Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 58

XA165/14

Lord Justice Clerk

Lord Malcolm

Lord McGhie

 

OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK

in the Appeal by Stated Case

under section 163 of the Children’s Hearings (Scotland) Act 2011

by

(FIRST) JM, and (THIRD) SARA MATHIESON, Curator ad litem

Appellants;

against

LOCALITY REPORTER, GLASGOW

Respondent:

Act: J Scott QC, Aitken; Drummond Miller LLP (First Appellant)

Act: Moir; Balfour & Manson LLP (Third Appellant)

Alt: Moynihan QC; Anderson Strathern LLP

15 July 2015

Introduction
[1]        The main issue in this appeal is whether the sheriff was correct to find grounds for the referral of children established, by reason of “wilful” ill-treatment by their father, the first appellant, in terms of section 12 of the Children and Young Persons (Scotland) Act 1937.  The sheriff held that it was sufficient that the first appellant’s actions, in lifting each of the infant twins in a particular manner with one hand, had been deliberate and that this was likely to, and in fact did, cause the children unnecessary suffering and injury.  The sheriff followed Clark v HM Advocate 1968 JC 53, in which the High Court of Justiciary determined that the fact that a person did not intend to cause suffering or injury was irrelevant.  The first appellant, founding upon dicta from the House of Lords in R v Sheppard [1981] AC 394, maintained that such intention, or alternatively recklessness, was required.  The sheriff added that he would have reached the same decision had he followed R v Sheppard, since the first appellant had either been aware that his actions would cause unnecessary suffering or injury or did not care one way or the other whether they did.

[2]        A related dilemma arises.  When a person is convicted of having committed an offence under section 12 of the 1937 Act, the court may (Criminal Procedure (Scotland) Act 1995, s 48) refer the relevant child or children to the principal reporter.  In so doing, it may “certify that the offence shall be a ground established for the purposes of the Children’s Hearings (Scotland) Act 2011”.  No criminal conviction arises in this case.  However, where there is a conviction based upon Clark, which the criminal courts must undoubtedly follow, the grounds may be certified as established.  If there is no conviction, if the civil courts do not follow Clark, there is a distinct prospect that grounds, proceeding on identical proven facts, will be held not be established.

 

The grounds of referral
[3]        On 1 August 2014, the sheriff at Glasgow determined that grounds under section 67(2) of the Children’s Hearings (Scotland) Act 2011 had been established in respect of the first appellant’s four children.  They were established in relation to each of the twins because the twins were “(a) … likely to suffer unnecessarily … due to a lack of parental care” and “(b) a schedule 1 offence [had] been committed”.  The schedule 1 offence was the wilful ill-treatment of the twins under section 12 of the 1937 Act.  The establishment of the grounds in respect of the two older children were consequential upon the findings in respect of the twins (2011 Act, section 67(2)(d)).

[4]        The twins, who were aged 1 year at the date of the proof, had sustained numerous fractures to their ribs.  The boy had six and the girl had nine.  The fractures were found to have been caused by inflicted injury “involving a significant degree of force or pressure”, caused by the first appellant lifting each of them using one hand; something which he did frequently.  The sheriff found in fact that:

“(27)    Inflicted injury, involving a significant degree of force or pressure, was the cause of the rib fractures to both [A] and [M]. 

(28)      [The first appellant] frequently lifted [A] and [M] using only one hand.

(29)      He lifted each of them in this manner intentionally and deliberately and in doing so wilfully ill-treated both [A] and [M] 

(30)      [The first appellant’s] lifting and carrying of [A] and [M] was likely to, and in fact caused them unnecessary suffering and injury to their health.

(31)      The rib fractures to [A] and [M] were caused by [the first appellant] lifting each of them using one hand…

(36)      In May 2014, [the first appellant] carried two of his children at the same time, using only one hand for each.  He was challenged by a support worker about carrying his children in this way.”

 

[5]        The case was remitted by the sheriff to the principal reporter to make arrangements for a Children’s Hearing to determine whether compulsory supervision requirements ought to be made.  Both parents appealed to this court (2011 Act, s 163(1)(a)(i)), although the mother no longer insists in her appeal, apparently because of a lack of legal aid. 

 

The questions of law and the evidence
[6]        Twelve questions of law were formulated in the original stated case.  Five are no longer insisted upon (viz. question 1 for the respondent, and questions 9 – 12 for the third appellant).  The remaining questions, as reformulated of consent at the commencement of the hearing, were:

“(2)      Did I err in law in holding that it is unnecessary to prove awareness of, or recklessness as to, the likelihood of causing suffering to a child in order to find established an offence of wilful ill-treatment under section 12 of the Children and Young Persons (Scotland) Act 1937?

 

(3) and (4) In the event that the answer to question 2 is in the affirmative, was I entitled on the facts found to infer that [the first appellant] was aware that his actions in lifting [A] and [M] were likely to cause [A] and [M] unnecessary suffering or injury to health or unaware due to his not caring whether this was the case, as opposed to his stupidity or ignorance?”

 

In addition, the court was asked whether, as a generality, the sheriff had been correct to find grounds based on lack of parental care established in terms of section 67(2)(a) of the 2011 Act (questions 5 and 6). 

[7]        The sheriff made certain observations on the rib fractures.  He noted (at para [24]) that the first appellant had “accepted that these fractures had to be due to his handling of the children in the absence of any other explanation”.  He described the first appellant’s practice of picking up either of the twins using only one hand as follows:

“[24]    … He described picking up [A] from his bouncy chair.  On this, [A] lay flat and was secured by straps round his waist, meeting at the front where they clipped together along with a strap travelling upwards from between [A’s] legs.  [He] described holding [M] on his hip with one arm and with the other hand he would unclip the straps, put his hand under [A’s] right side, move his hand under [A’s] back to [A’s] left side under his left armpit and to the area of his ribs.  He would then lift [A].  He agreed that the pressure placed on [A] had to be through the baby’s body from front to back.  The child was then wedged between [his] body and his arm.  When he was asked what was stopping [A] from falling, his reply was ‘suppression into the waistband’.  He explained that this meant pressure onto the baby through the chest.  It was his evidence that he frequently picked up both [A] and [M] by this method.

[25]      He agreed that he had picked up [A] by this method on 4 June 2013 when Pamela Parker, the health visitor, was present.”

 

The sheriff found (para [28]) that the first appellant was in the habit of lifting each baby using one hand in the manner described.

[8]        The sheriff accepted the evidence of Dr Sarah Hill (para [16]), consultant paediatrician, that: “inflicted injury” was the likely cause of the fractures; an infant is “more pliable” than an adult; and a “compressive force” was needed to fracture a rib.  If the fractures had been caused by rough handling, it would have had to have been “very rough handling”.  Dr Hill would not pick up an infant using only one hand for several reasons (para [18]).  A child of the age of the twins had no control over his head and neck, which needed to be supported.  It was not an appropriate way to handle an infant.

[9]        The sheriff also accepted the evidence of Dr Wilkinson, consultant paediatric radiologist (para [20]), that the rib fractures were likely to have been inflicted and that “major forces were required”.  Dr Wilkinson had never seen a rib fracture subsequently attributed to heavy handling.  The handling required would need to be “totally outwith normal handling”.  A lot of force would be required as a baby’s limbs are pliable (para [21]).  It would require compression of the chest, causing the rib to bend to the point when it would break.  The necessary compression would be by an adult “using full strength of hand to compress the chest”.  It was possible, by lifting a child with one hand, to create so much pressure that the ribs of the child would break, although Dr Wilkinson considered that it was “highly unlikely” that the fractures had been caused in the manner described by the first appellant.  The most likely cause of the fractures was trauma inflicted by an adult in two or more episodes. 

[10]      In the light of the evidence of Drs Hill and Wilkinson, a statement of the health visitor, and the evidence of the first appellant, the sheriff was satisfied “that the cause of the fractures was the way in which [the first appellant] picked up [A] and [M]” (para [30]).  The sheriff concluded (para [50]) that the twins were likely to suffer unnecessarily or their health and development likely to be seriously impaired due to the lack of parental care.  He took into account the evidence of the first appellant that it was still his practice to carry two children using one hand for each, although he had been challenged by a support worker about this.

[11]      On the issue of wilful ill-treatment, the sheriff followed Clark v HM Advocate (supra).  “Wilfully” meant that it was the act which had to be deliberate and intentional, as opposed to accidental or inadvertent.  There was no requirement to prove an intention to cause suffering.  No criticism had been made of the reference to Clark in FB v PF, Aberdeen 2014 SCCR 530.

[12]      Had he been required to follow R v Sheppard (supra), the sheriff would still have found that the offence had been committed on the basis that the first appellant either: (i) had been aware that lifting and carrying the twins, in the manner that he did, involved a risk of suffering or injury; or (ii) did not care whether it posed such a risk or not.  The sheriff concluded that:

“an adult lifting a child of about 12 weeks, using only one hand in the manner described, demonstrates utter disregard for the safety of the child”.

 

[13]      On lack of parental care for the twins (questions 5 and 6; 2011 Act, s 67(2)(a)), the sheriff inferred from the past inflicted injuries to the ribs, and the first appellant’s continuing practice of using only one hand to lift each twin, that it was likely, at the time of the proof and in the future, that they would suffer unnecessarily, or their health and development would be seriously impaired due to a lack of parental care.  He concluded that there was a prospective risk of the twins suffering unnecessarily or being so impaired “solely on this basis”. 

[14]      Questions 7 and 8 were whether the sheriff had erred in failing to delete, from the grounds of referral, statements of fact regarding the birth of the middle child and her parents’ failures: to visit her regularly in hospital; to attend various health appointments; and to allow home visits to monitor her health.  They also included reference to rent arrears and domestic violence.  The basis for the first appellant’s argument was the sheriff’s findings that the rent arrears had been remedied, the domestic violence had been of little or no consequence, the eldest child was safe and adequately cared for by her parents, and the failure to visit the middle child in hospital was not likely to have affected bonding or the parents’ ability to deal with her needs.  There was a likelihood of unnecessary suffering or serious impairment from a lack of parental care only in relation to the infant twins (question 7).  The final question was whether the sheriff had erred in failing to delete statements about the discovery of fluid in [M]’s subdural space on 5 June 2013, and of bruising to [A] on 4 June 2013, standing the sheriff’s conclusion that those injuries had not been proved to have resulted from ill-treatment or criminal conduct (question 8). 

 

Submissions
The first appellant
(i)         Wilful ill-treatment (questions 2 – 4)
[15]      The first appellant submitted that the offence of wilful ill-treatment under section 12 of the 1937 Act required proof that the perpetrator had been either aware that his actions would cause unnecessary suffering or injury to health or had been unaware on account of his recklessness (R v Sheppard (supra)).  The word “wilfully” governed and qualified all of the verbs in section 12.  The likely consequences formed part of the “actus reus” of the offence (see, eg, s 12(2)).  The necessary “mens rea” required an intention to commit the whole of the “actus reus” as so defined or recklessness.  There was no policy basis justifying criminal liability in the absence of intention or recklessness.  Clark v HM Advocate (supra) had purported (at 56 – 57) to apply R v Senior [1899] 1 QB 28.  Senior had been misunderstood.  It did not justify the proposition that section 12 created an “absolute offence” (R v Sheppard (supra) at 405 – 7, 410 and 418 – 9).

[16]      Neither Clark nor Sheppard were directly in point.  Both related to neglect by omission rather than ill-treatment by a positive act.  In any event, Clark had been wrongly decided.  It had been overruled in a number of respects (Ross v HM Advocate 1991 JC 210) and should now be “left behind”.  Given its binding nature in criminal proceedings, it was accepted that any departure from Clark in the civil courts could result in the application of different principles for establishing grounds of referral.  Nevertheless, whether Clark fell to be distinguished or deemed wrong, the sheriff had erred in finding the section 67 grounds established.  It was “a basic issue of justice and policy” that “ordinary behaviour”, such as that in the present case, ought not to be criminalised.  If the first appellant’s arguments were sustained, the criminal courts would resolve any resulting conflict of precedent.

[17]      On the respondent’s interpretation, section 12 of the 1937 Act would criminalise accidents.  Accidentally placing a child in danger should not be criminalised (S v Authority Reporter 2012 SLT (Sh Ct) 89.  The requisite state of mind had to be assessed subjectively (cf R v Sheppard (supra) at 411, citing section 8 of the Criminal Justice Act 1967), although motivation was irrelevant.  In S v Authority Reporter (supra), the sheriff principal (MM Stephen, at 103 to 104) had been prepared to accept the reasoning in Sheppard.  In Dunn v McDonald 2013 SLT (Sh Ct) 34, the sheriff (S Reid at paras 42 – 44) had considered himself bound by Clark.  It was “an accident of history” (ie the misunderstanding of R v Senior (supra), subsequently corrected in R v Sheppard) that the law stood where it did. 

[18]      The sheriff had erred in applying a reasonable parent test.  He had thereby misled himself into drawing the inference that the first appellant had not cared about the risk of harm to the child.  In adopting this fall-back position, the sheriff had overlooked that: (i) there was nothing inherently dangerous about what the first appellant had done; (ii) the first appellant lifting the child in front of the health visitor was indicative of his state of mind; (iii) the first appellant’s general attitude to his children had been exemplary and demonstrative of positive care; (iv) it was not obvious upon a medical examination at around the time of the lifting incident viewed by the health visitor that the boy had been hurt or had suffered rib fractures; and (v) the first appellant had consistently displayed anxiety in that the manner of his lifting may have caused the injuries.

 

(ii)       Lack of parental care (questions 5 and 6)

[19]      The only basis for the sheriff’s finding, that the twins had been likely to suffer unnecessarily, had been the first appellant’s practice of lifting and carrying them with one hand.  The sheriff had found in fact that the first appellant had continued to do this.  There was no evidence that this practice had caused any difficulty to the twins as toddlers.  The sheriff having failed to identify any future risk, there had been no basis for finding grounds established under section 67(2)(a) (M v McGregor 1982 SLT 41).  The sheriff had been obliged to identify a future impairment to health, the likelihood that it would occur and that it was serious (H v Harkness 1998 SC 287, at 294-5; M v McClafferty [2008] Fam LR 22, at para [9]).  The sheriff had not addressed these factors.  He had referred to whether there “had” been a lack of parental care solely on the basis of his finding as to the past offence.  The offence had been, in reality, a “baby handling problem”, which no longer arose by the time the twins were toddlers.

 

(iii)      Statements of fact (questions 7 and 8)

[20]      The Children’s Hearing had to proceed on the basis of facts found established by the sheriff.  It was not entitled to ignore the sheriff’s findings (M v Kennedy 1993 SLT 431, at 434).  The sheriff had expressly rejected the relevance of certain facts, but had failed to delete them from the statement of facts.  There was potential for harm to be caused, in respect of all four children, if the Children’s Hearing were to proceed on the basis that these facts were relevant.  These were not truly “supporting facts” for any ground of referral (cf 2011 Act, section 89). 

[21]      Statements of fact were intended to represent an agreed narrative following negotiation by the parties (see, eg, Act of Sederunt (Child Care and Maintenance Rules) 1997, rule 3.48; Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013, rule 59(3) and (4)).  The facts not being relevant to the grounds found established, they were not matters in respect of which the Children’s Hearing were required or entitled to act.  If the grounds of referral were not otherwise discharged, the case should be remitted with a direction to the sheriff to delete the offending facts.

 

Respondent
[22]      The respondent submitted that the issue was primarily one of the proper construction of the “gateways” to the Children’s Hearing system.  There were two gateways: first, section 12 of the 1937 Act; secondly, and peculiar to the twins in the present case, lack of parental care in terms of section 67(2)(a) of the 2011 Act.  The gateways placed the children within the jurisdiction of the Children’s Hearing, but did not dictate a particular outcome.  It was for the Children’s Hearing later to consider the prevailing circumstances.  All four children remained the subject of compulsory supervision orders.  The eldest, now aged 13, lived at home with her parents.  The middle child, aged 3, and the twins, aged 2, lived with foster parents subject to parental and sibling contact.  The supervision requirements were reviewed regularly; most recently on 7 May 2015, resulting in variation of contact arrangements.

 

(i)         Wilful ill-treatment (questions 2 – 4)
[23]      It was not appropriate to substitute other language for the significant terms “ill-treats” and, in particular, “ill-treats … him”.  There had to be ill-treatment.  The ill-treatment had to meet the threshold that it was likely to cause suffering or injury.  The quality of the ill-treatment had to be consistent with the term “wilfully”.  There were two prerequisites.  First, the conduct had to be wilful in the sense of being deliberate and intentional (Clark v HM Advocate (supra), LJC (Grant) at 56).  Secondly, the ill-treatment, objectively viewed, had to be “likely to cause…unnecessary suffering or injury to health”.  No offence was committed in the absence of a likelihood of injury (H v Lees; D v Orr 1993 JC 238).  Where there was such a likelihood, no intention to injure or awareness of risk was required (Clark v HM Advocate (supra), LJC (Grant) at 56).

[24]      The case was not about the awkward lifting of a child.  It was about the compressing of a child with sufficient force to cause serious injuries.  The pivotal finding of the sheriff was the significant degree of force.  Considering the resulting injuries, the only proper interpretation was that the children had been ill-treated in a manner likely to cause injury (H v Lees; D v Orr (supra)). 

[25]      The first appellant sought to read into the statutory provision words that were not there, by removing “in a manner likely to”, substituting “intending” in relation to injury, and adopting an artificial interpretation of “wilful”.  Assault was no longer part of the statutory offence.  Reckless conduct could constitute a separate schedule 1 offence.  If what had happened had been accidental, there would have been no wilful ill-treatment.  The ill-treatment was to lift a child and compress its chest with sufficient force to fracture the ribs.

[26]      The obiter comments of Lord Diplock in relation to positive acts, in the peculiar context of English criminal law in R v Sheppard, were not a sufficient basis for the court to depart from the considered view of the High Court.  To do so would result in two different means of assessment in referrals to the Children’s Hearing in relation to the same incident.  Clark v HM Advocate (supra) and R v Sheppard (supra) were distinguishable as cases of neglect.  However, Clark had been consistently applied in Scotland, most recently in FB v PF Aberdeen 2014 SCCR 530.  The only exception was S v Authority Reporter (supra).

[27]      The first appellant’s interpretation of “wilful”, which proceeded on the basis of R v Sheppard (supra), was inconsistent with Scots law.  The court had had regard to the effect of section 8 of the Criminal Justice Act 1967, which did not apply to Scotland.  According to Scots law, “wilful” does not denote recklessness but requires deliberate or intentional conduct (Clark v HM Advocate (supra), H v Lees; D v Orr (supra); Gordon: Criminal Law (3^rd ed) para 7.13; Stoddard: “Criminal Law” in Stair Memorial Encyclopaedia (Reissue), paras 71 and 82; Byrne v HM Advocate 2000 JC 155). 

[28]      The sheriff had been entitled to conclude that the first appellant must have been aware of the risk of injury or did not care about the risk posed by the manner in which he had lifted the twins.  The evidence and undisputed findings in fact constituted a strong objective indication of ill-treatment that was more than capable of supporting an inference of recklessness (R v Sheppard (supra), at 408 and 412).

 

(ii)       Lack of parental care (questions 5 and 6)
[29]      There had to be a future risk in relation to the lack of parental care ground.  This was a prospective judgment involving an inference drawn from past conduct.  There had been at least three occasions on which the first appellant had inflicted serious injury upon the twins.  He had admittedly persisted in carrying the children in the same manner a year later.  The sheriff had been entitled to draw the inference of risk from past events (M v McClafferty (supra), at para [9]), and his continuing conduct.  He had been entitled to find the grounds of referral also established under section 67(2)(a) of the 2011 Act. 

 

(iii)      Statements of fact (questions 7 and 8)
[30]      The “incidental observations” included in the statements of fact would not have been included, had the reporter been drafting the grounds of referral of new.  They would not cause any difficulty in practice.  The children had now been in the system for around two years without any suggestion that the findings had caused difficulty.

[31]      A stated case ought to address only questions of law that it was necessary to answer (S v Locality Reporter Manager [2014] Fam LR 109, at paras [7]–[8] and [26]).  These particular questions would not, of themselves, form proper grounds of appeal.  Whilst the Children’s Hearing could not proceed in a manner contrary to the sheriff’s findings (M v Kennedy (supra)), it was not confined to information contained in the grounds of referral.  The relevance of any finding or other information was a matter for them (O v Rae (supra)).

 

Third appellant
[32]      The third appellant associated herself with the submissions of the respondent. 

 

(i)         Wilful ill-treatment (questions 2 – 4)
[33]      The sheriff had been correct to apply Clark v HM Advocate (supra) (H v Lees; D v Orr 1993 JC 238, LJG (Hope) at 244; Kennedy v S 1986 SC 43, Lord Hunter at 48).  He had been entitled to be satisfied, in any event, that the alternative test in R v Sheppard (supra) would have been met.  There was no proper foundation in Scots law for the latter test of recklessness.

[34]      The substitution of a subjective test of awareness, in place of the objective test of likelihood, was not supported by R v Sheppard (supra), which was restricted to cases of wilful neglect by failing to provide adequate medical aid.  Scots law drew a distinction between intent and recklessness (HM Advocate v Harris 1993 JC 150, at 154 and 165; Byrne v HM Advocate (supra) at 162).  The latter should not be imported into wilfulness (Clark v HM Advocate (supra); H v Lees; D v Orr (supra), LJG (Hope) at 243; Gordon, The Criminal Law of Scotland (3^rd ed), paras 7.31 and 7.34).

[35]      Dunn v McDonald (supra) was to be preferred to S v Authority Reporter (supra).  It was unnecessary to apply the term “wilful”, beyond the associated verbs, to the subsequent phrase describing the manner in which those actions were carried out.  There were sound policy reasons for justifying a measure of strict criminal liability for the protection of vulnerable children (Dunn v McDonald (supra), at 42).

 

(ii)       Lack of parental care (questions 5 and 6)

[36]      The sheriff had been required to conduct an assessment, with regard to the risk of lack of parental care in the future, based on the evidence of past events (M v McClafferty [2008] Fam LR 22).  The sheriff had been entitled to draw the inference that he did on the basis of the first appellant’s past infliction of a substantial number of rib fractures and his continued practice of lifting each child with one hand as recently as July 2014, notwithstanding his acknowledgement at police interview, on 5 June 2013, that such handling may have caused the fractures. 

 

(iii)       Statements of fact (questions 7 and 8)

[37]      A Children’s Hearing was not entitled to ignore a finding by the sheriff (M v Kennedy 1993 SLT 431).  It was not confined to the established grounds.  It could have regard to such information as it considered relevant (O v Rae 1993 SLT 570, LP (Hope) at 574).  A Children’s Hearing proceeded on the totality of information before it, of which the established grounds were only a part.  The deletion of statements of fact, which a sheriff had considered to have accurately reflected the evidence, would be a departure from normal practice.  It would be apt to confuse the Children’s Hearing as to whether or not it was entitled to have regard to those findings as part of the whole background to the case. 

 

Decision
[38]      At common law, it was recognised that children required protection from being placed at risk or danger of injury, through neglect or ill-treatment, irrespective of the intentions of those whose deliberate actions brought about that risk (Macdonald: Criminal Law (5^th ed) 125-126).

[39]      The origins of section 12 of the 1937 Act lie in a succession of statutes providing for the prevention of cruelty to children in the Victorian era.  They led to the Prevention of Cruelty to, and Protection of, Children Act 1889 (see, generally, Trotter, The Law as to Children and Young Persons (1938) and, for England, see R v Sheppard [1981] AC 394, Lord Fraser at 414-416).  By virtue of section 1 of that Act, as applied to Scotland in terms of section 17: 

“Any person … who, having the custody, control, or charge of a child … wilfully ill-treats, neglects, abandons, or exposes such child … in a manner likely to cause such child unnecessary suffering, or injury to its health, shall be guilty of [… an offence]…”.

 

The Prevention of Cruelty to Children (Amendment) Act 1894, added (section 2(1)) a reference to assault, alongside and distinct from ill-treatment, also qualified by “wilfully”. 

[40]      The Prevention of Cruelty to Children Act 1894, substantially re-enacted the terms of section 1 of the 1889 Act, as so amended, to read as follows:

“If any person … wilfully assaults, ill-treats, neglects, abandons, or exposes such child … in a manner likely to cause such child unnecessary suffering, or injury to its health … that person shall be guilty of [… an offence]…”.

 

Further minor amendments were contained in the Prevention of Cruelty to Children Act 1904 and the Children Act 1908.  Ultimately separate offences were provided for England by the Children and Young Persons Act 1933 (section 1) and for Scotland by the Children and Young Persons (Scotland) Act 1937 (section 12).  The 1937 Act was subsequently amended by the Criminal Justice (Scotland) Act 2003 to remove the reference to assault (2003 Act, s 51).

[41]      Section 12 of the 1937 Act provides:

“12. – Cruelty to persons under sixteen

(1)        If any person who … has parental responsibilities in relation to a child … or has charge or care of a child … wilfully ill-treats, neglects, abandons, or exposes him…, in a manner likely to cause him unnecessary suffering or injury to health … that person shall be guilty of an offence…”.

 

[42]      Sheriff Trotter KC (supra), in the introduction to his contemporaneous account of the 1937 Act, observes (at p xv) that the statute followed “a marked development of the social conscience of the country regarding its children and young persons, and various Acts of Parliament…passed for the better protection of the young”.  In particular (at p xviii), Part II of the Act “provides for the prevention of (1) cruelty to children and (2) the exposure of children and young persons to moral and physical danger”.  Trotter adopts (at p 21) the meaning of “wilfully” provided in R v Senior [1899] 1 QB 283 (Lord Russell CJ at 290), viz. “that the act is ‘done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it’”.  He highlights (at p 25) English authority (R v Williams [1910] 4 Cr App R 89) to emphasise that intent to injure is not required in order for the offence to be established.

[43]      In Clark v HM Advocate 1968 JC 53, the High Court considered the admissibility, in a case of wilful neglect, of evidence tending to establish a state of mental irresponsibility which would negative wilfulness and justify an acquittal (LJC (Grant) at p 55).  The evidence would have been to the effect that the parents were so feckless and incompetent that they could not have appreciated what the result of their conduct would be.  Accordingly, it was sought to be argued, their neglect was not wilful. 

[44]      The Lord Justice Clerk (Grant) set out in clear terms the test to be applied in a prosecution for an offence under section 12(1) of the 1937 Act as follows (at 56-57):

“The argument for the applicants … [proceeds] on a confusion between the two ingredients of such an offence:- (a) that there should be neglect (or ill-treatment, abandonment, assault, etc) which is wilful – though it is difficult to conceive of conduct which is not wilful constituting assault; and (b) that this should be in a manner likely to cause the child unnecessary suffering or injury to health.  As the Sheriff-substitute pointed out, ‘neglect is the want of reasonable care, that is the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind.  That is what neglect is, but before you can bring a criminal charge, you have got to prove that it was wilful in the sense of being deliberate or intentional, but…without necessarily having any intent to harm the child’ [original emphasis].  In other words, while proof of wilfulness is essential to establish head (a), the test under head (b) is an objective one.  That test is whether the neglect was ‘in a manner likely to cause…’ and not whether it was ‘in a manner intended to cause. …  The absence of such intention where, as is said to be the case here, the actings or omissions are due … to fecklessness and incompetence is … no defence.”

 

[45]      In R v Sheppard (supra), Clark was cited (at 399) as a “strong authority in favour of the Crown”.  The defence (at p 401) was that the parents did not realise that their child was ill enough to require medical attention.  In relation to positive acts, Lord Diplock observed (obiter, at p 404) that the natural meaning of wilfully did not extend to the doing of a physical act, where the doer did not foresee the harmful consequences.  It was deemed appropriate to overturn “the consistent practice of the courts…of treating R v Senior (supra) as if it were a binding authority for the proposition that … failing to provide him with adequate medical aid is an absolute offence” (Lord Diplock at p 407).  The issue of Parliamentary intention is conspicuously absent from the reasoning of the majority (cf Lords Fraser and Scarman (diss.) at pp 414–416 and 420–423 respectively). 

[46]      The sheriff considered himself bound by Clark v HM Advocate (supra).  He founded upon the reasoning of his colleague in Dunn v McDonald 2013 SLT (Sh Ct) 34.  The sheriff in Dunn (S Reid) had reasoned that:

“[40]    The offence … comprises three essential elements: (1) there must be neglect (or ill treatment, abandonment, or exposure) of the child by a parent (or other person having charge of the child), (2) in a manner likely to cause unnecessary suffering or injury to the child’s health, and (3) such neglect must have been wilful ...”

 

Both neglect and the likelihood of suffering were to be assessed objectively (paras [44] and [46]).  There was no requirement for there to be any intention to cause suffering (para [63]).  The sheriff expressly declined to follow the reasoning of the majority in R v Sheppard (supra), or of the sheriff principal (MM Stephen) in S v Authority Reporter 2012 SLT (Sh Ct) 89.

[47]      The contrary approach is illustrated in S v Authority Reporter (supra); which was a decision on appeal from a sheriff’s finding that grounds of referral had been established.  The child’s mother had thrown the child onto a bed, intending that it should land softly on top of it.  There was a finding from the sheriff that the throw had been deliberate and intentional.  However, applying the test set out by Lord Diplock in R v Sheppard (supra at pp 404-5), the sheriff principal held that the sheriff had not been entitled to find the mental element of the offence established.

[48]      Clark and Sheppard, being examples of wilful neglect, may both be strictly distinguishable from the present case of wilful ill-treatment.  However, the statutory construction set out in Clark applies generally to offences under section 12(1) of the 1937 Act, whether by positive act or omission. To that extent, it is, in criminal proceedings, binding upon all sheriffs who are required to construe the scope of any such offence.  As a matter of principle, in the context of Scots criminal law, that construction is correct. 

[49]      “Wilful” ill-treatment requires deliberate or intentional conduct.  “Wilful”, as it is ordinarily understood in the context of the mental element in crimes, involves intention.  Notwithstanding the origins of the statutory offence in legislation generally applicable throughout the United Kingdom, there is nothing to suggest that Parliament intended to restrict the common law position in Scotland.  The pre-existing common law offences of child cruelty, loosely defined, paid little, if any, regard to either the motives or the state of mind of the perpetrator who put his child at risk or in danger, or caused the child to suffer injury.  The relevant issue was whether harm would be likely to, or inevitably, arise from the deliberate act or omission in question. 

[50]      The scope of the requisite intention is sufficiently clear from the statutory purpose to improve the protection of children from cruelty (short of assault) at the hands of those who bear the responsibility of caring for them.  The statute requires the assessment of ill-treatment or neglect, according to the objectively assessed likelihood of its harmful consequences, in order to give effect to that purpose.  The offence strikes only at conduct at such a level of culpability that it is likely to cause the child suffering or injury to health.  The imposition of criminal liability is circumscribed by the likelihood and significance of harm, and is restricted to the class of person in the position of responsibility for a child.  The introduction of a subjective assessment of ill-treatment or neglect, involving a search for the carer’s thinking at the relevant time, would remove the desired statutory protection otherwise afforded to children. 

[51]      Addressing the matter is a slightly different order from that in Dunn v McDonald (supra) whilst agreeing with the sheriff in that case, what is required, first, is that the conduct be deliberate.  Secondly, the court must be able to categorise the conduct as “ill-treatment”, in the sense of involving what can reasonably be described as cruelty.  The character or quality of conduct that will constitute ill-treatment is a matter to be determined objectively.  The addition of the term “wilful” does not import a subjective element to that assessment.  The proper threshold of criminal liability is fixed also by reference to the likelihood of sufficiently grave consequences arising from deliberate or voluntary action or inaction.  The term “wilful” necessarily serves to exclude accidental or inadvertent conduct, as opposed to the accidental or inadvertent consequences of deliberate conduct, from the scope of the offence.  It is unnecessary, and contrary to the statutory purpose, to restrict the scope of the offence by reference to the subjective awareness of the individual of the harmful nature of the conduct in question.

[52]      There is no sound basis for the court to depart from Clark v HM Advocate (supra) in the absence of legislative provision to such effect (cf Consultation on Proposals for an Offence of Wilful Neglect or Ill-treatment in Health and Social Care Settings, October 2014, Scottish Government).  Clark has been settled law for almost half a century (see eg Gordon: Criminal Law (3^rd ed) para 7.34).  If it is to be departed from, and there appears to be little enthusiasm for that, it should be a matter for Parliament to determine.  It would, in addition, be highly undesirable for the civil courts to attempt to trespass on matters of criminal law, both as a generality and in the particular context of a contrary decision being productive of different bases for referrals to the Children’s Hearing on the same facts (Criminal Procedure (Scotland) Act 1995, section 48; cf Children’s Hearing (Scotland) Act 2011, section 67).

[53]      The sheriff correctly applied the law.  He found as a matter of fact that the infant twins had suffered inflicted injury at the hands of the first appellant, which had involved a significant degree of force or pressure.  By lifting and carrying the twins with one hand, in the particular forceful manner described, the first appellant caused multiple rib fractures to both children on at least three occasions.  On the sheriff’s narrative of the evidence, major force was required, such as the use of the full strength of an adult hand to compress the child’s chest.  The conduct was such as to suggest very rough handling, totally outwith the norm.  This is far removed from the characterisation of the conduct, made on the first appellant’s behalf, as “ordinary behaviour” in the lifting and carrying of infants.  On the contrary, it could reasonably, if not inevitably, be categorised as “ill-treatment”.  The conduct was intentional and deliberate.  It was found to have caused the twins unnecessary suffering and injury to their health.  On the basis of such findings, the sheriff was entitled to hold the offence established.  Question 2 must therefore be answered in the negative. 

[54]      Questions 3 and 4 do not now arise.  However, the sheriff’s conclusion, that the first appellant’s handling of the infants, with such a significant degree of force, demonstrated an utter disregard for their safety, was amply justified.  Had it been necessary to do so, these questions would have been answered in the affirmative.

[55]      Since the commission of a schedule 1 offence was correctly established, a valid ground of referral subsisted in terms of section 67(2)(b) of the Children’s Hearings (Scotland) Act 2011.  Whether the additional ground under section 67(2)(a) (lack of parental care) was also demonstrated, has little practical significance since all four children would have been referred, given the commission of the offence (2011 Act, s 67(2)(c)).  However, in view of the sheriff’s findings of wilful ill-treatment and the first appellant’s repetition of similar conduct notwithstanding his apparent concern as to having caused the twins’ injuries by such conduct, the sheriff was entitled to conclude that the children remained at risk of a lack of parental care in the future.  The first appellant contends that a number of factors militated against such a conclusion, including the first appellant’s general attitude and his anxiety when his mode of lifting was identified as a possible cause of the rib fractures.  These factors were matters for the sheriff to take into account and weigh in the balance.  Notwithstanding the assertion, on the first appellant’s behalf, that what he did was not inherently dangerous, the sheriff was entitled to take the opposite view, which he did.  He found that the appellant’s actions were likely to, and in fact did, cause the infants unnecessary suffering and injury (finding in fact (30)).  The risk posed by the mode of lifting was pointed out to the first appellant, yet he continued to act in this manner.  The fact that, obviously, the twins were slightly older when he did this may be regarded as of marginal significance.  Questions 5 and 6 accordingly fall to be answered in the affirmative.

[56]      Finally, in relation to the relevance of the statement of supporting facts, the grounds of referral having been established and the sheriff having remitted the case to the respondent to arrange a Children’s Hearing, the findings in fact have fulfilled their function.  Thereafter, it was for the Children’s Hearing to consider the welfare of the children, taking account of such matters as they saw fit in determining whether measures of compulsory supervision were required.  It is neither necessary nor appropriate for this court to engage in an exercise of adjustment of the supporting statement (S v Locality Reporter Manager [2014] Fam LR 109, Lady Smith at paras 7 – 8).  Accordingly, questions 7 and 8 fall to be answered in the negative.

[57]      The appeal should accordingly be refused.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 58

XA165/14

Lord Justice Clerk

Lord Malcolm

Lord McGhie

 

OPINION OF LORD MALCOLM

in the Appeal by Stated Case

under section 163 of the Children’s Hearings (Scotland) Act 2011

by

(FIRST) JM, and (THIRD) SARA MATHIESON, Curator ad litem

Appellants;

against

LOCALITY REPORTER, GLASGOW

Respondent:

Act: J Scott QC, Aitken; Drummond Miller LLP (First Appellant)

Act: Moir; Balfour & Manson LLP (Third Appellant)

Alt: Moynihan QC; Anderson Strathern LLP

15 July 2015

[58]      I agree that the questions posed in this appeal should be answered in the manner proposed by your Lordship in the chair, and that the appeal should be refused.  I also agree with your Lordship’s general observations upon the law in this area.  I wish to add some comments of my own on one aspect of the case.

[59]      On the view which I take, the concentration both before the sheriff and in this court upon the “wilful” element in the statutory crime has obscured the real issue.  To my mind, the key question is whether the conduct of the father, when lifting the children, amounted to “ill-treatment” in terms of section 12 of the 1937 Act. 

[60]      There is no question that the conduct was wilful, in the sense that it was deliberate, which is all that is required in that respect.  Equally, on the evidence, and in particular on the facts as found by the sheriff, especially the force used, it is clear that the conduct was “likely to cause (the children) unnecessary suffering or injury …”.  The remaining requirement is that the conduct is properly characterised as “ill-treatment” within the meaning of section 12. 

[61]      Lifting a child, even if done clumsily or roughly, would not, I suggest, ordinarily be described as ill-treatment – at least not in the sense intended by the legislation.  As his Lordship in the chair points out, the context is the protection of children from cruelty.  In other words, the provision is designed to deal with a gross violation of parental duty.  (I note that similar phraseology is used by Sheriff Trotter at page 23 of the work cited by his Lordship in the chair.)

[62]      The only issue which has troubled me in this appeal is whether the sheriff was entitled to conclude that the father’s conduct in lifting the children in the manner which he did, and using such force as to cause the injuries, demonstrated the necessary cruelty towards them.  However, having regard to his findings-in-fact and to the nature of the evidence before him, as explained in his Note, I have come to the view that the sheriff was so entitled.  It follows that it is not open to this court to interfere with the terms of paragraph 29 of the sheriff’s findings, which are to the effect that the children were ill-treated.

[63]      If a different view were to be taken on this matter, it would not involve any contradiction with the decision in Clark v HM Advocate 1960 JC 53, which involved a clear case of neglect in terms of section 12.  The issue there was whether the alleged “mental irresponsibility” could elide the necessary wilfulness, or mental element.  The answer was in the negative;  but no equivalent question arises in the circumstances of the present case.  I consider that the general concerns raised by counsel for the appellants as to the term “wilfully” are more properly addressed by reference to whether the undoubtedly deliberate, and therefore wilful, conduct amounted to “ill-treatment”.  The nature of the submissions made to the sheriff and to this court have meant that this question has never been fully focussed, however it is sufficiently covered by the sheriff’s findings-in-fact and the discussion in his Note.

[64]      If one does not give proper weight to the need for ill-treatment (or in another case, neglect) in the sense of cruel conduct towards children in violation of a parental or equivalent duty, there is at least a risk of criminalising deliberate conduct which falls short of ill-treatment (or neglect), if it is foreseeable that harm will be caused.  Though not expressed in these terms, I suspect that it was a similar underlying concern which influenced Sheriff Principal Stephen in the case about the baby carelessly thrown onto a bed (S v Authority Reporter 2012 SLT (Sh Ct) 89).  An example of the kind of thing I have in mind might be when, out of frustration, a parent deliberately grabs the arm of a child who is refusing to stop running about, thereby dislocating his shoulder.  Even if it is proven that this was likely to cause injury, it would escape the scope of section 12, not because there was no intention to cause harm, but because it was not ill-treatment in the sense intended by Parliament. 

 

[65]      On the specific point raised by counsel for the appellants, Scots law has followed the path illuminated by Lords Fraser of Tullybelton and Scarman in their dissenting speeches in R v Sheppard 1981 AC 394.  As Lord Scarman observed, the equivalent English statutory offence does not import the requirement of foresight or recklessness as to the consequences of what was done or not done (p 420D).  Were it otherwise, Parliament’s intention to strengthen the law’s protection of children would be undermined. 

 

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 58

XA165/14

Lord Justice Clerk

Lord Malcolm

Lord McGhie

 

OPINION OF LORD McGHIE

in the Appeal by Stated Case

under section 163 of the Children’s Hearings (Scotland) Act 2011

by

(FIRST) JM, and (THIRD) SARA MATHIESON, Curator ad litem

Appellants;

against

LOCALITY REPORTER, GLASGOW

Respondent:

Act: J Scott QC, Aitken; Drummond Miller LLP (First Appellant)

Act: Moir; Balfour & Manson LLP (Third Appellant)

Alt: Moynihan QC; Anderson Strathern LLP

15 July 2015

[66]      I am grateful to the Lord Justice Clerk for his Opinion and do not attempt to go over the ground he has fully covered.  I accept that under Scots law, as it has developed since Clark v H.M. Adv, the critical second question, dealing with intention, falls to be answered in the negative.  I differ from him in my view that, on a proper understanding of how the Sheriff approached this case, his Findings did not properly address the issue of “wilful ill-treatment” – discussed further below - but I accept that the Sheriff’s comments and summary of evidence would have led him to the same conclusion.  I agree that if the law is to be changed it is a matter for Parliament.  But an offence of wilful ill-treatment of adults in care settings is currently being proposed and this appears to me to justify some further consideration of the wording of section 12.  I see no purpose to be served by treating the parent’s intention as irrelevant and although this is qualified to some extent by acceptance of the need to find conduct which can be objectively characterised as wilful ill-treatment, the qualification may, in practice, be of little significance.

[67]      In order to explain this it is necessary to look at the matter in some detail.  As presented by Mrs Scott, the issue in the second question was thought to turn on an apparent conflict between the law as it was said to have been laid down in Scotland in Clark, and the law as developed in England in R v Sheppard.  It appeared to be thought that Clark was authority for the proposition that the mental attitude of the carer was wholly irrelevant except in so far as there had to be deliberate, as opposed to accidental, physical actings: in short, that all that was needed for the first stage of the offence was wilful actings.  Mrs Scott plainly understood that this was to be the argument against her and this appears to have been how the matter was explored before the Sheriff.  Mr Moynihan, however, supported his contention that there had been wilful ill-treatment by reference to the whole facts and circumstances and the inferences to be drawn from the injuries and the medical evidence of causation requiring the full force of an adult hand.  He did not rely on the simple finding that the parent had deliberately picked up the child with one hand.

[68]      There is scope for confusion between the concept of acting wilfully in the sense of deliberately intending a physical movement, or absence of movement, and the concept of a wilful offence which requires something in the conduct pointing to deliberate offending.  In short-hand form these may be referred to as wilfully acting or wilfully offending.  A paradigm example of the distinction is the making of a false entry in a register: see Kinnison (1870) 1 Couper 457.  Where a person deliberately writes a name in a particular space, there is wilful acting but if he has not realised that he had the wrong name there is no wilful offending.  He has not wilfully made a false entry.  To extend the example, it can be said that if the offence was “wilfully making a false entry likely to cause a wrongful payment to be made”, the likelihood of such payment would not change the character of the offence.  The first stage would be to find the criminal conduct.  The need to prove a specific consequence would be seen as a qualification or restriction of the offence.

[69]      In many contexts the wilful acting will itself be sufficient to demonstrate the offence.  A deliberate striking can readily be characterised as the wilful offence of assault.  Presenting a gun at a shopkeeper and demanding money is enough to establish the offence of robbery or attempted robbery.  In other contexts it may be necessary for the prosecution to lead evidence of facts and circumstances from which the character of the conduct as an offence can be determined.  The wilful making of a false entry in a register might need something more than proof that the entry was made and was incorrect.  In most contexts, even where the objective actings would permit characterisation as an offence, there will be scope for a defence of lack of intention.  In other words, even where the actings are sufficient, in themselves, to justify an inference of wilful commission of an offence, an accused will normally be entitled to rely on any evidence, including his own evidence of intention, explaining why the normal inference should not be drawn.  The scope of a defence of lack of intention may be limited in some circumstances: see Lord Advocates Reference (No 2 of 1992) 1993 JC 43.  It is not necessary for present purposes to attempt a full analysis of when and how evidence of intention may be allowed.  I accept that, as explained by the Lord Justice Clerk, a subjective lack of intention to harm would not provide a defence under section 12.

[70]      However, I am satisfied that any dicta which appear to exclude reference to intention must be understood as limited to the situation where the objective facts and circumstances point to the offence of ill-treatment.  Some one-handed lifting might well be regarded as ill-treatment.  Lifting a child by the hair or by the ears might be obvious examples.  But the problem can more readily be illustrated by the example posed by Lord Malcolm.  If a parent tries to restrain a running child by grabbing his arm, it is certainly foreseeable that this wilful action might cause injury to the shoulder joint.  But it would not be described as “ill-treatment”.  Although the specific circumstances of S v Authority Reporter were a little different, another example might be of a mother playing with her baby by throwing it onto a bouncy bed.  It would be foreseeable that if a throw was badly judged the baby might bounce and come into contact with a bedside unit.  But in neither of these cases could the conduct be what Parliament must have had in mind in creating an offence of wilful ill-treatment.

[71]      There would be no offence in relation to these two examples if it could be concluded that, while a harmful consequence was foreseeable, the actings were not actually “likely” to cause harm.  Reference can be made to the discussion by Lord Hope in H v Lees, at p 246, A – C, to the effect that this requires a “substantial risk”.  But a better reason for exclusion of these examples would be the recognition that while the motivation of the parent is not relevant, there must be something about the deliberate conduct which can properly be described as “ill-treatment” before there is any need to look at the question of likelihood of injury as a separate step.

[72]      The problem in the present case is that the discussion by the Sheriff does not expressly deal with the question of whether the established conduct of the father was sufficient, judged objectively, to be characterised as “ill-treatment”.  There was no doubt that the Sheriff found wilful acting.  The father had deliberately picked up the child with one hand.  The Sheriff found that this was likely to cause serious harm.  It may be noted that the risk which the professionals appear to have spoken to in relation to this act was the risk with a very young baby that its neck might not be properly supported.  But, on any view, I do not accept that simply picking up a child with one hand could, in itself, be said to have the quality of being “ill-treatment”.  The Sheriff made no explicit Finding in Fact about the actings of the father in relation to the injury beyond the Finding [31] that the injuries were caused by the father “lifting each of them using one hand”.  Although his Finding, at [27], that the injuries were due to inflicted pressure might be thought to point to wilful ill-treatment, I am satisfied that, in the context of the exposition of the facts, this Finding was made at the stage of expressing his conclusions as to cause or mechanism of the injury.  It does no more than that.  In other words, in this Finding he is not attempting to address the quality of the conduct.  However, on the face of Finding in Fact [29] it appears that the Sheriff took the view that if a particular physical action directed towards a child was a deliberate or conscious action – a wilful physical movement – there was an offence if it was likely to cause harm even if there was no mens rea in relation to ill-treatment.  If, as appears from this Finding, the Sheriff considered that it was unnecessary for the purposes of section 12 to do more than find deliberate physical actings of a sort likely to cause harm without considering whether the actings had the character of “ill-treatment”, I consider that he misdirected himself.

[73]      Clark does not support an absolute offence.  The critical decision in the case was simply that there was no need for any separate wilful intent in relation to the second part of the test.  That was to be judged objectively and did not involve questions of the carer’s intention.  But I am satisfied that the majority of the court never contemplated the proposition that a finding of wilful ill-treatment could be made without any regard to the accused’s intention.  The context in which these matters were discussed was unusual.  The parents were charged with wilful neglect.  Their conduct had led to the death of their child.  There appears to have been no dispute that it would have been a defence for the accused to show that they did not appreciate that the child was not getting enough food or was in need of medical aid: p 59 line 6.  Indeed, the Sheriff directed the jury that if they accepted the accused’s account of this they would be bound to acquit.  However, the defence had attempted to bolster the parents’ own accounts by evidence of a psychiatrist to show “that the panels were only partly responsible for their actings”: p 58 line 5.

[74]      Although the Lord Justice Clerk (Grant) explicitly rejected the analysis of wilful neglect in Gordon’s Criminal Law and said that a separate test applied to an offence of neglect under section 12, he continued to speak in terms of intention to neglect, ill-treat, abandon, or assault.  In other words his discussion was consistent with a need to establish a wilful offence rather than simply deliberate actings.  Lord Walker referred with apparent approval to the Sheriff’s direction that if the jury accepted the parents’ evidence they would be bound to acquit.  So, his Opinion appears consistent with the view expressed in Gordon.  Lord Milligan quoted the advocate depute’s submission that there was “no material difference between wilfully and mens rea”.  The issue, as he expressed it, was whether there were different standards of mental responsibility or “a half way house between sanity and insanity”.  He pointed out that there was no intention of showing that “the neglect was due to accident or ignorance.”  He did not suggest that this would have been irrelevant.  It may also be observed that “assault” was expressly included in the section at that time and it can hardly be thought that the intention of the Court was to say, by inference, that the term “wilful assault” as used in the statutory provision did not require guilty intent.

[75]      Mr Moynihan did not seek support from Clark.  He accepted that there must be some material allowing the physical actings to be described as ill-treatment.  Plainly this is comparatively straightforward where the actings can have no purpose other than to inflict harm.  A punch on the nose, a blow with a belt, violent shaking, are all obvious examples but where the actings are not of that kind some inference of intention of harm must be capable of being drawn in order to create the criminal intent.  This issue is blurred, in the context of section 12, because where physical actings are likely to cause harm to a child they will normally merit the description of ill-treatment.  Accordingly the distinction between a need for wilful actings and wilfully offending may normally have little substance.  I think it would have arisen sharply in the present case had there been no relevant material beyond Finding 29.  However, I have come to accept the Lord Justice Clerk’s conclusion that, on the basis of all the material he sets out, the Sheriff was entitled, if not bound, to find the offence of wilful ill-treatment established by reference to the overt actings of the father.  Taking the Stated Case as a whole, it is impossible to avoid the conclusion that the Sheriff was satisfied that the father had used a dangerous amount of force when lifting the children.  His discussion makes it plain that he accepted the evidence of Dr Wilkinson that a lot of force would be required to cause a fracture.  He was not dealing with one injury but with similar injuries to two babies involving the fracturing of several ribs.  Squeezing the ribs with sufficient force to cause fractures would in my view be sufficient to establish the necessary mens rea for assault – and a fortiori for ill-treatment.  In short, on an objective view of the father’s actings in this case wilful ill-treatment can properly be inferred.  When the interests of the children are at stake, it is appropriate to take a pragmatic approach to the Stated Case as a whole rather than to take a technical approach limiting our assessment to matters covered by specific Findings in Fact.  I accept that the Sheriff’s decision under section 12 must stand.

[76]      In light of our approach to question 2, the questions arising in relation to section 67(2)(a) in relation to continuing lack of parental care are of no practical importance.  However, it does appear to me that, whatever the implication of handling very young babies with one hand may be, a different approach is necessary with toddlers.  The fact that the father was admittedly picking up the twins in this way in the summer of 2014 does not appear to me to be a sound basis for a finding that the children would be at risk from future lack of parental care.  There was nothing to suggest that he was using undue force at that time or that the children’s necks were then at risk of lack of support.  I would answer questions (5) and (6) in the negative.

[77]      The Lord Justice Clerk has drawn attention to the discussion document published by the Scottish Government in relation to ill-treatment of adults in care:  (Consultation on Proposals for an Offence of Wilful Neglect or Ill-treatment in Health and Social Care Settings, October 2014, Scottish Government).  It proposes an offence in terms simply of “wilful ill-treatment” and explains that it is not proposed to make the offence conditional upon a harmful outcome.  I understand that the Ministry of Justice has been carrying out a somewhat similar exercise in relation to adults in care settings in England and has extended the consultation to include assessment of the working of section 1 of the English Children and Young Persons Act 1933, discussed in R v Sheppard.  When any Scottish Bill is drafted, care will be required to try to avoid the potential confusion which has arisen in relation to section 12.  Consideration of the working of that section and indeed consideration of the discussion of policy in R v Sheppard, might indicate a need for the section to be re-drafted to clarify the role of the carer’s intention.

[78]      There was also some discussion of policy in the Scottish cases of S v Reporter and Dunn v McDonald, cited by the Lord Justice Clerk.  Where there is doubt about construction reference can be made to the policy of Parliament at the time when the legislation was enacted.  The question of whether that is now to be regarded as a sound or sensible policy does not properly arise in the context of construction by a court.  But Parliament can be asked to reconsider.  I do not find the current approach to the provisions of section 12 to provide a satisfactory outcome.   In the context of protection of children, wilful ill-treatment might, itself, have been treated as an offence, similar to assault.  But plainly Parliament decided that some consideration of likely consequences was necessary.  This might have been because normal parenting includes conduct by way of punishment which might be described as ill-treatment but which would not be regarded as a criminal offence unless it was likely to cause unnecessary suffering or injury to health.  The reference to likely consequences appears to have had a dominant effect on construction of the provision as a whole.   But, the need for an offence which does not require proof of intention is far from clear.  It can be assumed that for the majority of parents, the risk of harm to their children is a more powerful sanction than the risk of criminal conviction.  The downside is that there may be circumstances where the risk of criminal sanction might be a barrier to the seeking of proper care.  The mother whose child bounced off the bed seems to have been quite open in seeking help.  A more aware parent might have been tempted to obscure the facts to avoid risk of prosecution or “being reported to the Social”.  This cannot be in the best interests of the children.  Sound child care can only be assisted by honest understanding of the facts.  A policy of strict liability ignoring the actual intention of the carer might have been thought necessary at one time but may not be necessary now when there are other grounds for intervention in the care of children.  Section 67(2)(a) would appear to me to provide an adequate ground for interference where children are at risk from parents who do not understand the consequences of their actings.  However, any possible change would, of course, require consideration by people with a proper range of expertise.