Assault on children

Applicability

This guideline sets out principles that should be considered when the victim of an assault is a child (aged 15 years and under).

General principles

Assessing seriousness

The primary factor in considering sentence is the seriousness of the offence committed; that is determined by assessing the culpability of the offender and the harm caused, intended or reasonably foreseeable.3 A community sentence can be imposed only if the court considers that the offence is serious enough to justify it4 and a custodial sentence can be imposed only if the court considers that a community sentence or a fine alone cannot be justified in view of the seriousness of the offence.5 The Council has published a definitive guideline that guides sentencers determining whether the respective thresholds have been crossed. 6

In considering the seriousness of an offence committed by an offender who has one or more previous convictions, the court must consider whether it should treat any of them as an aggravating factor having regard to the nature of the offence to which each conviction relates and its relevance to the current offence, and the time that has elapsed since the conviction.7

When dealing with cases involving assaults committed by adults against children, many of which involved some of the aggravating factors described below, the Court of Appeal has given a consistent message that an assault against a child will normally merit a custodial sentence. The Council’s view is that such a presumption will not always be appropriate, but in all cases, the fact that the victim is a child is likely to aggravate the seriousness of the offence where the offender is an adult.

Aggravation

The fact that the victim of an assault is a child will often mean that the offence involves a particularly vulnerable victim.

For all offences of assault, where the offence has been committed by an adult offender and the victim is a child under 16 years, the most relevant aggravating factors, as listed in the Council guideline Overarching Principles: Seriousness, are likely to be those set out below. Many of those are most likely to be present where the defendant has caring responsibilities for the child:

  • Victim is particularly vulnerable
  • Abuse of power
  • Abuse of position of trust
  • An especially serious physical or psychological effect on the victim, even if unintended
  • Presence of others e.g. relatives, especially other children
  • Additional degradation of the victim

Additional aggravating factors

  • Sadistic behaviour
  • Threats to prevent the victim reporting the offence
  • Deliberate concealment of the victim from the authorities
  • Failure to seek medical help

Many offences committed by adults against children will involve an abuse of power and many also will include an abuse of a position of trust. The Education Act 1996 abolished the right of teachers and other school staff to administer corporal punishment.8

The location of the offence, for example the fact that an offence takes place in the child’s home, and the particular circumstances, such as the fact that the victim is isolated – common aggravating factors in cases of child cruelty – may also be present in relation to individual offences of assault against children.

Mitigation

An offender might seek to argue that any harm caused to the child amounted to lawful chastisement and a court might form the view that the offender held a genuine belief that his or her actions amounted to no more than a legitimate form of physical punishment. The defence of lawful chastisement is available only in relation to a charge of common assault. Where that defence is not available, or, in relation to a charge of common assault, such a defence has failed, sentence for the offence would normally be approached in the same way as any other assault.

There will be circumstances where the defendant has been charged with an assault occasioning actual bodily harm and the court finds as fact that the defendant only intended to administer lawful chastisement to the child, and the injury that was inflicted was neither intended nor foreseen by the defendant.

Although the defendant would have intended nothing more than lawful chastisement (as currently allowed by the law), he or she would have no defence to such a charge because an assault occasioning actual bodily harm does not require the offender to intend or even foresee that his act will result in any physical harm; it is sufficient that it did. Such a finding of fact should result in a substantial reduction in sentence and should not normally result in a custodial sentence. Where not only was the injury neither intended nor foreseen, but was not even reasonably foreseeable, then a discharge might be appropriate.

Other factors relevant to sentencing

The adverse effect of the sentence on the victim

In many circumstances, an offence of assault on a child will cause the court to conclude that only a custodial sentence can be justified. Imposition of such a sentence will often protect a victim from further harm and anguish; some children will be less traumatised once they are no longer living with an abusive carer.

However, where imprisonment of the offender deprives a child victim of his or her sole or main carer (and may result in the child being taken into care), it may punish and re-victimise the child.

In view of the seriousness of the offence committed and the risk of further harm to the victim or other children, even though a child may be distressed by separation from a parent or carer, imposing a custodial sentence on the offender may be the only option. However, where sentencing options remain more open, the court should take into account the impact that a custodial sentence for the offender might have on the victim.

There will be cases where the child victim is the subject of concurrent care proceedings and, indeed, the child’s future care arrangements may well have been determined by the time the offender is sentenced. Both the sentencing court and the Family Court need to be aware of the progress of any concurrent proceedings.

In considering whether a custodial sentence is the most appropriate disposal for an offence of assault on a child the court should take into account any available information concerning the future care of the child.

Offenders who have primary care responsibilities

The gender of an offender is irrelevant for sentencing purposes. The important factor for consideration is the offender’s role as sole or primary carer of the victim or other children or dependants.

In cases where an immediate custodial sentence of less than 12 months is justified, it is possible that a suspended sentence order (where available) might be the most appropriate sentence. This could enable the offender, subject to the necessary risk assessment being made, to resume care for, or at least have regular contact with, the child and could also open up opportunities for imposing requirements to rehabilitate and support an offender in need. In practice, this principle is likely to benefit more women than men, firstly because women commit the larger proportion of offences and secondly because men are less likely to be the sole or primary carers of children but the principle is established on the grounds of carer status and not gender.

Where the offender is the sole or primary carer of the victim or other dependants, this potentially should be taken into account for sentencing purposes, regardless of whether the offender is male or female. In such cases, an immediate custodial sentence may not be appropriate and, subject to a risk assessment, the offender may be able to resume care for or have contact with the victim.