New Clause 3 - Child maltreatment

Crime and Courts Bill [Lords] – in a Public Bill Committee on 12th February 2013.

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‘Section 1 of the Children and Young Persons Act 1933 (Cruelty to persons under sixteen) is hereby repealed and replaced as follows—

“1 Child maltreatment

(1) It is an offence for a person with responsibility for a child intentionally or recklessly to subject that child or allow that child to be subjected to maltreatment, whether by act or omission, such that the child suffers, or is likely to suffer, significant harm.

(2) For the purposes of this section:

(a) ‘recklessly’ shall mean that a person with responsibility for a child foresaw a risk that an act or omission regarding that child would be likely to result in significant harm, but nonetheless unreasonably decided to take that risk;

(b) ‘responsibility’ shall be as defined in section 17;

(c) ‘maltreatment’ includes—

(i) neglect (including abandonment),

(ii) physical abuse,

(iii) sexual abuse,

(iv) exploitation, and

(v) emotional abuse (including exposing the child to violence against others in the same household);

(d) ‘harm’ means the impairment of—

(i) physical or mental health, or

(ii) physical, intellectual, emotional, social or behavioural development.

(3) Where the question of whether harm suffered by a child is significant turns on the child’s health or development, that child’s health or development shall be compared with that which could reasonably be expected of a similar child.”.’.—(Paul Goggins.)

Brought up, read the First time, and motion made (this day), That the clause be read a Second time.

Photo of Martin Caton Martin Caton Labour, Gower 2:00 pm, 12th February 2013

I remind the Committee that with this we are discussing amendment 72, in title, line 6, after ‘driving’, insert

‘to amend the law relating to children and young persons;’.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I am grateful for that welcome, Mr Caton. I was actually being challenged by my hon. Friend the Member for Birmingham, Selly Oak not so much to probe but to pursue Ministers on new clause 3, and although I may lack the legal experience of some who put their name on the new clause, I hope that I will be able to do that.

The new clause deals with a substantial concern, which is shared by both sides of the House, as is evident from the names on the new clause, including my hon. Friend the Member for Darlington. The Committee should make no mistake: this would be a major change in the law and would change legislation that has been on the statute book for 80 years. When a shared concern is coupled with a major change in the law, it is right to seek engagement and discussion with Ministers and to consider such things carefully and with outside experts as well as Members of Parliament. If the Minister says that new clause 3 does the trick and he is happy to accept it, I would be delighted, but if he says there is food for thought that he would like to debate and discuss further both with hon. Members and with experts from outside, I would be equally pleased.

There are strong arguments for change. There is a need to modernise and to update the legislation on child neglect. As I mentioned, the current law was set in statute in the Children and Young Persons Act 1933, but that legislation was based on an Act from 1868. If we are still applying in 2013 definitions that applied in 1868, with all that we now know about child neglect, it may suggest that the definition has stood the test of time, but we should at least examine it.

One thing that we suggest in new clause 3 is to replace “unnecessary suffering” with “significant harm”. That is not just about changing the words; it reflects a fuller and wider understanding of what constitutes child cruelty and neglect. It is understandable that in Victorian England when poverty was widespread, and even in 1933 when the current definition was put into law, neglect was understood by Members of Parliament, professionals and the courts as predominantly physical. These days, however, we know that a child, who by the standards of the 1930s may not be materially neglected, may be neglected emotionally or psychologically, and the law needs to take account of that. The 1933 Act refers to

“loss of sight, or hearing, or limb, or organ of the body”.

It is a physical understanding of harm, rather than the wider definition that we propose in new clause 3.

A helpful report was published last week by a panel of experts gathered together by Action for Children—an excellent children’s organisation, from which hon. Members of all parties receive briefings and with which many Members are involved in local projects and initiatives. Page 3 of the report includes three examples from recent serious case reviews of the wider understanding of what constitutes harm, such as

“parents knowing that their child had consumed a drug and not seeking timely medical assistance, resulting in death; children in the care of an intoxicated parent who died as a result of an accident, which could have been avoided had they been supervised; and a child with poor attachment to their mother witnessing domestic violence and subsequently going on to commit a serious sexual assault.”

I am not saying that we did not have domestic violence, intoxicated parents or drug misuse in the 1930s and before, because we may have done. I am arguing that the definition of neglect in the 1933 Act does not fully take such neglect and abuse into account. The consequences can be horrific; the third example I quoted referred to a child witnessing domestic violence and going on to become a perpetrator of domestic abuse and sexual violence themselves.

It is my contention that we need a wider definition in legislation.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I do not know whether my right hon. Friend is drawing to a close, but in the event that he is, let me press the point that the Clerks have made it clear that the Bill, which my right hon. Friend previously referred to as a Christmas tree Bill, is the perfect vehicle for making this change, and there are precious few other opportunities in the parliamentary schedule to do so. If this is a pressing matter, it is incumbent on the Minister to do something about it now. I urge my right hon. Friend to seek from him an assurance that if he will not accept the new clause, he will at least agree to reflect on the detail, with a view to introducing an appropriate provision on Report.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I will indeed press the Minister on that. I am very hopeful, not least from conversations I have had with him, that he wants to engage on this issue. I am not putting words in his mouth about accepting the new clause, but I think that he understands the importance of the issue and, from indications he has given so far, that he is prepared to engage on it. I therefore look forward to what he will say shortly. My hon. Friend is right that on an issue such as child neglect, none of us should sit on our hands if there is an opportunity to improve the law and, therefore, the protection of children.

I hope I do not disappoint my hon. Friend when I say that I have not quite got to the end of my remarks, but I shall try not to detain the Committee too long. Another issue on which I would be interested to hear the Minister’s comments is that there seems to be a growing disparity between the civil and criminal definitions of child neglect. That is leading to serious difficulties, and the issue was covered in the report by the expert panel that Action for Children brought together. Social workers and family courts are interpreting child neglect in a broader way and including, for example, children’s psychological needs and emotional harm done to children, whereas the police look more to the criminal law and may sometimes be slightly cautious and anxious about intervening. Indeed, the expert panel says of the consultations it carried out:

“The main concern raised by social workers was that the current offence limits the extent to which Police are able to respond in cases of non-physical neglect. They reported that police generally only intervene when there is tangible physical evidence”.

If we have a creeping gap between what the police interpret as neglect and what the courts and social services interpret as neglect—nobody is criticising them for that, because they are working to different codes—it is incumbent on the Government and Parliament to try to achieve some clarity and consistency.

There is also a need to update the law to reflect the 1981 Sheppard ruling. Those who are versed in the law will understand the significance of that. My understanding is that the ruling exposed the limitations of the word “wilful”, which is the word used in the 1933 Act. The ruling dealt with the lack of clarity as to whether “wilful” applies to the action or lack of action taken by a parent or carer, or, rather, to their failure to foresee the consequences of that action or inaction. It made it clear that the word had to apply to both the understanding of the potential consequences and the decision to go ahead and take the risk by acting in a particular way. It is therefore important to update the law to reflect the Sheppard ruling and also to enable the Crown Prosecution  Service and the courts to have greater clarity in relation to those cases in which a parent or carer may lack the mental capacity to understand the consequences of their action. Clearly, if parents or carers understand and they go ahead and something serious happens, they deserve the full force of the law being brought down on them, but obviously in cases in which parents lack the intellectual or emotional capacity to understand the consequences of their action or inaction, they need help. The new definition that new clause 3 presents would help the courts, the CPS and the agencies that want to intervene to do so on stronger grounds.

I assure the Committee that it is not in the mind of the drafters of new clause 3 to criminalise every parent or have every parent hauled in front of the court if there is any suspicion of child neglect. The latest estimates that I have seen suggest that 1.5 million children may be being neglected to one extent or another. We need an approach that, yes, has the law and the force of law at one end, but has interventions from other agencies right the way through, so that people who have a particular lack of capacity or understanding can have that skill developed, perhaps by an intervention from an organisation such as Action for Children or a social services agency. It is important that we get the appropriate help to parents, and I think that clarity in the law would assist agencies in doing that.

In conclusion, if we look at new clause 3, there are just three words to emphasise. The first is “recklessly”. I have explained that we want the word “reckless” to replace the word “wilful” in a way that reflected the Sheppard ruling. Secondly, the new clause defines what we mean by “maltreatment”. It is a wider definition—not just physical harm, but emotional abuse. New clause 3 makes that absolutely clear. It is also crystal clear, towards the end of the new clause, that “harm” means the impairment of physical or mental health, or physical, intellectual, emotional, social or behavioural development. That makes it absolutely clear that we are taking a wider view.

I hope that is a helpful introduction to new clause 3. I very much look forward to what colleagues will say, and obviously to the Minister’s response.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

It is a pleasure to be able to support the new clause. I can sum up in four reasons why I think that I should do that. First, the current law is clearly out of date. The issue of emotional neglect needs to be reflected in the law. We know far more now about child development and the impact of neglect over long periods than we ever could have done in the 1930s. Also, emotional neglect and non-physical violence are now recognised in the law when it comes to adults and domestic violence. That is quite a recent change, and it seems a little odd that the same protection is not afforded to children. It should be noted that the new clause has cross-party support and that the issue is of great concern to people outside Parliament, too.

The hon. Member for South Swindon (Mr Buckland) obviously tabled the new clause as a coalition Back Bencher. I have worked with him in the past on issues such as stalking and I have huge respect for him. The new clause is also in the names of the hon. Member for Enfield, Southgate and my right hon. Friend the Member for Wythenshawe and Sale East. I found the way in  which my right hon. Friend just explained the need for the new clause very persuasive. I hope that the Minister is also of that mind.

Neglect is a very serious and, upsettingly, prevalent issue. I know from my role as lead council member for children’s services in my constituency before being elected to the House just how common it can be as a form of child abuse. The term “neglect” not only covers abandonment and physical maltreatment but, importantly, includes cases of emotional neglect, which we know can be critically damaging to children and can have long-lasting effects, well into adult life. It therefore seems pretty obvious that the law as it stands is in need of re-examination, as it has not been updated for many years and does not afford proper protection to children at risk of maltreatment.

Our understanding of neglect has thankfully developed hugely since the 1860s and since the 1930s when the current law was framed. The problems with the current law are several. It does not recognise emotional neglect as an offence and the language is outdated and ill-defined. Things have moved on an awful lot since the law was passed, making it difficult to prosecute offences and hard to defend vulnerable children. Civil law already recognises the full range of physical and emotional harm and is at odds with the outmoded criminal law, making it harder for the police and social services to navigate cases together. As I mentioned previously, it was welcome when guidance was announced for the prosecution of domestic violence cases, which for the first time now allows non-physical harm of a victim to be recognised as a criminal offence. If new clause 3 is not adopted, that leaves us in a situation where we are prepared to offer protection against emotional abuse to victims over the age of 16, but not to children, which seems odd.

New clause 3 has been cannily drafted and effectively updates the law, incorporating emotional maltreatment and bringing criminal law on child neglect into line with other statutes. We need the law to be fit for purpose. I recognise that there are concerns regarding the undesirable effect of criminalising vulnerable parents, but that has been taken into account, as my right hon. Friend the Member for Wythenshawe and Sale East made clear in his remarks, in the drafting of the new clause, which specifies that the offence is a reckless—which is clearly defined—act of neglect or omission of care.

It is evident from this Committee and from the names on the new clause that the matter is of concern and that progress is needed. That view is shared by many from all parts of the House. If the Minister feels unable to commit the Government to including the new clause at this stage, we strongly urge him to meet colleagues with an interest in the matter and to reassure us that the Government intend perhaps to bring something forward on Report. That would be well received by members of the Committee and those with an interest from outside Parliament. I look forward to hearing the Minister’s thoughts in response to the new clause.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice 2:15 pm, 12th February 2013

I am not sure whether I am being probed or pursued, but either way, I am happy to acknowledge at  the outset of my remarks that the issue is serious and important and that it clearly engages colleagues on both sides of the House. It is extremely worth while for the Committee to engage in this subject, and we will continue to do so in the coming months.

I am aware of the concerns raised by Action for Children in its report published last year. I want to thank Action for Children not only for its work on this issue, but for its continuing engagement with officials in discussions about the best ways of tackling this important issue. I am also grateful to the right hon. Member for Wythenshawe and Sale East for moving the motion in the absence of my hon. Friend the Member for Enfield, Southgate.

It is clearly not a matter of debate that the ill-treatment of children, whether physical, emotional, sexual or through neglect, can have major, long-term, damaging effects on all aspects of a child’s health, development and well-being. The Government are committed to doing everything they can to support children to grow up in a safe environment, and thereby achieve their full potential. To that end, we are seeking to address the concerns that Action for Children raised. I know that my colleagues at the Department for Education are continuing to work to shift the focus on to earlier intervention, recognising that the earlier help is given to vulnerable children and families the more chance there is of turning lives around and protecting children from harm. Early intervention is often the key to addressing problems to prevent them escalating, thus protecting vulnerable children from neglect and cruelty.

As many on the Committee know, Action for Children has made recommendations in respect of the existing offence of child cruelty, the focus of this new clause and amendment, as set out by the right hon. Gentleman and the hon. Member for Darlington. They want to remove section 1 of the 1933 Act and in place propose an offence of child maltreatment, which would apply to conduct that impairs or is likely to impair the health or development of a child. I readily acknowledge that the new clause is well-intentioned. To accept the new clause, the Committee would need to be persuaded that the existing offence is no longer fit for purpose and to have a clear picture of how the new offence might work in practice.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

On that point, I have a question for the Minister. I understand that the CPS has indicated support for the measure. Prior coming to Committee, did the Minister or any of his ministerial colleagues have any contact with the CPS? That might help us.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

If the hon. Gentleman can hold his hand for a bit, I am about to come to the CPS view. As he would expect, I and my colleagues, and certainly the Attorney-General’s office, are in constant contact with the CPS. This matter is one of many we discuss. We need to be persuaded of two things: one, that the existing offence no longer works and, secondly, how a new offence would work in practice.

The offence of child cruelty under section 1 of the 1933 Act already covers a wide range of behaviour. The offence is committed where any person over the age of 16 with the responsibility for a child

“wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him 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)”.

I accept that some of the language in the 1933 Act may now be considered old-fashioned. However, it is difficult to point to maltreatment, which should be subject to the criminal law, that is not caught by the existing offence. Terms such as “ill-treatment” and “neglect” can be—and are—interpreted quite broadly by the law enforcement agencies and the courts. Crucially, given the important point made by Opposition Members about emotional abuse, which is not specifically mentioned and is one of the developments in child psychology that has emerged in the intervening 80 years, the courts have applied the provisions to cover serious forms of emotional abuse.

Moving on to the CPS, its current guidance provides:

“To assess seriousness, the precise nature of the offence must be established before considering factors such as the defendant’s intent, the length of time over which the cruelty took place, and the degree of physical and psychological harm suffered by the victim.”

So the CPS guidelines explicitly refer to psychological harm. The CPS told us that it is not aware of any evidence that the current law is a barrier to prosecutions. In addition to the CPS guidance, the sentencing guidelines make it clear that for the purposes of the offence,

“‘neglect’ can mean physical and/or emotional neglect”,

so the sentencing guidelines deal with the point that is at the heart of the new clause, which is that the old-fashioned language in the 1933 Act is not fit for purpose in the modern age. As I said, that is what the CPS is telling us.

However, we are clear that we must not underestimate the importance and seriousness of the issue of child neglect. We must be confident that we have a legislative framework capable of providing support and early intervention to those parents who need it, and, as a backstop, workable criminal offences capable of addressing serious child neglect.

The right hon. Member for Wythenshawe and Sale East and I will shortly be meeting, along with my hon. Friend the Member for South Swindon, Baroness Butler-Sloss and representatives of Action for Children. Obviously, we will be discussing these issues in much more detail. Before and after that meeting takes place, my officials will continue to work with Action for Children to consider any evidence it has that the current law is not working. Obviously, that examination will continue, and until we have got to the bottom of this, I should be grateful if the right hon. Gentleman would agree, on behalf of my hon. Friend the Member for Enfield, Southgate, to withdraw the new clause.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I will withdraw the new clause, because our intention is to have a meeting of minds here. I am encouraged by what the Minister has said, but only so far. I take his point that the courts can interpret legislation over time so that what appears to be old-fashioned language can have an up-to-date and modern meaning. I accept that point, but there has to be a limit to that. There has to come a point at which a fresh look is needed. I simply say this. The Sheppard ruling is an important ruling that has implications for the word “wilful”, which is in the existing legislation. There are strong grounds to believe that that needs to be amended.

My hon. Friend the Member for Birmingham, Selly Oak referred to the view of the CPS. Its most recent view on this issue must be taken fully into account. Again, it argues that now is the time to make the change.

The expert panel that Action for Children brought together reported last week. We must look very carefully at the findings of the members of that panel. They are very experienced practitioners. They make the point about the need to bring the civil code and the criminal code together, because at the moment local authority social services are using a different definition of neglect from the one that the police sometimes use. That is very serious. If we are to prevent some of the horrendous cases that we know about from happening, we must have early intervention and every agency must have the confidence to intervene early.

Finally, if someone with all the experience that Baroness Butler-Sloss has as a former and highly experienced judge—indeed, President of the family division of the High Court—has come to the conclusion that now is the time to change the law, that view should count very highly indeed. I am delighted that the Minister has said that when we meet, she will be with us and we will be able to take her experience into account. I look forward to further discussions with the Minister. I think that his intentions here are perfectly proper and positive and I hope that when we come to Report, we will have something to show for this debate. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.