Key offences and liability

Powers of individuals caring for children to safeguard

An individual without parental responsibility who’s caring for a child may do what is reasonable to safeguard or promote a child’s welfare while the child is in his or her care.

This is often described as having the minimum power necessary to provide day-to-day care. This power would not allow the individual to act as the individual with parental responsibility would – for example, to consent to major elective surgery, to obtain a passport for the child, or to change the child’s surname.

Reference: Section 3(5) of the Children Act 1989
People who care for children ‘should act as a reasonably prudent parent’.

Reference: Ricketts v Erith Borough Council [1943] 2 All ER 629

Anyone present is entitled to intervene to prevent an actual or threatened criminal assault taking place before them. Any threat of immediate significant violence is enough, particularly if it involves a young child. This could be by restraining the assailant or by removing the defenceless victim from the assailant's reach.

Reference: Paragraph 21 of G (R on the application of) v Nottingham City Council [2008] EWHC 152 (Admin)

An organisation may be liable if a child is injured because of their negligence or lack of supervision.

Reference: Carmarthenshire County Council v Lewis [1955] AC 549

Criminal liability for cruelty to children under sixteen

An individual with responsibility for a child might be criminally liable for wilfully assaulting, ill-treating (whether physically or otherwise), neglecting, abandoning, or exposing them to unnecessary suffering or injury to mental or physical health.

This includes where they wilfully cause or allow others to harm the child.

In this context, neglect includes the failure to provide adequate food, clothing, medical aid or lodging for the child. It also includes failure to take steps to try to secure these things for the child.

Reference: Section 1 of the Children and Young Persons Act 1933

For the liability described above, ‘wilful’ means deliberately acting or not acting due to a lack of care for the child. For example, someone who has genuinely failed to appreciate that a child in their care needs medical care would not commit a crime of wilful ill-treatment or neglect.

Reference: R v Sheppard [1981] AC 394

An offence is committed when someone fails to summon medical aid for a child in need of it, even if in hindsight it becomes clear that a medical professional could not have helped.

Reference: R v S and M [1995] Crim LR 486

Sexual offences when in a position of trust

It’s an offence for someone in a ‘position of trust’ to engage in sexual activity with a child in their care, even if the child is above the age of consent (16).

‘Positions of trust’ include:

• teachers and others working in schools and educational settings
• care workers and people working in residential care homes
• doctors and other health professionals
• people working in voluntary homes or children’s homes.
• people coaching, teaching, training, supervising or instructing in a sport or a religion on a regular basis.

For an offence to take place, the assailant would need to know (or could reasonably have been expected to know) that they were in a position of trust when the act took place. They would also need to not reasonably believe that the child was 18 or over.

Reference: Sections 16 – 24 of the Sexual Offences Act 2003 (as amended by the Police, Crime, Sentencing and Courts Act 2022)