Section 5 of the Domestic Violence, Crime and Victims Act 2004 provides for an offence of causing or allowing the death of a child or vulnerable adult. It was introduced to deal with circumstances when the death of a child or vulnerable adult had occurred but there was insufficient evidence to show which member of the household was responsible.
The Domestic Violence, Crime and Victims (Amendment) Act 2012 which came into force on 2 July 2012, has extended the section 5 offence beyond cases where there has been a death. Section 5 now also encompasses causing or allowing serious physical harm to a child or vulnerable adult.
The offence is limited to cases where an unlawful act has occurred and does not include situations where serious physical harm has occurred by accident. It will only apply to members of the household who had frequent contact with the child or vulnerable adult, and who could reasonably have been expected to be aware of the risk of serious physical harm to the victim and taken steps to protect the victim from such harm. This is not limited to family members and carers. New partners, who may not be described as carers, may be living in the household and have frequent contact with the child.
A person will be guilty of the offence if they failed to take steps to prevent the serious physical harm even if they did not carry out the unlawful act themselves. The court will look at the individual circumstances in each case before deciding what steps should have been taken eg, if a defendant was suffering domestic violence themselves then the steps they could have taken may be more limited.
The offence is limited to situations where there was a significant risk of serious physical harm occurring. It will not apply in cases where there was no history of past abuse or no reason to suspect a risk of serious physical harm, as in these circumstances other members of the household could not be expected to have taken any steps to protect the victim.
Like the original section 5 offence the prosecution will not need to prove whether the defendant caused the harm or allowed the harm to happen. This is to allow for situations where defendants blame each other or there is not enough evidence to show which one actually caused the harm.
The offence will apply to those who are 16 years or older, unless they are the mother or father of the child, in which case they can be under 16. The maximum penalty will be ten years imprisonment.