Bernese News 4th August 2018


Policy Position: The Animal Welfare Act and the protection of offspring



1 Introduction


1.1 The welfare of dogs is often compromised as a result of inherited disease or poor conformation. Inherited conditions can affect many breeds, or be particularly prevalent in some. Such conditions may affect large numbers of dogs and have adverse impacts lasting throughout life, causing sustained pain and discomfort. Much inherited disease is preventable. It is frequently caused by a lack of appropriate health testing prior to the selection of breeding parents. Yet, despite the seriousness of the harms that frequently arise, and their prevalence, there is currently little or no protection in law for offspring who suffer as a result of poor breeding practices, or penalisation of those who negligently or recklessly breed dogs together which may have genetic defects. This Paper provides some suggestions for progress.



2 Issues



2.1 The problems associated with inherited disease in dogs have been highlighted in a series of authoritative publications including those provided by the Companion Animal Welfare Council (CAWC)18, RSPCA1, the AllParty Parliamentary Group for Animal Welfare (APGAW)2, and the Independent Inquiry into Dog Breeding3. These reports are consistent in emphasising the range and severity of harms associated with inherited disease, their preventability, and the urgency with which action needs to be taken.


2.2 Some examples of inherited diseases are: early onset mitral valve disease and chiari malformation syringomyelia in the Cavalier King Charles Spaniel; hip dysplasia in many larger breeds such as the Labrador, German Shepherd Dog, Golden Retriever; elbow dysplasia in


many larger breeds; severe atopy in the West Highland White Terrier; malignant histiocytosis in the Flatcoated Retriever; dilated cardiomyopathy in the Dobermann; osteosarcoma in the Rottweiller; hydrocephalus and patellar luxation in the Chihuahua. Many breeds suffer from a variety of inherited eye diseases such as progressive retinal atrophy (PRA) and diseases of the eye as a result of selection for particular physical traits such as diamond eye, entropion, ectropian. Many breeds suffer from immune mediated diseases as a result of inbreeding such as thrombocytopenia, haemolytic anaemia, lupus. A whole host of other conditions affect different breeds. In a review of inherited conditions published in 201020, 312 non‐conformation linked inherited disorders were identified, with German Shepherd dogs and Golden Retrievers associated with the greatest number of disorders Extensive data on the prevalence of such conditions is available from a range of authoritative sourcese.g.4,5,6,19. (Further examples of inherited conditions are provided in the Appendix).


2.3 Significant welfare problems are associated also with poor conformation in dogs arising often from selection for extreme ‘appealing’ characteristics, or rigid adherence to breed standards which fail to adequately consider health and welfare consequences. In a review of conformation‐linked disorders published in 200919, each of the most popular 50 breeds was found to have at least one aspect of its conformation predisposing it to a disorder; and 84 disorders were either directly or indirectly associated with conformation. Conformation‐ related harms affect very large numbers of dogs.


2.4 Severe problems are frequently associated, for example, with ‘brachycephaly, the occurrence of very flat muzzles, characteristic of breeds such as Pugs, English bulldogs, French Bulldogs and Boston Terriers. Such problems include airway obstruction, respiratory complications, eye infection and injury, and skin complaints.e.g.7,8. Brachycephalic dogs are, moreover, at increasing risk of a wide range of more ‘general’ conditions including cancers and heart disease9. These circumstances are particularly concerning as the number of registrations of such dogs has increased substantially. The British Veterinary Association (BVA) and other welfare bodies have called for urgent intervention10.


2.5 Inherited disease is particularly likely to be expressed under conditions where dogs are highly in‐bred. Inbreeding increases the


likelihood that offspring will inherit deleterious genes from both parents. It more generally increases disposition to disease, and is associated particularly with disorders in immune system functioning. Irresponsible breeding decisions include failures to ensure that parents chosen are not closely related.


2.6 The harmful consequences of poor selection of breeding parents goes beyond that of the individual dogs. The pursuit of dogs with fashionable, saleable but harmful conformations has led to a severe narrowing of the breed gene pools which may in some cases, as with the English Bulldog, potentially preclude future welfare improvement11.


2.7 In the United Kingdom, the Animal Welfare Act (2006) (AWA) (applying substantially to England and Wales), the Animal Health and Welfare (Scotland) Act (2006), and the Welfare of Animals Act (Northern Ireland) (2011), provide protection for kept, domesticated animals. In England and Wales, Section 4 of the AWA protects such animals from ‘unnecessary suffering’, while Section 9 of this Act requires that those responsible for an animal ensure that its welfare needs are met ‘to the extent required by good practice’ (Section 9,1).


2.8 The Act provides that the relevant national authority may make regulations ‘for the purpose of promoting the welfare of animals for which a person is responsible, or the progeny of such animals’ (Section 12,1). The AWA explicitly does not apply to foetal or embryonic animals (Section 1,2). However, Section 1,3(c) states that the relevant national authority may by regulations for all or any of the purposes of this Act to amend subsection 1,2 to extend the application of the Act to an animal from such earlier stage of its development as may be specified in the regulations.


2.9 There is no explicit reference in the AWA to provisions for the protection of progeny, beyond the potential to develop appropriate regulation as above (Section 12.1 and Section 1.3 (c)). In particular, there is no explicit clause which refers to duties of an animal keeper to take responsible breeding decisions. There may, however, be merit in a legal argument to interpret Section 4 of the Act to apply to the suffering of offspring (see 3.1 below). Section 9 of the Act, relating to the requirement to meet an animal’s welfare needs, places responsibility


only for meeting the needs of a currently living, kept animal (see AWA Section 3).


2.10 The lack of clear provision for responsibility to avoid unnecessary suffering of offspring, or for responsibility to meet defined needs of offspring (eg for protection from ‘pain suffering, injury or disease, as applies to currently kept animals, Section 9, 2) means that the progeny of dogs lack protection in the UK from reckless or negligent breeding decisions that can lead to suffering.


2.11 The UK is behind many other countries with respect to regulatory protection of offspring, particularly in regard to a number of other European states12. Currently 15 of the 28 EU states have some regulatory provision for the protection of offspring. These states include: Austria, Belgium, Czech Republic, Finland, France, Germany, Greece, Hungary, Lithuania, Luxembourg, Malta, Netherlands, Slovakia, Slovenia, and Sweden. Such provisions range from:


· general provisions prohibiting the breeding of animals where adverse welfare outcomes may be anticipated

· prohibition of breeding of animals which would result in increased probability of specific adverse health outcomes

· prohibition of breeding from animals that have defined inherited diseases

· prohibition of breeding of animals that would result in exaggerated conformation

· prohibition of breeding of animals if behavioural problems associated with hereditary factors are expected

· explicit expectation that breeders aim to produce animals in good health and with good temperament

· prohibition of breeding from animals with adverse anatomical or physiological characteristics

· prohibition of breeding in a manner which harms the welfare of the parent or offspring

· avoidance of permanent disability in offspring






3 DBRG Position



This section considers steps that might be taken to protect the welfare of offspring through regulation or associated measures.


3.1 Application of the principle of prevention of ‘unnecessary suffering’


3.1.1 The AWA (Section 4) prohibits the causing of ‘unnecessary suffering’ to any commonly domesticated vertebrate ‘under the control of man’. It may be argued that this provision might equally protect offspring as well as currently living animals. The action of a person may cause immediate or delayed suffering to a kept animal, or later suffering to the offspring of an animal as a consequence of an intentional, reckless or negligent breeding decision.


3.1.2 However, for a prosecution to be successful it would, amongst other things, have to be determined that there was a causal link between the breeding decision and inherited defect in the offspring, creating unnecessary suffering. The current exemption in the Act for animals in ‘foetal or embryonic forms’, could be argued to break’ the causal link with respect to protection, and render any potential prosecution under Section 4 vulnerable to challenge.


3.1.3 An alternative position is that while the effect (ie of the breeding decision on later suffering) is ‘delayed’, a causal relation does nonetheless exist between intentional actions taken (or failures to act) and later suffering to the live, independently‐living offspring. Harmful genetic effects with welfare consequences are expressed in the majority of cases after birth, not while in embryonic or foetal form, often manifesting months or years later. According to the latter view, failure to extend protection to foetal or embryonic forms, should not prevent establishing a causal relation between breeding decision and suffering of offspring arising from it.


3.1.4 Achieving a successful prosecution relating to causation of unnecessary suffering under the AWA, Section 4, would also depend, however, inter alia:


· on establishing ‘after the fact’, and likely at some time removed from the original breeding decision (potentially months or years later) that suffering has occurred;

· that welfare harms attributable to the breeding decision are significant

· that the cause of welfare harm is unequivocally partly or wholly genetic;

· that the breeder might reasonably have known that their act (or failure to act) with respect to the breeding decision would have led to the suffering caused (see Sections 4.1 and 4.3, AWA for relevant conditions).


3.1.5 Further, the questions of the mechanisms by which genetic factors influence welfare and the expression of disease, and their relation to suffering, are both technical and complex (see below). This is likely to make the application of the AWA to breeding decisions still more uncertain and difficult. It would be inappropriate, in particular, to rely on the courts to determine whether or not criminally irresponsible breeding decisions had been taken. Expert veterinary opinion would have to be sought and it is likely that there would be both a very high level of caution in convicting defendants, and much inconsistency. In these circumstances, it may be anticipated that there would be considerable reluctance by prosecution agencies to progress potential welfare cases, as they may conclude that such cases would not meet the twin tests of sufficiency of evidence, and of meeting the public interest to progress a case.


3.1.6 In theory, then, without further legislative change, AWA Section 4 might be able to be applied to breeding decisions. This could, on the face of it, be facilitated by, for example, explicit guidance both to members of the public potentially involved in breeding dogs (e.g. through a specific Code of Practice), and to the courts in interpretation of the Act. However, it is likely in practice that meeting the evidential burden required to satisfy the conditions the AWA sets to establish responsibility for causation of unnecessary suffering would be too onerous in the case of most breeding decisions, and may be fundamentally undermined if exemption for foetal and embryonic forms is interpreted to break the causal chain between act and consequence. While the Act makes provision to extend protection to such forms, this is most likely to be on the basis of evidence establishing their capacity for


suffering, and such amendment may not be relied on. Such constraints, in sum, may mean that application of Section 4 of the AWA as a remedy may be effective in only exceptional cases, if at all.


3.1.7 There appears to be considerable uncertainty as to the potential for application of AWA Section 4 to breeding decisions affecting offspring. While DEFRA has recently stated that it may be, expert legal opinion, including that sought from potential prosecuting agencies, appears highly equivocal about its potential to be applied here21. This uncertainty implies that clearer and more directly relevant regulation is needed.


3.2 Secondary regulation under the Animal Welfare Act


3.2.1 A preferable alternative to the retrospective application of Section 4 of the AWA to prevent suffering of progeny as a result of breeding decisions taken, and reliance on the courts to do so, would be the development of specific, prospective secondary legislation which creates a duty of care when taking breeding decisions that may affect the welfare of offspring. Such legislation might not only specify key principles for lawful breeding decisions, but set clear conditions under which offences would occur. The Act provides under Section 12.1 that the relevant national authority could make such regulations, ‘for the purpose of promoting the welfare of animals for which a person is responsible, or the progeny of such animals.


3.2.2 As the AWA stands, Section 9, which relates to meeting of the behavioural needs of kept animals, requires that a person who is responsible for an animal must, inter alia, ensure that it is protected from ‘pain, suffering, injury and disease’. Section 9, as it refers to animals for which a person is currently responsible, does not apply to ‘offspring’. However, it would be particularly valuable were new secondary legislation developed to ensure that, to the extent a person’s actions may affect the future welfare of offspring of a currently kept animal, that similarly they have the responsibility to protect such offspring from ‘pain, suffering, and disease’ (n.b. ‘injury’ to such offspring would be excluded as it could not be viewed as something over which an animal’s keeper had control at the point of allowing or enabling conception by breeding animals together).


3.2.3 It is suggested that the primary principle that any such secondary legislation would enshrine would be that:


‘A duty is imposed on breeders when selecting (e.g.) dogs or cats for breeding to have regard to the anatomical, physiological and behavioural characteristics which are likely to put at risk the health or welfare of the progeny or the female parent’.


More detail as to circumstances under which such consideration would be important, the actions a breeder would be required to take to satisfy this requirement, and what failures to act would constitute offences could be set out in the regulations themselves with detailed guidance provided by an accompanying specific Code of Practice for the Breeding of Dogs. The Act accommodates drafting of Codes of Practice at Section 14 in support of the legislation.


3.3 Responsibility of licensed breeders


3.3.1 Population estimates of the dog population in the U.K. for which the most recent reliable data are available (in 2011) range between 10.7 and 12.5 million dogs, with a mid‐point of c. 11.6 million dogs16. To maintain this population it can be inferred, assuming median age at death of 12 years17, that likely over 900,000 puppies are produced each year to be kept in the U.K.


3.3.2 An important minority of such puppies are produced by dog breeders subject to licensing by local authority, estimated to be of the order of 70,000 per year. These current numbers relate to the extant licensing regulations which, by default, specify that any breeder, whether operating commercially or not, producing more than 5 litters a year requires a licence. New animal establishment licensing regulations15 will lower the default licensing threshold to three litters or more bred per year, which may be anticipated to result in a higher number of puppies produced within the licensing regime, though it is uncertain by how many. There is additionally evidence that even under the current regulations a significant number of breeders are likely to be operating illegally, above the licensing threshold, which have the potential to be brought within it.


3.3.3 To reinforce the expectation that responsible breeding decisions are taken which protect offspring from inherited disease, it is important


that the licensing regime is also used to impose requirements on dog breeders to have a duty of care when making breeding decisions. Wherever breeders of dogs (and potentially other companion animals) are subject to licensing they should be required to have due regard when selecting breeding parents to factors that may prejudice the welfare of offspring.


3.3.4 The animal establishments licensing regulations15 which have been laid before Parliament in February 2018 contain the condition with respect to dog breeding establishments that:


‘No dog may be kept for breeding if it can reasonably be expected, on the basis of its genotype, phenotype or state of health that breeding from it could have a detrimental effect on its health or welfare or the health or welfare of its offspring’. Schedule 6, 6(5).


3.3.5 In the event that a local authority was satisfied that a licence applicant did not apply this condition then it would be grounds for refusal of a licence. Where it was subsequently found (eg after licensing) that the licensee was in breach of the condition then a licence might be revoked or suspended (according to provisions in the new Animal Licensing Establishment Regulations), or provide a basis for prosecution through a magistrate’s court.


3.3.6 While it is very important that this condition is included in licensing conditions, it must be recognised that, in practice, it may be difficult to enforce. The clause places a considerable demand and burden on an inspecting licensing official to be able to appraise and obtain evidence of appropriate consideration by a breeder of suitability of dogs used for breeding. While guidance to local authorities in application of conditions will be available to them, this is unlikely to fully equip officers with the resources and skills needed to apply the condition in practice, as the factors to be taken into account may be technical and complex.


3.3.7 Nonetheless, inclusion of the condition is welcome firstly in communicating expectations to dog breeders. It may also may have the potential to support enforcement action including prosecution, particularly where breaches of the condition are brought to light by consumer complaint. To date, there has been a disjunction between complaints made to local authority trading standards departments by


consumers most often concerning ill‐health of puppies purchased, including genetic illness, and any action taken with respect to the continued licensing of the premises. The inclusion of the new condition relating to breeding decisions has the potential to bring these together, such that where substantiated complaints occur of poor breeding practice that the local authority may apply its powers to refuse, suspend or revoke a licence.


4 Law and science


4.1 The issue of inherited disease in dogs or other animals is a complex one. This is particularly the case as any particular condition may be determined by a number of factors including both environmental and genetic ones. This should not, however, preclude the potential penalisation of those breeding dogs under circumstances where the evidence is that the breeder has failed to take reasonable care to avoid risks of this happening, or where the breeding decision has led to unnecessary suffering of offspring.


4.2 Adverse effects from hereditary conditions may occur through three primary causes. These are firstly the breeding together of closely related individuals (‘in‐breeding’). As a consequence of in‐breeding offspring are at increased likelihood of inheriting identical genes at particular loci on the genome. This increases the likelihood of expression of deleterious characteristics which depend on two copies of a gene being present. It more generally increases the proportion of genes where both copies of the gene are identical, which has adverse effects through other mechanisms. Secondly, adverse effects can arise by the breeding of parents which carry genes responsible for disease. Thirdly, adverse effects can arise where dogs of particular conformations (likely determined by many genes) are bred together to produce offspring with extreme conformations which affect health and welfare. Breeders may be responsible for causing harms to offspring through any of these routes.


4.3 There is likely to be a continuum of circumstances with respect to the certainty with which a breeding decision may be viewed as failing to demonstrate an appropriate duty of care. There are likely to be circumstances where a breeder’s decision can be understood to be the likely direct necessary cause of subsequent suffering and that they


should reasonably choose not to pursue such a decision. Such a circumstance might include, for example, one where there is evident disease with a known strong genetic component but a dog is used as a parent in any event. It might also apply where, for example, while disease is not evident (ie visible or palpable) in a breed susceptible to high incidence of genetic disorders, that a breeder fails to undertake relevant assessments (eg tests) prior to mating given known risks.


4.4 Expert witness testimony is likely to be critical in practice in determining whether the actions of a breeder may constitute failure to properly exercise a duty of care, and had the potential to cause adverse welfare outcomes with a high level of certainty, and whether or not they may reasonably have anticipated this.


5 Sentencing


5.1 Sentencing guidelines to courts in relation to offences committed emphasise two key factors. The first is the severity or degree of harm caused and the second is the culpability of the offender. With respect to the latter, the highest level of culpability is associated with acts that intentionally cause harm, the second level is where actions are pursued recklessly ie with knowledge that the action has the clear potential to cause harm, and the third level is where actions are pursued negligently, without sufficient care or attention where such care would have been reasonable.


5.2 Penalties are set correspondingly with intentional acts of high severity of outcome being placed at the highest sentencing point. Actual sentences applied then depend on defined aggravating or mitigating factors which may increase or reduce the sentence appropriate around this starting point. The Sentencing Guidelines for animal welfare offences have recently been revised in the direction of increased stringency13. Moreover, the Government has recently published a Bill14 which would increase maximum sentences for animal welfare offences.


5.3 The sentencing framework provides courts with a high degree of flexibility with respect to penalties. This should help pursuit of regulation to prevent the harms arising from the irresponsible breeding of dogs and other animals as it enables a nuanced response to offences which will vary considerably in severity of outcome and culpability of the offender.


5.4 The Dog Breeding Reform Group (DBRG) has concerns about any breeder who fails to demonstrate a duty of care to offspring when breeding dogs together. However, DBRG is particularly concerned about those breeders who systematically and repeatedly breed from parents carrying serious genetic defects. We are also highly concerned about those breeders who seek to produce dogs with extreme conformations to meet fashions for these, despite high degree and long duration of suffering of dogs that can arise. Where there is evidence of consistent failure to exercise a duty of care when breeding dogs, particularly in pursuit of commercial gain (as the revised sentencing guidelines highlight), then not only should conviction be possible, but appropriate penalties should be able to be applied with deterrent effect.



6 Recommendations


·    That the Government brings forward secondary legislation under the AWA imposing a duty on breeders to have regard to relevant factors likely to put at risk the health and welfare of offspring.


·    That a dedicated Code of Practice for the Breeding of Dogs consistent with new secondary legislation and the broader provisions of the AWA is developed


·    That detailed Guidance is provided to local authorities regarding the application of a requirement that to be licensed a breeder must demonstrate a duty of care towards offspring when taking breeding decisions. Further, that relevant competences are defined for inspecting officials and suitable training is provided to them.


·    That local authorities be encouraged to consider the complaints history of a breeding premises, with respect to ill‐health in both the short and long‐term of puppies purchased, as a basis for refusing, suspending or revoking licenses and, in appropriate cases, prosecution for breach of specific licensing conditions.




1 Rooney, N. and Sargan, D. (2009) Pedigree dog breeding in the UK: a major welfare concern? A report commissioned by the RSPCA.‐dog‐ breeding‐rspca.pdf


2 Associate Parliamentary Group for Animal Welfare (2012) A healthier future for pedigree dogs. House of Commons.‐breeding‐ report‐2012.pdf


3 Bateson, P. (2010) Independent inquiry into dog breeding. Micropress Ltd.‐into‐ dog‐breeding.pdf


4 Fowler, C. (2017) Dog breed health: a guide to genetic issues for dog breeds.


5 Universities Federation for Animal Welfare (UFAW) (2017) Genetic welfare problems of companion animals.


6 Rooney, N.J. and Sargan, D.R. (2010) Welfare concerns associated with pedigree dog breeding in the UK. Animal Welfare. 19(S): 133‐140. d_with_pedigree_dog_breeding_in_the_UK


7 Packer RMA, Hendricks A, Tivers MS, Burn CC (2015) Impact of Facial Conformation on Canine Health: Brachycephalic Obstructive Airway Syndrome. PLoS ONE 10(10): e0137496.


8 Dog Breeding Reform Group (2017) Health and welfare of brachycephalic dogs. n_health_and_welfare_of_brachycephalic_dogs.pdf


9 Nationwide (2017) Brachycephalic disease prevalence study.‐ content/uploads/2017/03/NWBrachycelphalicStudy0317.pdf


10 British Veterinary Association (2017) Stop normalising suffering: vets speaking out about brachys.‐campaigns‐and‐policy/bva‐community/bva‐blog/stop‐ normalising‐suffering‐‐vets‐speaking‐out‐about‐brachys/


11 Pedersen,N.C., Pooch, A.S., Liu, H. (2016) A genetic assessment of the English bulldog.. Canine Genetics and Epidemiology. 3:6. DOI: 10.1186/s40575‐016‐0036y.


12 EU Dog and CatAlliance (2016) The welfare ofdogs and cats involved incommercial practices: a review of the legislation across countries.‐cat alliance‐national‐legislation‐report.pdf


13 Sentencing Council (2017) Animal cruelty (revised 2017)


14 Animal Welfare (Sentencing and Recognition ofSentience) Draft Bill.‐sentencing‐and recognition‐of‐sentiencebill‐2017


15 The Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018 _en.pdf


16 Murray, J.K., Browne, W.J., Gruffydd‐Jones, T.J. (2015) Assessing changes in the U.K. cat and dog population: numbers and household ownership. Veterinary Record. UK_pet_cat_and_dog_populations_numbers_and_household_ownership


17 O’Neill, D.G., Church, D.B., McGreevy, P.D., Thomson, P.C., Brodbelt, D.C. (2013) Longevity and mortality of owned dogs in England. The Veterinary Journal. 198. 638‐ 643/‐statistics/general‐breeds‐specific disease‐inform/populaton‐based‐data‐from‐veterinarians‐insurance databases/longevity‐and‐mortality‐of‐owned‐dogs‐in‐england‐r247/


18 Companion Animal Welfare Council (2006) Breeding and welfare of companion animals. modifications.pdf


19 Asher, L., Diesel, G., Summers, J.F., McGreevy., P.D., Collins, L.M. (2009) Inherited defects in pedigree dogs. Part 1: Disorders related to breed standards. The Veterinary Journal. 182(3) 402‐411


20 Summers, J.F., Diesel, G., Asher, L., McGreevy,P.D., Collins, L.M. (2010) Inherited defects in dogs. Part 2: Disorders that are not related to breed standards. The Veterinary Journal. 183(1) 39‐45


21 Mike Radford, Reader in Animal Welfare Law, Aberdeen University. Personal communication. February, 2018.

Jude Simonds

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