FB v Procurator Fiscal, Aberdeen

12th June 2014

Background

On 26th January 2012, the appellant, FB, was convicted of the following charge.

“On 26 January 2012, at 25E Don Place, Woodside, Aberdeen, you being a person having attained the age of 16 years and who has parental responsibilities in relation to a child or young person under that age or has charge or care of a child or such a young person namely TAB, born 27 April 2011, you FRB or B did wilfully cause her unnecessary suffering or injury to health and did fail to adequately supervise said child resulting in a quantity of hot liquid to make contact with her skin resulting in her sustaining an injury; CONTRARY to the Children and Young Persons (Scotland) Act 1937, section 12(1) as amended.”

The specifics of the charge alleged that the appellant failed to “adequately to supervise the child, resulting in a quantity of hot liquid making contact with her skin and causing injury.”

Appeal

The appeal, submitted on behalf of FB, argued that charges under the 1937 Act must contain a wilful component. The relevant section of the Act is as follows:

“If any person who has attained the age of sixteen years and who has parental responsibilities in relation to a child or to a young person under that age or has charge or care of a child or such a young person wilfully ill-treats, neglects, abandons, or exposes him, or causes or procures him to be 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” (emphasis added)

The appeal contends that there was no evidence that the appellant acted with wilful neglect that resulted in the injuries.

Conclusion

In response it was argued that the charge did not specify “neglect” but it is implicit that that is what the charge is of. Neglect had been defined in Clark v HMA1968 as:

“… 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”

And it was necessary “..prove that it was wilful in the sense of being deliberate or intentional, but … without necessarily having any intent to harm the child .”

The prosecution need not allege that FB sought to harm the child, merely that their actions were deliberate or intentional.

The Sheriff has previously observed: “I am entitled…… to infer that….[she] allowed a hot liquid to be in the locus and the child had access to it”.

The appellant had gone for a shower and had left the child unattended for 10 minutes while in the vicinity of hot water. While she did not intend for the child to be scalded she took intentional actions that resulted in the neglect of the child.

Due to the reasons provided above the appeal was refused.

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