A compromising end to the smacking debate. Was the Lester amendment necessary?

A compromising end to the smacking debate?  Was the Lester amendment

necessary?

By Kay Ma, LLB

 

Abstract

 

The Children Act 2004 s.58:  Politicians call it a ‘compromise’; critics call it a ‘fudge’.  Was the Lester amendment really necessary?


To answer this question certain issues need to be addressed.  The first is why the law on the physical chastisement of children by their parents needed to be changed?  This leads to the question of whether the reasons given for change are justified.  It can be assumed that the government felt these reasons were justified, so the question remaining is does the Lester amendment satisfy these reasons?

 

The starting point of research for the purposes of answering these questions comes from Parliamentary debates and the media.  By following Parliamentary debates, dating back to 30th March, (when reasonable punishment was first made an issue in the passing of the Children Act 2004), greater understanding to the reasons that members of Parliament gave to reforming the law.  From these debates, the main arguments for reform can be extracted, analysed and applied to the Lester amendment.  Newspaper articles, (dating back to 5th July 2004, when Lord Lester first proposed his amendment), also provide the basis of research into the amendment’s progress in Parliament, as well as show how much the public awareness there has been on the issue.

 

Broader research includes the use of textbooks, articles and case-law.   These are of particular use for analysing the pre-Children Act 2004 law and why legislators felt compelled to change it.  It is also important for the purposes of showing whether change was justified to establish the views of legal commentators on the old smacking laws.  Again, this was done through reading texts.  Often commentators either give supportive reasons for a ban on physical punishment or retaining of physical punishment and the reasonable chastisement defence.  However, neither are the case in the Lester amendment (hence it is an alleged ‘compromise’); these commentators’ views must be applied appropriately to a set interpretation of where the Lester amendment stands in the topical smacking debate.  This dissertation views the Lester amendment as a progression towards a ban, thus research applied is often of a critical nature towards the ban and supportive of status quo.

 

Research is not restricted to domestic law; it expands to European law and the law in Sweden.  Sweden has been picked as it is most used in comparative analysis to the law in countries without smacking laws.  Internet resources are used extensively in this area of research, including online articles from an international, non-governmental organisation website (www.nkmr.org) and personal communication (via e-mail) with a professional in the area of law focused on.

By using various forms of research to address the issues raised at the start of this abstract, conclusion can be reached showing that the Lester amendment was not necessary.

 

 

 

 

 

 

Contents

 

Introduction…………………………………………………………………………………..1

 

Chapter 1: Should children have equal rights to protection as adults do in assault laws and has the ‘Lester amendment’ given children such equality?..........................................6

1.1.    What is meant by ‘equal rights’ in assault laws?...............................................................6

1.2.    The context of the administration of the smack (‘assault’)………………………………7

1.2(a) Different relationships, different contexts………………………………………...7

1.2(a)(i) Parental discipline………………………………………………………………8

1.2(a)(ii) A parent protecting his/her child……………………………………………….9

1.2(b) Common law requirement to look at the context………………………………...10

1.3.  The status of children…………………………………………………………………...12

1.4.  Conclusion………………………………………………………………………………15

 

Chapter 2: The Nanny State or ‘Working in Partnership with Parents’……………….17

2.1.      Introduction to the terms ‘nanny state’ and ‘constructive partnership’……………....17

2.2.      Ideology: State Paternalism…………………………………………………………..18

            2.2(a) State Paternalism and the Smacking Debate…………………………………..20

2.3.      A political agenda behind opting for a ‘compromise’ instead of a ban?......................21

2.4.      Conclusion……………………………………………………………………………21

 

 

 

 

Chapter 3: The European Influence…....……………………………………………...…..23

3.1.            Sweden: A beckoning force?.......................................................................................23

3.1(a) The effectiveness of the ‘non-punitive’ approach…………………………….25

3.1(b) Mortality rates linked to child abuse………………………………………….27

3.1(c) Statistics on assaults…………………………………………………………..29

3.1(c)(i) Assaults on children………………………………………………………...29

3.1(c)(ii) Assaults by children………………………………………………………..30

3.2.      The effects of smacking bans on Human Rights……………………………………..30

3.3.      Conclusion……………………………………………………………………………32

 

Conclusion…………………………………………………………………………………...34

Appendix 1…………………………………………………………………………………..39

Appendix 2…………………………………………………………………………………..40

Bibliography…………………………………………………………………………………..41

 

 

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