My Lords, we now turn to the amendments relating to Clause 65, which clarifies and updates the law on child cruelty in Section 1 of the Children and Young Persons Act 1933. We had an informed debate on Clause 65 in Committee, during which a range of issues were raised in relation to Section 1 of the 1933 Act. In responding to that debate, my noble friend Lord Taylor undertook to reflect further on some of those issues over the summer. Having done so, we propose to make two further changes to Section 1.
The first is to clarify that the behaviour necessary to establish the ill treatment limb of the offence can be non-physical. In Committee the noble and learned Baroness, Lady Butler-Sloss, argued that as well as clarifying that the offence can be committed where the consequences of the behaviour in question are psychological, as Clause 65 already does, further amendments should be made to clarify that the offence can be committed by way of non-physical—for example, emotional—ill treatment and neglect. The Government’s view is that a failure to provide for a child’s emotional needs is beyond the neglect element of the offence, as a result of the House of Lords judgment in R v Sheppard. However, we consider that the ill treatment limb of the offence can relate to non-physical cruelty and Amendment 39 makes this explicit.
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Amendment 40 updates subsection (2B) of Section 1 of the 1933 Act. That subsection makes specific provision about the liability for the child cruelty offence in circumstances where the child under the age of three is suffocated while in bed with a drunken person. Although there was no detailed discussion on this issue in Committee, the amendment of the noble and learned Baroness sought to repeal this subsection. Following discussions with the police and the Crown Prosecution Service, we believe that this provision continues to have some utility. Accordingly, we propose to modernise rather than simply repeal it. Amendment 40 will extend the provision to cover circumstances where the person is under the influence of prohibited drugs. The amendment also deals with the reference to the suffocation occurring in a bed, so that the provision also covers circumstances where the infant dies by suffocation while lying next to a person aged 16 or over,
“on any kind of furniture or surface being used … for the purpose of sleeping”.
These changes will address the specific concerns expressed by campaigners about Section 1(2B) being too limited. I should make it clear that Section 1(2B) does not
create a separate offence but is a deeming provision—that is, if the circumstances described are proved by the prosecution, then the defendant is automatically held to have neglected the child under three in a manner likely to cause injury to its health, as required by Section 1(1), without the need for those ingredients of the offence to be proved individually.
Of course, taking a legitimately prescribed or over-the-counter medicine may make you drowsy. While it is not advisable then to sleep with a child, we are not convinced that if the child then dies, doing so should be deemed to amount to neglect. It should be clear, however, that it is not acceptable for anyone who illicitly consumes controlled drugs—as with alcohol—to then share a bed or sleeping place with a baby who is in their care.
The amended deeming provision applies only to the case of taking prohibited drugs, which are defined as illegally possessed controlled drugs under the Misuse of Drugs Act 1971. For the amended deeming provision to apply in the case of drugs, a person must have been in unlawful possession of a controlled drug immediately prior to taking it. They must also have been under the influence of that controlled drug when they went to bed or other place to sleep. In our view, the term “under the influence” of a prohibited drug generally means that a drug must have made a material difference to the person’s day-to-day function.
Finally, Amendment 56 to Clause 71 will ensure that the changes to the law on child cruelty are not retrospective. I hope that noble Lords will agree that these are sensible changes that, when taken with existing provisions in Clause 65, will ensure that Section 1 of the 1933 Act continues to be fit for purpose, which I know was the concern of Members of your Lordships’ House. I will respond at the end of the debate to Amendments 41 and 41A, also in this group, having heard the contributions of my noble friend Lady Walmsley, the noble Lord, Lord Ponsonby, and others. I beg to move.