H v Lees; D v Orr
| Jurisdiction | Scotland |
| Judgment Date | 30 July 1993 |
| Docket Number | No. 31 |
| Date | 30 July 1993 |
| Court | High Court of Justiciary |
JC
L.J.-G. Hope, Lords Cameron of Lochbroom, Wylie
Statutory offence—Children and young persons—Wilful neglect of child—Being in charge of nine-month-old child whilst drunk and incapable of looking after him—Evidence—Sufficiency—No evidence of harm to child—Whether sufficient evidence to convict—Children and Young Persons (Scotland) Act 1937 (1 Edw. VIII & 1 Geo. VI, cap. 37), sec. 121
Statutory offence—Children and young persons—Wilful neglect of child—13-year-old girl left in house alone—Evidence—Sufficiency—No evidence of harm to child—Whether sufficient evidence to convict—Children and Young Persons (Scotland) Act 1937(1 Edw. VIII & 1 Geo. VI, cap. 37), sec. 121
Words and phrases—"Likely"—"Neglect"—Children and Young Persons (Scotland) Act 1937 (1 Edw. VIII & 1 Geo. VI, cap. 37), sec. 121
Section 12 (1) of the Children and Young Persons (Scotland) Act 1937 enacts that: "If any person who has attained the age of 16 years then has the custody, charge, or care of any child or young person under that age 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), that person shall be guilty of an offence." Section 12(2)(a) enacts that: "a parent or other person legally liable to maintain a child or young person shall be deemed to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing, medical aid or lodging for him, or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided under the enactments applicable in that behalf".
The appellant P.H. was found guilty in the sheriff court of the wilful neglect of a child aged nine months. The police had called at her house where the child was living with her at about 1 a.m. and found the appellant to be drunk and incapable. No arrangements had been made for any other person to be in the house with her and the child at the time. When the police called they found that the child was sound asleep and, when checked, was found to be quite safe and healthy and well wrapped up in a cot upstairs. The sheriff found that the degree of intoxication had been such, when combined with the fact that the appellant was alone in the house and would not have anyone else there when asked to agree to this by the police officers, as to amount to neglect of the child. The sheriff also held that, although there had been no evidence that any actual harm had occurred to the child, the degree of intoxication had created a situation which was likely to cause unnecessary suffering or injury to the child.
The appellant B.D. was convicted of wilful neglect in contravention of the same subsection in respect that he left his 13- and-a-half-year-old daughter alone in the family home after she had refused to go with him on a visit. There was no telephone in the house and the child had been left for about six hours. There was nothing to suggest that the child was not in good health or was otherwise not well cared for and the child was a mature and sensible 13-and-a-half-year-old. The police had arrived at the instigation of a neighbour and found that the child was upset and crying when she let them in but there was no finding that this was due to her having been left alone.
Both appellants appealed to the High Court of Justiciary by way of notes of appeal against conviction. The Crown did not seek to support either conviction at the appeal court hearing.
Held (1) that each of the words used in sec. 12 (1) suggested that the conduct had to be more than transient or trivial but the element of cruelty which was indicated by the headnote to the subsection was to be found in the manner, or the likely effect, of the conduct, which had of course to be wilful; (2) that in a case to which the deeming provision in sec. 12 (2) (a) applied, the standard to be applied was that of adequacy so that if a parent or other person legally liable to maintain the child failed to provide a child with adequate food, for example, he would be deemed to have neglected the child in a manner likely to cause injury to the child's health, but in cases such as the present which fell outside the deeming provision the appropriate standard was what a reasonable parent, in all the circumstances, would regard as necessary to provide proper care and attention to the child and failure to achieve that standard might reasonably be described as neglect, whether this was due to a deliberate decision or a positive act on the one hand or to an omission to do what was required on the other, the offence only being constituted if it was also shown by the evidence that this was done in a manner likely to cause a child unnecessary suffering or injury to health; (3) that although a person being drunk when in charge of a young child did not, in itself, constitute an offence under the subsection, drunkenness might well be regarded as irresponsible conduct and if it was of such a degree that the person was, for all practical purposes, incapable of looking after a child, this might be thought to amount to neglect, for a reasonable parent could not be expected to leave a young child alone with a person while he or she was in that state; but it could not be assumed that such neglect would be likely to cause a child unnecessary suffering or injury to health as this could not be left to speculation and there must be some evidence to support the inference that this was likely to occur; (4) that as there were no findings as to when the child was likely to require attention while the mother remained intoxicated nor were there findings of any other respect in which the child might be at risk of suffering or of injury the conviction of P.H., with some hesitation, could not be supported; (5) that in the case of B.D. there had been no evidence that in any specific and substantial respect what was done was likely to lead to unnecessary suffering or injury to the child's health; and (6) that, as there were no findings that in the case of B.D. such injury or unnecessary suffering was likely to result merely from the father's absence that evening, the conviction could not stand; and appeals allowed.
Observed (1) that no criticisms were to be made of those who contacted the police or the police themselves who had acted responsibly and out of proper concern for the child in each case and if any harm had happened to the children while they were unattended so that there was evidence of actual suffering or actual injury to health it might have been a relatively simple matter for the Crown to establish that an offence under sec. 12 (1) of the Act had been committed; (2) that to leave a child, especially of a very young age, unattended for a substantial period in circumstances where no reasonable parent would do this might properly be regarded as amounting to neglect of the child, so that those who might be tempted to do this should be aware that they were at risk of being held to have committed an offence, if there was evidence that to do so would cause the child, in some specific respect, unnecessary suffering or that it would cause injury to the child's health.
P.H. was charged in the sheriffdom of Lothian and Borders at Edinburgh on a summary complaint raised at the instance of Robert Ferguson Lees, procurator fiscal there, the libel of which set forth, inter alia, that: "[O]n 24th and 25th September 1992 in the house occupied by you at…Edinburgh, having attained the age of 16 years and having the custody, charge and care of [M.H.] aged nine months, you did wilfully neglect said [M.H.] in a manner likely to cause him unnecessary suffering or injury to health and did leave him alone and unattended and without proper supervision in the said house; and further, while in said house, you were drunk and incapable of looking after him; contrary to the Children and Young Persons (Scotland) Act 1937, sec. 12 (1)." The cause came to trial on 17th December 1992.Eo die, P.H. was convicted of part of the charge and requested that the...
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