Charities urge loophole to be closed

Children’s charities are renewing calls for the government
to review the law after a couple who abused a toddler received
“light” sentences, writes Maria

Michelle Oates and Adam Duke, from Rotherham, were jailed last
week for a catalogue of abuse.

Paramedics found the toddler, whose name and age cannot be
revealed, “limp and floppy” with first-degree cigarette
burns to her face and extensive bruising.

Hospital experts all agreed her injuries were non-accidental and
had been caused in the week before she was taken to hospital last
year, Sheffield Crown Court heard.

The court was told the injuries must have been caused by Oates
or Duke or both of them. But as neither admitted responsibility,
both could only be sentenced for a lesser charge of neglect.

Oates was jailed for 12 months and Duke for six months.

The sentences were criticised as “pathetic” by Dr
Michelle Elliot director of the child protection charity

She added: “They should have got 10 years in jail each.
They would have got more time for robbing a house. They damaged
this child beyond belief.”

Public policy lawyer of children’s charity NSPCC Barbara
Esam said the case illustrated that a legal loophole in the
Domestic Violence, Crime and Victims Act 2004 needed to be

While the government introduced a new offence of causing or
allowing the death of a child under the Act, it resisted calls from
children’s organisations and the Law Commission to extend
this to cover children who were seriously injured.

Under the Act, the offence applies where the death of a child or
vulnerable person is caused by a member of the household. It
applies to the person who caused the death, and other members of
the household who stood by and did not take “reasonable
steps” to protect the victim.

The changes were brought in to help courts uncover who was
actually responsible for the death, so that they could receive a
sentence which matched the seriousness of the crime.

The measures were aimed at tackling a loophole in the law where
those jointly accused could escape justice by remaining silent or
blaming each other.

When the Domestic Violence, Crime and Victims bill was going
through parliament last year, the then Home Office minister Paul
Goggins rejected the proposed amendment to close the loophole
further by including the offence of causing “serious

He argued that other areas of law – including the offence
of grevious bodily harm – already covered the issue.

Goggins also pointed to the “real difficulties” in
defining what injuries constituted “serious harm”.

During a parliamentary debate on the bill David Heath, the then
MP for Somerset and Frome accused the government of “closing
one loophole but leaving another one open”.

The Law Commission put recommendations to the government during
the bill stages of the Act to create a new offence where a person
had failed “as far as is reasonably practicable” to
protect a child from serious harm “deriving from ill

The Commission recommended a maximum sentence of seven years
imprisonment for the offence.

Judge Alan Wilkie QC said: “The problem of how fairly and
accurately to establish guilt for these most serious and
distressing of crimes is pressing and difficult. We believe the
recommendations we are making will greatly assist the courts in
achieving justice in these cases.”

The Commission highlighted around 75 per cent of known cases
where the person who had inflicted death or serious injury was not

Now the case of Oates and Duke is reigniting the debate, just
weeks after the Domestic Violence, Crime and Victims Act 2004 came
into force.

The Children’s Legal Centre described the sentences of
Oates and Duke as “too light,” and argued that the
Domestic Violence, Crime and Victims Act 2004 should apply to cases
of serious injury.

In court last week, Duke and Oates admitted child neglect and
were sentenced on the basis they didn’t cause any of the
injuries and didn’t know the full extent until the child was
in hospital.

Judge John Swanson told the defendants: “The injuries are
largely non-accidental. It appears that they must have been caused
by one or both of you but I’m bound by your basis of plea and
by the evidence which has been produced. Were I able to sentence
you for causing the injuries the sentence would have measured

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