Faculty: Update child cruelty law, but protect ‘normal parenting’



The Faculty of Advocates has given strong support for reform of the “archaic” offence of child cruelty, but warned that care must be taken to prevent everyday discipline from being criminalised.

The Scottish government is looking at possible changes to section 12 of the Children and Young Persons (Scotland) Act 1937 which prohibits neglect and cruelty. In particular, the review is considering making it explicit that the offence covers emotional harm.

In a response, the Faculty said: “We consider that the wording in the 1937 Act is archaic, a product of its time. We consider that modernisation is overdue to bring the offence into line with modern thinking and modern understanding of child abuse and child neglect.

“The lack of definitions of the key terms of the legislation makes it difficult to know if any particular act or omission is or is not outlawed by the legislation.”

The Faculty believed that children in Scotland should have “clear legislative protection” from emotional abuse.

“In our opinion, however, this is easier said than done, especially with a view to ensuring conduct which should not be criminalised is not covered by any future legislation,” the response added.

“In our opinion, the legislation should be framed such that acts or omissions which the ‘reasonable parent’ may employ which may upset the child (such as grounding the child or taking away a mobile telephone or games console after poor behaviour) are not even potentially criminalised…It may be that some particular level of emotional harm should be specified, to ensure that otherwise normal parenting is not criminalised.”

The consultation also covers the offence of sexual abuse of trust and whether the existing definition of a “position of trust” should be widened.

The Faculty said that the offence involved consensual sex with someone over 16, and while criminalising sexual relations between, for example, a teacher and a pupil was “entirely appropriate”, there were “very real difficulties with an extension of the definition of people who are in such a ‘position of trust’ such that normal sexual relationships would or could be criminalised”.