New sentencing guidelines proposed for child cruelty and FGM offences

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Consultation on the draft guidelines runs until 13 September 2017

The Sentencing Council has published proposed new guidelines for sentencing offenders guilty of child cruelty.  The guidelines cover three offences: cruelty to a child, causing or allowing a child to die or suffer serious physical harm, and failing to protect a girl from the risk of female genital mutilation (FGM).

The draft guidelines, which are now subject to a public consultation, comprise:

  • revised guidance for the offence of cruelty to a child which will replace an existing guideline; and
  • the introduction for the first time of guidelines for the offences of causing or allowing a child to die or suffer serious physical harm and the offence of failing to protect a girl from the risk of FGM.

The guidelines have been designed to allow a better assessment of these complex offences to help ensure consistent and proportionate sentencing for the wide range of offending that comes before the courts.

The offences can involve incompetent parenting or deliberate abuse, for example parents or guardians leaving children home alone or in insanitary conditions, neglecting them or putting them at risk through alcohol or drug abuse or subjecting them to sustained and deliberate ill-treatment and violence that leads to serious injury or death. They can also involve a parent having failed to act to protect their child from ill-treatment by someone else in the household, which can be due to them being victims of violence and intimidation from the same person themselves.

In assessing harm to victims, as well as physical and psychological harm, the guidelines for cruelty to a child take into account for the first time the developmental harm that such offences can cause to a victim. This may, for example, be manifested in developmental milestones that a child has not met.

The guidelines also introduce a new aggravating factor of an offender blaming others for an offence. This is because such cases will frequently involve one parent or carer/guardian seeking to blame the other for what happened in order to avoid prosecution.

When someone is prosecuted for harming a child, the offence charged will vary according to the circumstances, and it is important to distinguish these offences from others that may be charged, such as assault, murder and manslaughter:

Cruelty to a child
The offence of cruelty to a child is broad in its form and severity. Cases may be sentenced in the magistrates’ courts or Crown Court and involve ill-treatment and assault, neglect, abandonment, and failure to protect a child. In the vast majority of cases the offender is usually the parent or guardian of the victim but it could apply to others entrusted with the care of a child.
The existing guideline is one of the few remaining guidelines produced by the Council’s predecessor body that is still in force, so to provide consistency it is being updated to apply the approach used in the Council’s other guidelines.

It sets out proportionate sentencing levels to cover the wide range of situations that the courts deal with. One offence could involve someone who is an otherwise good parent putting a child at risk through a one-off lapse of care, while another could involve a parent guilty of a campaign of cruelty involving serious violence and sadistic behaviour that leads to a child suffering serious physical or psychological harm.

Causing or allowing a child to die or suffer serious physical harm
The main purpose of the legislation for this offence is that it can be prosecuted in instances where a child has died or suffered serious physical harm as a result of an unlawful act, such as an assault, by a member of the household but there is not enough evidence to prove which of the defendants committed the act and they may both blame each other. In such cases before the introduction of this legislation, neither defendant could be found guilty of murder, manslaughter or assault and so nobody would be held accountable. The guideline reflects the aims of the legislation, including for example the aggravating factor of an offender blaming others for the offence.

This offence can also be used in its own right, for example if someone in the household is charged with the murder or manslaughter of a child, another member may be convicted of causing/allowing death, if it can be proved that they foresaw, or should have foreseen, that their co-defendant would commit an unlawful act which risked serious physical harm to the child.

There are very low volumes of offenders sentenced for this offence, due to the fact that where a child has been killed, those responsible are likely to be charged with murder or manslaughter, and where the child was badly injured, a serious assault charge would normally be brought.

Failing to protect a girl from the risk of FGM
This offence is committed when a parent or carer of a girl under 16 allows FGM to take place unless they can show that they were not aware of such a risk and reasonably could not have been expected to be, or that they took reasonable steps in order to protect the girl. The issue of FGM has been of growing concern within Parliament and the public and so the Council is keen to provide a clear approach to ensure consistent and appropriate sentencing when offenders are convicted.

The guideline takes into account the psychological impact these offences can have on victims and acknowledges that by their very nature, all offences of FGM carry an inherent level of harm.

Sentencing Council member Mrs Justice Maura McGowan said:

“These offences are committed against particularly vulnerable victims – children – and so we want to ensure that sentencing properly reflects the harm they have suffered.

“Offences vary greatly – some offenders may be guilty of a one-off lapse of care which puts their child at risk of harm, while others may have inflicted a campaign of deliberate cruelty. The proposed guidelines set out a clear approach to deal with such a range of offending and ensures that cases involving significant force, a weapon or multiple incidents of cruelty are always treated as being in the highest category of culpability.”

The consultation on the draft guidelines runs until 13 September 2017 and can be accessed here.



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