APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Menzies Lord Philip	[2012] HCJAC 116 [2012] XJ415/12 OPINION OF THE COURT delivered by LORD CLARKE in APPEAL AGAINST CONVICTION BY STATED CASE by A W Appellant; against PROCURATOR FISCAL ABERDEEN Respondent: _____________

Appellant: McKenzie, Solicitor Advocate; Paterson Bell, Edinburgh

Respondent: Harper, A.D.; Crown Agent

11 July 2012

[1] This appeal by way of stated case relates to a conviction of the appellant A W, which was made under section 12 of the Children and Young Persons (Scotland) Act 1937. It is important to set out the provisions of the Act that were relied upon for the charge that was brought against the appellant. They are as follows:

(1) Sub section (1) of section 12 states:

"If any person who has attained the age of sixteen years and 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, willfully 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",

and there is then a deeming provision in sub section (2) which is as follows:

(2) "For the purposes of this section

(a) a parent or other person legally liable to maintain a child or young person or the legal guardian of a child or young person shall be deemed to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing, medical aid or lodging for him, or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided under the enactments applicable in that behalf".

[2] The circumstances of this case were that the appellant who is the mother of the child in question, M P R, attended at The Royal Aberdeen Hospital on 6 January 2009 with the child. She was seen at least about 6.40 in the evening. The child had on her chest a large mark which was described as a red area that was similar to a burn which was weeping. The child's vest was in fact sticking to her at that stage. The appellant reported that there had been some incident with detergent on the 4 January which had resulted in the child having come into physical contact with that detergent and that she had not seen anything untoward in relation to a chest injury until she had noticed a small blister on the chest on the 6 January.

[3] The appellant at that time was being supported by the Social Work Department in Aberdeen and was living in accommodation which was designed to give her that support.

[4] One of the matters that the sheriff in his note records the appellant as saying in her evidence was that:

"She had been receiving a report from social workers who visited most days in the morning and the evening. There had been visits on 5 and 6 January, morning and evening by a social worker called E A. On 6 January she had shown the mark on the child's chest to E A who told her to take the child to hospital".

[5] Although there is no finding in fact to that effect but the sheriff does not go on to indicate that he disbelieved the appellant in that respect. In any event there was no positive evidence before the sheriff to indicate that the mark on the child's chest had been as extensive earlier in the day, as it was seen to be in the evening when the child attended at the hospital. The medical evidence that was led was such that none of the medical experts could say that that was or was not the position.

[6] Before us Ms McKenzie for the appellant, in the first place, took the point that there had been a submission of no case to answer before the sheriff to the effect that there had been a failure to identify by corroborative evidence the appellant. There had been one dock identification by one of the medics and nothing more.

[7] In the context of this case we are satisfied that this point really has become somewhat academic and, in any event, we are not persuaded that there was any great force in it. The appellant did not disclaim the special capacity of the mother of the child in question and there was other evidence from which the sheriff was entitled to infer that the appellant was indeed who she was. Apart from anything else she gave evidence herself and the matter became as we said somewhat academic.

[8] There were more substantial submissions made by Ms McKenzie in respect of the sheriff's approach to the substance of the matter and we have already in some ways adverted to these. Put short, the sheriff does appear to have proceeded on the basis that the mark on the chest was as graphic, as it appears on the photographs we had before us, earlier in the day on the 6 January and because of that, the delay that had emerged from earlier in the morning until the arrival of the appellant at the hospital with the child in the early evening was such that would amount to a breach of the statutory provisions to which we have previously referred.

[9] We have already alluded to the fact that there was simply no evidence to support that conclusion that the look of the injury had remained the same throughout that day. In any event, we consider that the sheriff paid inadequate attention to the wording of section 12(1)(2). It appears to us that it cannot be said that the evidence that was before the sheriff was such as to demonstrate that there had been willful ill treatment or neglect of this child by the appellant. She sought advice, it seems, from the social worker who was supporting her and took the advice immediately that she should go to the hospital with the child. There is no suggestion that the treatment that the child received then was required to be greater than would have been the case if she had gone earlier in the day or anything of that sort. The proviso, or the deeming provision in the section, refers to failure to take steps to obtain medical aid. In this case, the appellant did take steps and any delay in this case, in our view, could not be stigmatized as something involving willful neglect. For these reasons we shall answer the questions posed by the sheriff in the following way. In relation to question one, we answer that in the negative. In relation to question two we answer that in the negative and in relation to question three we also answer that in the negative.

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