Appendix 2: Child cruelty guidelines—summary of consultation and responses
The consultation ran from 13 June 2017 to 13 September 2017. In addition to the consultation the Council has carried out research with judges to test the effectiveness of the guidelines and the likely effect on sentence severity. The results are being considered alongside consultation responses.
Background
There is an existing Child Cruelty guideline published by our predecessor body, the Sentencing Guidelines Council (SGC), in 2008. The Council has committed to revising all SGC guidelines in due course to bring them into the newer format used by the Sentencing Council which takes the user through a stepped approach to assess the seriousness of the offence.
The existing guideline is made up of a guideline for the offence of cruelty to a child and overarching principles on assaults on children. The Council made the decision to remove the overarching principles section when revising this guideline. This is because the existing definitive Assault guideline already considers some of the factors detailed, such as when a victim is particularly vulnerable, and the Council is planning to review the Assault guideline following its evaluation of that guideline that was published in October 2015.
The Council also decided to extend the scope of the existing Child Cruelty guideline, to include two further offences: causing or allowing a child to die or suffer serious physical harm, and failing to protect a child from the risk of female genital mutilation (FGM). Causing or allowing a child to die or suffer serious physical harm is an offence that is similar in its nature to the offence of cruelty to a child and so the Council felt it was appropriate to include such a guideline.
The Council has included the guideline for failing to protect a girl from the risk of FGM as FGM is a form of child abuse and it is an offence that applies solely to child victims (the other relevant FGM offences apply to victims of any age). This legislation was announced at the Girl Summit 2014, along with other measures designed to tackle FGM, and FGM remains a key topic across Parliament and Government. Due to the currency of such issues the Council felt it was appropriate to consult on such a guideline, despite there being no convictions to date for this offence.
Child Cruelty Offences
In 2016 there were 623 offenders sentenced for cruelty to a child contrary to section 1 of the Children and Young Persons Act 1933. Cruelty to a Child can be broken down into four separate types; assault and ill-treatment, neglect, abandonment and failure to protect. The factors included within this guideline therefore need to capture a wide spectrum of potential offending behaviour.
Under section 5 of the Domestic Violence and Crime Act 2004 it is an offence to cause or allow the death or serious physical harm of a vulnerable adult or a child. In 2016 there were 6 offenders sentenced for causing or allowing death and 23 for causing or allowing serious physical harm. For the offence to be made out, the prosecution does not need to prove whether the offender is guilty of causing harm or death, or guilty of allowing harm or death. One of the main purposes of this legislation was to address the problem that arises when a child or vulnerable adult suffers an unlawful death or serious physical harm and it can be proved that someone in the household caused it, but not which of them.
Section 3A of the FGM Act 2003 makes it an offence to fail to protect a girl from the risk of FGM. This means that if FGM is committed on a girl under the age of 16 then each person who is responsible for the girl at the relevant time is guilty of an offence. There have as yet been no convictions for this offence.
Summary of responses
The consultation asks specific questions about the approach taken in each of the three guidelines and invites comment on the application of the guideline to case studies. We received a total of 42 response from a range of organisations/individuals as follows:
|
Category |
Total |
Organisations |
Individuals |
|
Magistrates (inc Bench responses) |
9 |
8 |
1 |
|
Agencies in the Criminal Justice System (Youth Justice Board, CPS etc) |
6 |
6 |
0 |
|
Voluntary Sector |
4 |
4 |
0 |
|
Local Government (including three Safeguarding Children Partnerships) |
4 |
4 |
0 |
|
Individual members of the public |
4 |
0 |
4 |
|
NHS bodies |
4 |
4 |
0 |
|
Barristers |
3 |
2 |
1 |
|
Solicitors |
3 |
3 |
0 |
|
Police |
2 |
2 |
0 |
|
Crown Court judiciary |
2 |
2 |
0 |
|
District Judges (Magistrates’ Courts) |
1 |
1 |
0 |
|
Totals |
42 |
36 |
6 |
Most respondents answered questions on all three guidelines, though some commented only on either the Cruelty to a Child, and Causing or Allowing, guidelines or the FGM offence guideline. Responses highlighted similar concerns/views across both the Cruelty to a Child and Causing or Allowing offences, and some of these will be considered together as the definitive guidelines are developed post-consultation.
Cruelty to a Child (1933 Act offence)
Responses were generally supportive of the proposed guideline. There was broad agreement on equality of culpability between cases where the offender had carried out the cruelty and where they had failed to protect, with some caveats. The majority of respondents also agreed with the culpability and harm factors, though suggested some changes to wording and some additional factors. Key points from responses were:
1.Whilst 25 of the 34 respondents answering question 1 agreed with the approach of equal culpability for failure to protect offences, many respondents were keen to remind the Council of the need to take other factors into account which may lessen culpability; this is what the draft guideline intends. Seven respondents felt that there could be different levels of culpability within failure to protect, depending on the role which the offender had played, for example in actively encouraging or supporting the offender rather than simply failing to protect the victim.
2.Although sentencers are expected to be familiar with the need to balance culpability and harm factors in different categories to arrive at an overall category of seriousness, some respondents expressed concern that further guidance on how to do this was needed, particularly in cases where there was serious harm, and some culpability Category A factors were present but there were also several Category C factors, such as the offender being themselves a victim of Domestic Abuse. The Council will consider this alongside the outcomes of road-testing of the draft guidelines to assess whether further guidance is needed.
3.On ‘harm’, again there was broad agreement on the factors, but several respondents asked for further guidance on how to assess/interpret some factors, particularly those relating to psychological and developmental harm. Some of these will be covered by the revisions to the overarching “Seriousness” guideline, which is currently in development, and Council will consider whether any further guidance within the Child Cruelty guideline is needed.
4.Although based on current sentencing practice, several respondents felt that sentencing starting points and ranges were too low for the most serious (Category 1A) offences, and compared them with other, not necessarily analogous, assault offences. However, two respondents also suggested that at the other end of seriousness, the ranges for Category 3C were too high. Many respondents made suggestions relating to statutory maximum penalties for these and other offences, which are beyond the scope of this consultation.
5.There was broad agreement with the inclusion of most of the aggravating and mitigating factors, but some respondents asked for additional information on how to assess some of these, especially relating to victims who are particularly vulnerable. Respondents also suggested additional factors which will be considered, including where the victim is targeted, and where the offender has a professional role in caring for the victim (such as in a young offender’s institution or school).
6.There was also general agreement with the inclusion of the additional Step 5, an additional step added to be used in cases on the cusp of custody, to help sentencers in the application of R v Petherick in cases where the offender is the sole or primary carer for dependents. This is normally included as a mitigating factor, but it was felt that additional guidance was needed here as in the majority of cases the parent will be the primary carer for the victim(s) and/or other children. Whilst many supported the inclusion of this step, several questioned the need for the inclusion of the usual factor within the mitigating factors; Council will consider this and any necessary changes to wording.
Causing or Allowing (2004 Act offence)
Responses to consultation questions on this guideline were very similar to those for the Cruelty to a Child guideline, but there were some significant differences, and there were two additional questions for this guideline relating to vulnerable adults.
1.Of the 31 respondents to question 10, 24 agreed with the proposal to exclusively focus on child victims and not cover vulnerable adults. Of the 7 who disagreed, the three who gave reasons referred to the fact that the guideline should mirror the offence and cover vulnerable adults, and that in the absence of a guideline for vulnerable adults, judges would use the guideline for child victims anyway, so it should be drafted to cover both.
2.Of the 31 respondents to question 11, 26 felt that the Council should at least consider developing guidelines for offences committed against vulnerable adults, whilst 5 disagreed. However, in comments several respondents did not take into account the fact that the proposal was to cover a range of other offences, so there were very few suggestions for other offences to be covered.
3.Comments on culpability factors for this guideline were very similar to those for the Cruelty to a Child guideline. The differences mainly related to the particular problem in this offence of “failure to protect” cases where it could not be proved whether the offender had caused or allowed the harm, and the implications for assessing the level of culpability. This exacerbated the problems mentioned above relating to different types of failure to protect, and how to balance culpability factors.
4.In general, as this is a more serious offence than Cruelty to a Child, respondents were less willing to include something as a lower culpability factor or a mitigating factor.
5.Most respondents agreed with the approach to the assessment of harm. Three respondents suggested that some serious injury should be included in Category 1, but most agreed that this category should be reserved for cases resulting in death. Two respondents suggested the need to compare sentence levels and how harm was interpreted with the Cruelty to a Child offence, and we will take care to do this as sentence levels are considered post-consultation. As with Cruelty to a Child, there were several questions about how to assess harm, particularly long-term psychological or emotional harm which may be more serious with this offence.
6.Comments on aggravating and mitigating factors were very similar for this guideline as for Cruelty to a Child. Some respondents felt that mitigating factors should not be applied in Category 1 cases resulting in death, or should be applied differently.
7.Nine respondents felt that sentencing levels were too low, either in general or for the upper end, particularly upper end of culpability. As with Cruelty to a Child there were a few comments relating to statutory maximum penalties which are not part of this consultation. There were some helpful comments suggesting comparisons with manslaughter sentencing levels, and those for the Cruelty to a Child offence, and these will be taken forward as the guidelines are developed post-consultation.
Failure to protect a girl from the risk of FGM
In general, this guideline attracted fewer responses than the other guidelines in this consultation, and several respondents said that it fell outside their area of expertise. One respondent questioned why the Council was devoting time to this, as no cases have yet been prosecuted. However, there were several detailed responses from individuals and organisations with specialist knowledge in this area.
1.The majority of respondents agreed with the approach to assessing culpability and to most of the culpability factors. Specific comments included the need for more information on medium culpability, questions about what constitutes a warning or intervention, and how failure to respond to warnings, and other aspects of commission of the offence, may be linked with coercion and intimidation. There were also some comments that some factors (such as significant planning and involving others) don’t seem relevant to a failure to protect offence, however, other respondents supported the inclusion of these factors. Some respondents to this question and others appeared to be considering other FGM offences, rather than solely this failure to protect offence.
2.Respondents were divided on the approach to assessment of harm, with several saying that only one category was necessary, while a smaller number of others suggested that additional categories were necessary to take account of the WHO definitions of FGM. The majority, however, agreed with the approach. Several respondents asked for guidance on, or offered suggestions for, the definition of “particularly severe” harm, especially in relation to psychological harm.
3.On sentence levels, several respondents were concerned that the levels appeared too low, and made comparisons with other offences. Some of these will be considered in development of the definitive guideline, however, several of the other offences, such as GBH, are more akin to other FGM offences than to this particular offence in this guideline.
4.When considering aggravating and mitigating factors, several respondents felt that the “standard” factors were not really applicable to this offence, as it is a unique offence often committed by otherwise law-abiding people, and by parents who are otherwise loving and caring.
Equality and Diversity
Perhaps surprisingly, there were not many comments under this heading. There were some comments relating to FGM, and the Prison Reform Trust made several comments in response to specific questions throughout the consultation relating to the role of women in the commission of these offences and the difficult circumstances offenders can find themselves in.
Next Steps
The Council will discuss the responses to the consultation at its meetings in January, March April and May 2018 with a view to publishing the definitive guideline in October 2018 as time permits. However, this timetable may change if the Council considers that more time is needed to refine the proposals.
Published: 3 July 2018