for example, carers agreeing to high-risk medical treatment where there is no better medical option for a gravely ill child.
The final element of this amendment removes “unnecessary” from the requirement that the offence causes unnecessary suffering. The view of children’s organisations is that there is no unnecessary suffering that a person may cause, and that the term is antiquated and should be updated to a modern understanding. However, as my noble friend Lady Brinton has pointed out, certain suffering may be unavoidable; for example, where a child has suffered bereavement.
Perhaps the Minister will say whether the under-16 definition meets the modern understanding of what we mean by children. Would it not be better to cover all children to the age of 18? Why do the Government feel that “wilfully” alone is a better term to use than adding “recklessly”? Will they commit to looking again at this issue in the light of the enormous support that Mark Williams’s Private Member’s Bill had in another place? Will the Minister also say whether the term “unnecessary suffering” is clear enough in a modern context? Is there not a risk that this could prevent certain abuses from being prosecuted under the offence?
I shall also say a few words about the Question that the clause stand part of the Bill. We strongly support this clause, so tabling this Question is not about whether or not it should remain in the Bill, because it is a good clause. However, we have some questions about whether the new and welcome explicit reference to psychological harm will mean that other offences involving harm will now be read as referring only to physical harm. Specifically, offences related to domestic violence could potentially be undermined.
The intention of opposing the Question that the clause stand part of the Bill is therefore to ask the Minister to make a statement from the Dispatch Box that other offences will not be undermined by this welcome change; and to ask the Government to look again at whether it would be a positive step to amend other legislation to reflect psychological harm, in the same way as we are now affecting offences against children. Will the Minister confirm that this welcome change in Clause 62 will not have an adverse impact on including psychological harm within other offences, where it is not explicitly referred to—for example, domestic violence? I beg to move.