Commentary on Sections Section 1: Causing or allowing a child or vulnerable adult to suffer serious physical harm
7.Section 1  amends section 5 of the 2004 Act so as to extend the offence in section 5 to cover cases of causing or allowing a child or vulnerable adult to suffer serious physical harm. For the most part it does this by inserting references to “serious physical harm” at appropriate places in section 5.
8.The same conditions which apply in the case of causing or allowing the death of a child or vulnerable adult as set out in section 5 of the 2004 Act will therefore also apply for causing or allowing serious physical harm. The extended offence will therefore:
	be limited to cases where the victim has died or has suffered serious physical harm as a result of an unlawful act (section 5(1)(a) of the 2004 Act). It will not apply to a death or serious physical harm which results from an accident, or from a natural cause.
	apply only to members of a victim’s household (section 5(1)(a)(i) of the 2004 Act) who had frequent contact with the victim (section 5(1)(a)(ii) of the 2004 Act), and could therefore reasonably be expected to have been aware of a risk of serious physical harm to the victim, and to have protected the victim from such harm. The household member must have either caused the victim’s death or the serious physical harm or failed to take reasonable steps to protect the victim (section 5(1)(d) of the 2004 Act).
	not require the prosecution to prove whether a defendant was responsible for causing the death or serious physical harm or for allowing the death or serious physical harm (section 5(2) of the 2004 Act).
	apply only where the victim was at significant risk of serious physical harm (section 5(1)(c) of the 2004 Act). The risk is likely to be demonstrated by a history of violence towards the vulnerable person, or towards others in the household. The extended offence will not apply if there was no previous history of abuse, nor any reason to suspect a risk. Where there is no reason to suspect the victim is at risk, other members of the household cannot reasonably be expected to have taken steps to prevent the abuse.
	apply only to those who are 16 or over unless they are the mother or father of the victim (section 5(4) of the 2004 Act). Members of the household aged under 16 will not have a duty of care or be expected to take steps to prevent a victim coming to harm. In particular, a child under 16 will have no duty to prevent his parents from harming a sibling. The parents of a child will be expected to take reasonable steps to protect their child even if they themselves are under 16.
9.Subsection (5) amends section 5(7) of the 2004 Act so that the maximum penalty of 14 years applies only in the case of causing or allowing a person’s death. Subsection (6) inserts a new section 5(8), providing a maximum penalty of 10 years in the case of causing or allowing serious physical harm.
10.Subsection (8) makes transitional provision to ensure that the operation of the extended offence will not have retrospective effect.