Committee (3rd Day)

Part of Serious Crime Bill [HL] – in the House of Lords at 3:45 pm on 15th July 2014.

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Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department 3:45 pm, 15th July 2014

My Lords, I am very grateful to my noble friend Lady Walmsley for moving her amendment, to the noble and learned Baroness, Lady Butler-Sloss—we are delighted to see her in her place, taking part in our debate—and to the noble Lord, Lord Ponsonby, for outlining their respective amendments. They have all brought extensive knowledge to this debate. We have missed my noble friend Lady Hamwee, who cannot be in her place this afternoon. I am sure the whole House wishes her well.

The amendments all relate to the scope of the offence of child cruelty in Section 1 of the Children and Young Persons Act 1933. Before I address the amendments, it may assist the Committee if I explain our approach in Clause 62. I am grateful for the general welcome which the clause has received. I am grateful, too, for the support of the noble Lord, Lord Rosser. Many of those welcoming the Bill spoke in support of the amendments. That I understand, and I will try to address their concerns.

The offence in Section 1 of the 1933 Act is committed when a person over the age of 16 who has responsibility for a child under that age wilfully assaults, ill treats, neglects, abandons or exposes that child in a manner likely to cause unnecessary suffering or injury to health, including any mental derangement. That is the law as it stands. The noble and learned Baroness, Lady Butler-Sloss, has been among those who have argued for some time—as she has pointed out, in her discussions with my right honourable friend Damian Green in his ministerial capacity and with me— that the offence of child cruelty in the 1933 Act lacks the necessary clarity when it comes to tackling psychological suffering or injury to children.

The Government’s view has been that the current offence already covers relevant behaviour which is likely to cause psychological suffering or injury. However, to ascertain whether there were any gaps in the law, officials at the Ministry of Justice engaged with the relevant experts in England and Wales at the end of last year. A ministerial round table on the issue was also held in October 2013.

Some of those who responded to the Ministry of Justice expressed concern that the offence of child cruelty might currently be restricted to physical harm. Others felt that some of the language in Section 1 was out of date—the noble Lord, Lord Elystan-Morgan, explained why some of it indeed dated back to Victorian times.

The Government’s conclusion in light of the responses received was that while the current law in Section 1 of the 1933 Act is still effective in that it covers cruelty likely to cause non-physical, as well as physical, harm and the courts are able to interpret it appropriately, it could benefit from further clarity.

Clause 62 will provide this clarity by making it explicit that the child cruelty in Section 1 of the 1933 Act deals with both physical and psychological suffering or injury and update some of the rather archaic language by replacing outdated references to “mental derangement” and the concept of “misdemeanour”.

My noble friend Lady Hamwee in tabling her amendments, and the noble Baroness, Lady Walmsley, in speaking to them, sought an assurance that introducing into Section 1 an explicit reference to psychological harm will not mean that references to suffering or injury in other legislation will be read as not extending to psychological harm—in other words, that there is no extension of the concept that we are seeking to put right here to other legislation. I can assure my noble friend that Clause 62 is intended only to clarify the meaning of suffering or injury in the context of Section 1 of the 1933 Act. It reflects the Government’s view that the term already includes, by implication, suffering or injury of a psychological nature. It is not intended to change any other statute by implication.

We have before us a number of further proposed amendments to Section 1 of the 1933 Act. The question for the Committee is whether the amendments made to that section by Clause 62 go far enough in delivering the necessary clarity in the criminal law on child cruelty. The amendments in this group are designed to test that issue. I know that Action for Children, which has campaigned assiduously for the reform of Section 1, has argued for further changes. I am grateful to that organisation and to the noble Baroness, Lady Butler-Sloss, for recently meeting the then Minister for Policing, Criminal Justice and Victims, my right honourable friend Damian Green, to discuss this matter further.

There is some overlap between Amendments 40BZA, 40BZB and 40BZC, particularly as regards the requirement that one of the prohibited acts in Section 1 of the 1933 Act is committed “wilfully”. I shall deal with that aspect of the amendments first, because it is important to understand the full implications of “wilfully”. I understand the intention behind amendment 40BZA to replace the reference to “wilfully” with the word “recklessly”. Amendment 40BZB retains the reference to “wilfully”, but seeks to define it as meaning,

“that a person with responsibility for a child foresaw that an act or omission regarding that child would be likely to result in harm, but nonetheless unreasonably took that risk”.

There is a well established body of case law that sets out the meaning of the term “wilful” in this context. Indeed, only last night an amendment to the Criminal Justice and Courts Bill tabled by the noble Baroness, Lady Finlay, included the word “wilful”. It is a widely understood legal term. It clearly provides, among other things, that the term “wilful” already implies an intentional or reckless state of mind. We are concerned that inserting a definition of “wilfully” into Section 1 of the 1933 Act would risk creating uncertainty in respect of the significant number of other existing offences subject to the “wilful” mental state; for example, the offence of wilfully neglecting a person lacking mental capacity under Section 44 of the Mental Capacity Act 2005.

The noble and learned Baroness, Lady Butler-Sloss, accepts that the meaning of “wilful” may well be established in case law, but argues that police officers, social workers and others do not really understand what the term means in the context of child cruelty. As I said, the term is accurately referred to in the Crown Prosecution Service and relevant police guidance. However, the Ministry of Justice is liaising with the Department for Education, the CPS and the police as to whether any updates or amendments to the relevant guidance would be necessary to ensure that the effect of Section 1 of the 1933 Act, as amended by this clause, is clearly understood and appropriately applied by front-line professionals. We feel that the concerns behind this aspect of these amendments would be best dealt with through guidance rather than in the Bill.

Amendment 40BZA, together with Amendment 40BZC, also seeks to amend the offence so that it applies to cruelty against a person under 18 rather than, as now, under 16. Young people aged 16 and 17 are lawfully able to be married and are generally deemed capable of living independently of their parents. Those under the age of 16 are generally more vulnerable and dependent upon those who care for them. For this reason, we believe that it is right that Section 1 of the1933 Act is focused on protecting persons under the age of 16.

I now turn to other aspects of Amendment 40BZB. The effect of proposed new subsection (4) would be to stipulate that two of the five “behaviours”, ill treatment and neglect, can be either physical or emotional in nature. I have made it clear that, in our view, non-physical ill treatment is already covered by the existing law. Should non-physical neglect also be so covered? The noble and learned Baroness, Lady Butler-Sloss, has explained her view that this would allow police and social services to intervene earlier in cases where they suspect emotional neglect of the child is occurring. However, in this context, the term “emotional” has no clear or settled meaning in law and is difficult to define. Some have already criticised the intention behind Clause 62—incorrectly, in our view—as being to criminalise relatively trivial emotional neglect, such as not buying a child the latest toy for which he or she is clamouring. I use that as an example of some of the criticism that the Government have come under in tabling Clause 62. Although “emotional neglect” would, if the amendment were accepted, have to lead to “serious harm” to constitute an offence—and the courts have long held that such suffering or injury must be more than trivial—accepting this part of the amendment might fuel such concerns. I would not want that to happen. That said, we will consider the proposal further before Report.

New subsection (5) would require the likely impact on the child constituting the offence to amount to “serious harm” or “injury to health” rather than “unnecessary suffering”. Harm is further defined by new subsection (6). Amendment 40BZA also addresses the issue, but it simply omits the word “unnecessary”. I am aware that some consider the reference to the term “unnecessary” as archaic and not relevant to modern times, although Amendment 40BZB defines harm broadly to include the impairment of,

“physical, intellectual, emotional, social or behavioural development”.

It seems to us that the overall impact of the amendment would be to raise the threshold of unnecessary suffering to serious harm. Although the noble and learned Baroness, Lady Butler-Sloss, has argued that it would be beneficial to raise the threshold in that way, because fewer parents would face trivial prosecutions, it seems to us that if serious harm were to be so interpreted by the courts, prosecutions could be harder to secure—and not just in trivial cases. There is a risk that the effectiveness of the offence would, in turn, be undermined. However, that the main purpose of the law is to protect children and we are not convinced of the need to amend that aspect of Section 1 does not mean that we will not consider those suggestions further.

I think that I have addressed the question of my noble friend Lady Walmsley. As for the question of the noble Baroness, Lady Meacher, about drugs and culpability, whether someone under the influence of drugs is capable of behaving recklessly is a difficult issue, which would depend on the circumstances of the case. It may not be appropriate to stipulate that in guidance, but I agree that where child cruelty arises as a result of drug dependency, support services need to be able to address that. I accept that; I think that that runs through the debates that the noble Baroness and I have on drug issues. It might be worth me writing yet again to her on that issue, because it is an interesting area of policy, and I will copy everyone else in on that.

The noble Earl, Lord Listowel, mentioned the difficulty of providing help to people who are vulnerable in that regard. He is right to do so. The Government very much understand that that is one difficulty that one has in the whole area of child neglect: the parents themselves have often suffered neglect in their childhoods. His point was well made. The noble Baroness, Lady Howe of Idlicote, the noble Lord, Lord Elystan-Morgan, to whom I have already referred, the noble Baroness, Lady Howarth of Breckland, and the right reverend Prelate the Bishop of Durham all spoke generally in support of what the Government seek to do but also felt that we ought to consider the contents of the amendments.

I would like to talk about a particular aspect that perhaps goes back to the portrait of the past painted by the noble Lord, Lord Elystan-Morgan; going way beyond that auspicious year of 1933, back to the Victorian 1860s, with the proposal to remove subsection (2)(b) of section (1) of the 1933 Act. That subsection paints a tragic picture. It might be a scene from Hogarth’s famous print “Gin Lane”; someone going to bed drunk and unknowingly suffocating a child who shared that bed. The subsection makes it clear that if a child under the age of three dies in those tragic circumstances the offence of child cruelty has been committed. The subsection may seem anachronistic and redundant, but sadly children can still die in those sorts of circumstances today. This clarification might be useful to police and prosecutors. Indeed, to remove it might cast doubt on whether the child cruelty offence is still applicable in that situation. However, the Government will think again about whether the subsection needs to remain on the statute book.

I hope I have shown by the tone in which I have addressed the amendments that the Government take seriously the points raised by noble Lords. I have indicated that we will be considering some matters further. I cannot commit to bringing forward any government amendments to Clause 62 on Report, but equally I am not ruling out that possibility. In the knowledge that over the summer—we have the advantage of long gap in which we can consider these matters before Report—we will reflect very carefully on all the points have been made in this debate, I hope that my noble friend will be content to withdraw her Amendment 40BZA and will support, as indeed I am sure she will, Clause 62 standing part of the Bill.