A.S. v. PAUL MULVANNEY AUTHORITY REPORTER IN APPEAL BY STATED CASE IN TERMS OF S51(11) OF THE CHILDRENS COTLAND ACT 1995 IN RESPECT OF THE CHILD C.S. [2012] ScotSC 46 (12 April 2012)

A.S. v. PAUL MULVANNEY AUTHORITY REPORTER IN APPEAL BY STATED CASE IN TERMS OF S51(11) OF THE CHILDRENS COTLAND ACT 1995 IN RESPECT OF THE CHILD C.S. [2012] ScotSC 46 (12 April 2012)

The sheriff principal held that the sheriff erred in law by finding the necessary mens rea for assault, wilful ill-treatment, wilful neglect, or culpable and reckless conduct was established. The sheriff's findings, particularly that the mother did not intend to harm the child and believed no harm would result, negated the required mental element for these offences. A deliberate act alone, without intention to harm or recklessness as to harm, is insufficient to establish assault or the statutory offences. The appeal was allowed, and the referral was discharged.

Citation
[2012] ScotSC 46
Parties
Appellant: A. S.; Respondent: Paul Mulvanney, Authority Reporter; Safeguarder: Miss Marshall
Jurisdiction
Scotland
Judgment Date
12 April 2012
Procedural Posture
Appeal by Stated Case Under S. 51(11) of the Children's (scotland) Act 1995 / Appeal Decision by Sheriff Principal
Outcome
Appeal allowed; referral discharged.
Legal Topics
Assault, Wilful Neglect, Wilful Ill Treatment, Culpable and Reckless Conduct, Children's Hearings, Mens Rea, Actus Reus
Child Protection Criminal Law Family Law Assault Wilful Neglect Wilful Ill Treatment Culpable and Reckless Conduct Children's Hearings +2 more

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Parties

A. S.

Appellant

Paul Mulvanney, Authority Reporter

Respondent

Miss Marshall

Safeguarder

Procedural Posture

Appeal by Stated Case Under S. 51(11) of the Children's (scotland) Act 1995 / Appeal Decision by Sheriff Principal

Legal Issues

  1. 1 Whether the sheriff erred in law in finding the grounds of referral established for assault, wilful ill-treatment, wilful neglect, or culpable and reckless conduct against the appellant in respect of the child C. S.
  2. 2 Whether the sheriff correctly applied the legal requirements for mens rea and actus reus for the alleged offences.

Ratio Decidendi

The sheriff principal held that the sheriff erred in law by finding the necessary mens rea for assault, wilful ill-treatment, wilful neglect, or culpable and reckless conduct was established. The sheriff's findings, particularly that the mother did not intend to harm the child and believed no harm would result, negated the required mental element for these offences. A deliberate act alone, without intention to harm or recklessness as to harm, is insufficient to establish assault or the statutory offences. The appeal was allowed, and the referral was discharged.

Court Disposition

Appeal allowed; referral discharged.

Orders

  • Answers to questions 1, 2, 3, 4 and 9 in the negative.
  • Declines to answer the remaining questions of law as unnecessary.