Members will be aware that the bill contains a statutory aggravation in section 4. The aggravation provides that if the accused involved a child in committing the offence, the aggravation applies. A child can be involved in three ways: if the accused directed behaviour at the child; if the accused made use of a child in directing behaviour at their partner or ex-partner; and if a child saw, heard or was present during incidents of behaviour forming part of the course of abusive behaviour that constitutes the offence. The aggravation is intended to ensure that the harm caused to children when they witness or are involved by the perpetrator in the abuse can be reflected by the court when sentencing the perpetrator.
Members have heard stakeholders who represent children affected by domestic abuse express some concern that the aggravation in the bill does not reflect the harm that is caused to children by growing up in an environment in which their parent or carer is being abused. That criticism has focused on cases in which a child is in the environment in which the abusive behaviour is being carried out but is not directly involved as such, in which case the current aggravation in section 4 would not apply.
Examples of the harmful effects of domestic abuse on children that are not covered by the aggravation include: coercive and controlling behaviour that has the effect of isolating a child, as well as the primary victim, from friends, family or other sources of support; abusive behaviour that undermines the ability of the non-abusing parent or carer to look after the child by, for example, restricting their access to transport, thereby limiting their ability to get a child to doctor’s appointments, or restricting their access to money, thereby limiting their ability to provide essentials for a child; or the harm that is caused when a child is aware that the abuse is taking place, even though they never see or hear it and are never present when the abusive behaviour takes place.
The stage 1 report noted those concerns and asked the Scottish Government to respond to evidence that the reference in the current approach to the aggravation being established where a child
“sees or hears, or is present during”
an incident of abusive behaviour was too narrow. It was argued in that evidence that children in the care of victims of abuse were likely to suffer trauma as a result of that abuse, whether or not they directly witnessed abusive behaviour or incidents, and therefore that there was an aggravation. Amendments 4 to 9 respond to those concerns by widening the scope of the aggravation.
Amendment 5 provides that, in addition to the existing ways in which the offence can be aggravated, it is also aggravated
“if a reasonable person would consider the course of behaviour, or an incident ... that forms part of the course of behaviour, to be likely to adversely affect a child usually residing with”
the victim or the perpetrator.
Amendment 9 adds to that by providing that references to a child being adversely affected include
“causing the child to suffer fear, alarm or distress.”
That is a non-exhaustive definition, so other ways in which a child was adversely affected could be taken into account if the court was satisfied by the evidence in a particular case. For example, if a perpetrator controls a victim’s movements to such an extent that they are unable to leave the house to ensure that their children get to school or a doctor’s appointment, the court could determine that that amounts to behaviour that is likely to adversely affect a child.
As with other aggravations, evidence from a single source is sufficient for the aggravation to be proven. That is provided for in section 4 already. The aggravation uses a reasonable person test, so there is no requirement for the prosecution to prove that the child was actually adversely affected provided that the court is satisfied that a reasonable person would consider it likely that the child would be adversely affected by the perpetrator’s actions.
The aggravation is limited to children who usually reside with the victim or the perpetrator. That reflects the feedback that living in an environment in which domestic abuse is perpetrated is what can most adversely affect a child.
Amendment 4 paves the way for amendment 5. The two current limbs of the aggravation will accordingly be split between the present subsection (2) and a new subsection (2A), which sits alongside new subsection (2B) in amendment 5.
Amendments 6 to 8 are technical and just for the avoidance of doubt in relation to the operation of the aggravation as a whole.
Amendment 6 provides that it is not necessary to prove that a child had awareness of, understood the nature of, or was adversely affected by the accused’s behaviour for the aggravation to be proven.
Amendment 7 ensures that the three limbs of the aggravation are capable of being applied separately but can also be used in combination with one another when more than one applies in a particular case.
Amendment 8 ensures that nothing in the formulation of the aggravation prevents evidence from being led on certain impacts on a child, even though such impacts are not essential to prove the aggravation.
I move amendment 4.